Ontario construction workers may be surprised to find that they have different rights to overtime pay, severance pay and holidays or vacation than other workers.
Where does the right to overtime and severance pay come from?
The Employment Standards Act, 2000 (ESA) governs minimum employment standards for Ontario employees. It sets the minimum wage, hours of work, when overtime kicks in, vacation time and public holidays. But the ESA doesn’t apply all the time or to every type of worker. Importantly, in the construction industry “special rules” and “exemptions” apply to things like termination and severance pay. Although an employment contract or collective agreement can give you more rights than the ESA, they can’t give you less.
Am I a construction worker? Or a maintenance worker? Does it matter?
Different rules apply to construction workers than to maintenance workers, even if the jobs seem pretty similar.
The law defines the “construction industry” as “businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site.”
It doesn’t define “maintenance,” and the difference between the two have been hotly debated in litigation. If you’re unsure where you fall, talk to a labour lawyer or your union.
Construction Workers’ Rights to rest, holidays, overtime and severance pay
For construction workers, the ESA does not set maximum daily or weekly limits on hours of work, daily or weekly or bi-weekly rest periods, minimum periods of time off between shifts, or rules for notice of termination/termination pay and severance pay. Instead, employees have to look to their contracts or union collective agreements for these rights.
Likewise, the law treats construction employees differently when it comes to public holidays and vacation. Unlike most Ontario employees, if a construction worker has been employed for less than five years and receives 7.7% or more of their wages in vacation or holiday pay, they are not entitled to additional public holiday time and pay. For employees employed for five years or longer, this increases to 9.7%.
Road Builders’ Rights to Overtime and Severance Pay
In addition to the special rules and exemptions for construction workers, more special rules and exemptions apply to “road building.” Road building can involve things like constructing or maintenance of streets, highways, parking lots, bridges, tunnels or retaining walls in connection with streets or highways.
Road maintenance workers, like construction workers, don’t have ESA protections around daily or weekly limits on hours of work, daily rest periods, time off between shifts, weekly or bi-weekly rest periods. However, the ESA does require Ontario employers to pay road maintenance workers termination pay (or provide notice) and severance pay.
When it comes to overtime, there are special rules and exemptions for road construction or road maintenance work. The type of structure being built matters.
If you construct streets, highways, or parking lots, at a minimum or do road maintenance work (like snow removal), you are entitled to overtime pay for each hour of work that you work over 55 hours in a work week. However, your employer is allowed to roll over up to 22 hours of your overtime hours you into following weeks, provided you worked less than 55 hours in those weeks. A similar rule applies to construction workers who construct bridges, tunnels or retaining walls in connection with streets or highways, except their overtime pay entitlement starts after 50 hours in a work week. This is in sharp contrast with most Ontario employees, who get overtime after 44 hours under the ESA.
Sewer and Watermain Workers’ Rights to Overtime and Severance Pay
If you lay, alter or repair sewers and watermains, additional exemptions and special rules apply. Sewer and watermain construction workers are entitled to receive overtime pay for every hour worked above 50 hours a week.
Like other construction workers, sewer and watermain maintenance workers are not entitled to severance pay under the ESA.
Many factors can affect an employee’s entitlements to things like overtime and severance pay, including employment contracts and union collective agreements, as well as the many special rules and exemptions in the ESA.
For more information about special rules and exemptions, the Ontario Ministry of Labour provides this accessible special rule tool, or contact your union or an employment lawyer to discuss your specific entitlements.
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