How is Travel Time Treated Under the Employment Standards Act, 2000?

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This is an important question, as it impacts such issues as whether travel time is paid, whether those hours factor into hours of work restrictions, overtime calculations and determining vacation pay. Surprisingly, the answer is not an easy one.

The issue often arises in determining whether travel time to various job sites is captured as “hours worked”. Unfortunately, this is not clearly defined in the Employment Standards Act, 2000 (“ESA”) or its regulations. Labour Board decisions, arbitral decisions and secondary materials assist in investigating this issue.

Generally, this analysis is very fact specific and therefore should be determined on a case by case basis. However, the decisions and materials generally clarify that “commuting time” including travelling to and from work is not seen as compensable work (unless agreed upon otherwise), subject to some exceptions. Travel to various job sites or to training is less clear. Generally, the decisions and materials suggest that an employee has a greater likelihood of having travel time viewed as compensable work if she/he is travelling in an employer vehicle from the employer’s premises to a worksite (including from one job site to another throughout the course of the day) and from the last job site back to the employer’s premises. If the employee is being picked up at a central meeting location that is not on the employer’s premises, some decisions have used that feature to distinguish the situation to being non-compensable working time. If an employee drives themselves in their own vehicle to a worksite, that time is less likely to be seen as compensable work. If training is mandatory it is likely that travel time would be captured, whereas it is less likely to be captured if it is optional training.

In conclusion, the issue is anything but straightforward and requires a detailed analysis based on the particular characteristics of your workplace travelling situation and contrasting that to the divergent decisions on this topic.

 

Topics:  Employment Standards Act, Over-Time, Travel, Vacation Pay

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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