Elect-to-work and on-call or standby employees – IPG-110

Effective date: February 1, 2022

Revised date: June 4, 2024

On this page

• Subject
• Issue
• Definitions
• Interpretation
• Examples

This interpretation, policy and guideline (IPG) is not applicable to classes of employees who are subject to the exemptions or modifications to sections 173.01 and 173.1 as per the regulations. For more information on classes of employees in relation to the exemptions and modifications, visit Exemptions from and Modifications to Hours of Work Regulations.

Note: “employees” also includes “interns”. Student interns are subject to the interpretation of this IPG.

Subject

This IPG aims to clarify how sections 173.01 and 173.1 of Part III of the Canada Labour Code (Code) apply to certain employees that have:

• no regular work schedule, or
• some periods where they are on-call or standby

Issue

The following provisions have been added to the Code:

• notice - work schedule - 173.01, and
• shift changes - 173.1

To ensure a consistent interpretation and national application of the above sections of the Code, clarification is required on how the provisions on notice of work schedule and shift changes apply to certain employment categories.

There is a need to clarify in which manner sections 173.01 and 173.1 of the Code apply to the following categories of employment:

• elect-to-work
• on-call, or
• standby employees

Definitions

Elect-to-work employees:

Employees who are free to decide to work or not when their employer offers them a work assignment. These employees can choose to work or not without any penalty or adverse effect on their employment.

On-call or standby employees:

Employees who are called in by their employer to work during a specific period. The employer expects these employees to report to work if called upon to do so.

Other terms for the categories of employment defined in this IPG 

Employers may use other terms in different sectors or workplaces to refer to the categories of employment; elect-to-work, on-call or standby. However, if a type of employment matches the description of any of the categories of employment defined in this IPG, it should be considered as an elect-to-work, on-call or standby employment situation.

Interpretation

The application of sections 173.01 and 173.1 of the Code for elect-to-work and on-call or standby employees is as follows.

The Code includes sections 173.01 and 173.1 to help employees achieve a better work-life balance, by providing them with advance notice of:

• their schedule, or
• a change to a shift

The explanations below will assist in determining whether elect-to-work and on-call or standby employees are considered to have received the notice as per sections:

• 173.01, and
• 173.1 of the Code

An employer satisfies the requirement of section 173.01 of the Code if they provide their employee with a written notice of their work schedule:

• at least 96 hours before the start of the employee’s first work period or shift under that schedule, and
• includes any period of on-call or standby

An employer satisfies the requirements of section 173.1 of the Code if they provide their employee with 24 hours’ written notice before:

• changing a period or shift during which an employee is required to work
• adding a period or shift to the employee’s schedule, or
• adding or changing a period where the employee is scheduled to be on-call or on standby

When employees receive written notice to be on-call or standby, it would be unreasonable to conclude that these employees did not receive a notice as per sections 173.01 and 173.1 of the Code. This is because the employer notified the employees of their status for this given period.

Sections 173.01 and 173.1 of the Code do not apply to elect-to-work employees as they are in complete control of their schedule. The only way this category of employees works is if they choose to make themselves available.

The following criteria will be considered:

• whether the employee’s class of employment is subject to the Exemptions from and Modifications to Hours of Work Regulations under sections 173.01 and 173.1 of the Code
• whether the employee is exempted from the application of Division I of Part III of the Code under subsection 167(2)
• what the collective agreement provides for with respect to notice in the employee’s category of employment
• whether the employee is within a category of employment described in this IPG
• whether the employer complied with the requirements under sections 173.01 and 173.1 of the Code as clarified in the Government notice and this IPG with respect to on-call and standby employees, and
• analysis of the overall situation and the conditions of employment at the time of the dispute based on the facts presented during the investigation

Examples

Example 1

Joe works the day shift from Monday to Thursday for a total of 32 hours per week. As Joe agreed with his employer when he was hired, he is required to remain on standby to work the day shift on Fridays. Joe’s manager calls him Thursday evening asking him to report for work on Friday morning. Since Joe was aware and had agreed to be on-call on Fridays, the employer did not contravene the Code.

Example 2

Wanda has a work schedule that her employer planned over a 4-week period. When she receives her schedule for the next 4 weeks, she notices that she is on standby on the Monday and Tuesday in the third week. Although Wanda’s employer did not schedule her to work that week, she knows that this could change up to the last minute and her employer might call her in to work. If Wanda’s employer calls her in to work on the Monday and/or Tuesday during the third week, she would be presumed to have received her 24-hour shift change notice as per section 173.1 of the Code. This is because as stated in government notice an employer who provides 24 hours’ written notice before adding or changing a period where the employee is scheduled to be on-call or on standby, satisfies the requirements of section 173.1 of the Code.

Example 3

Ming works Monday to Thursday every week. His employment contract states that he must remain available to work every other weekend on Saturdays, when the employer receives last-minute contracts. The Saturdays on which he must be available appear clearly on his team calendar. Since Ming was aware he was on-call, the employer did not have to give him advance notice of a schedule change.

Example 4

Jacob works Tuesday to Friday and must remain available every Saturday. The employer calls Jacob on Saturday with a 12-hour notice, asking him to come in to do the inventory on the next day, Sunday. Because Jacob’s employer did not schedule him to be on-call on Sunday, he must provide him with 24 hours’ notice.

Example 5

Micheline is employed in a workplace where she is free to choose the days on which she is available to work for her employer as per their agreement. When she wants to work, she calls the employer in the morning to advise him of her availability. Micheline is an elect-to-work employee who controls her own schedule (as defined above). Therefore, her employer cannot give her notice of work schedules and changes in work schedules.

Example 6

Rachid, a computer specialist, has no specific schedule and is called in according to his employer’s needs. The employer calls substitute computer specialists to work by seniority. The specialist with the most seniority will be offered work before the least senior specialists.  This type of employee can choose to make themselves available for a shift or not. Minimum availability is required under the employment contract and Rachid informs the employer monthly of the shifts during which he is available to work. Rachid therefore selected the shifts in advance during which he would be on standby. His employer also informed him that he could be called in during the shifts in question. Rachid’s availability during the periods he chooses constitutes notice of his schedule and schedule changes.