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The Law of Work
Law of Work Archive

Employment Standards Act Exclusions: The "Crown" Exclusion

by David Doorey August 6, 2009
written by David Doorey August 6, 2009

When I teach employment standards legislation, we always spend some time going through the multitude of exceptions in the legislation, workers to whom all or part of the legislation does not apply.  Many of these exclusions are buried in Regulations, which are not easy to find for your average worker.  Here is the link to the many ESA Regulations, many of which include exclusions from the legislation. I ask students to try and figure out the policy explanation for the exclusion.  Often we can’t find one.
Regulation 285 in particular is chalk full of jobs that are not entitled to the protection of the ESA.  For example, workers employed in the following jobs are not entitled to holiday pay:  people employed in the keeping of furbearing mammals for the purpose of pelts; people who lay sod; taxi drivers; fishing guides; people who install or maintain swimming pools; and people ’employed as a student’ to instruct or supervise children or students who work at camps for children.
Apparently, some politician must have been really pissed off when his pool installers took a statutory holiday.  I’m only half joking.  As Geoffrey England has noted, “The economic justification for some of these exemptions and exclusions is questionable, leaving the impression that political lobbying is sometimes the dominant factor.” [“Employment Law in Canada”, p. 122]
A story circulating the press recently involved the Ontario government’s decision to stop paying students working at provincial parks vacation and statutory holiday pay.  Apparently the government had paid the students a lump sum of between $400-600 for these amounts for years in the past.  But in the last round of bargaining (the workers are unionized), the employer announced it would stop doing that.  Presumably, the union was unable or did not try to bargain that benefit into the collective agreement, and in fact, the Crown (the government employer) is exempt from having to pay vacation and holiday pay in the ESA. That exemption appears in the ESA itself, in Section 4, which provides that only certain sections of the ESA apply to the Ontario government as an employer, and holiday and vacation pay is not one of them.
What do you think about these exclusions?  Do you think that entitlements to basic minimum employment standards should depend upon what sort of job you perform, or who your employer is?

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

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