File photo
The Yukon Supreme Court reviewed an Employment Standards Board decision on longer shifts for mine workers.

File photo The Yukon Supreme Court reviewed an Employment Standards Board decision on longer shifts for mine workers.

Yukon court rules on long shifts for self-isolating mine workers

The territory’s Director of Employment Standards initially rejected a proposed averaging agreement.

A Yukon Supreme Court Judge reviewed and upheld a decision by the territory’s Employment Standards Board allowing a group of mine workers to proceed with a six-week-on, six-week-off shift and averaging agreement.

Orica Canada Inc., a branch of a multinational mining supply and support service firm, applied to the Yukon Director of Employment Standards for the approval of an averaging agreement after the self-isolation requirement for outside workers entering the territory came into effect. Orica had been providing mine workers to a company operating a gold mine north of Mayo.

The averaging agreement would have allowed workers at the mine to enter the territory for a six-week-on six-week-off rotation, with the first two weeks spent quarantining in Whitehorse as specified by the Yukon Government’s border restrictions.

The employees affected consented to this but the director refused the application, citing a provision of the Employment Standards Act that states employees are entitled to four consecutive days of rest if they are required to work 28 days continuously. The court decision, finalized on May 20, states that the director found the 12-week averaging agreement was too great a compromise of employees’ minimum standards to be allowed.

Orica appealed the director’s decision with the Employment Standards Board, arguing that the two-week self-isolation period was not work. The board allowed the appeal.

The five-member board, which is appointed by the Minister of Community Services, is in place to hear appeals of decisions made by the director. The board is made up of a chair, two members who represent employers and two members who represent employees. Board members are appointed to terms of three years or less and their appointment is approved through cabinet.

The Supreme Court decision explains there is no definition of work presented in the Employment Standards Act. The board found that the self-isolation period was not “work” in the ordinary use of the word.

“Rather, what Orica was paying for was not a service but a readiness period that was not work. The board also said that the director’s decision was not reasonable because of the unique and unprecedented situation created by the pandemic,” the judgement reads.

A judicial review of the board’s decision was launched bringing it before the courts.

The review came down to whether the 14-day self-isolation period constituted work.

The judge notes that the director cited past cases in which travel time, sleeping time, time away from family and idle time waiting for an event that triggers the need for the worker to apply his or her skills were considered work.

The judge found that the board considered the term “work” in its common meaning and also how it is dealt with in the act. Lacking a definition of work in the act, the judge found the board’s conclusion reasonable.

“It acknowledged that the workers were being paid for the self-isolation period, that Yukon was in a period of unprecedented upheaval because of the pandemic. Its colloquial description of what needed to be done because of that upheaval — ‘out-of-the-box thinking’ — makes sense and is reasonable,” the judge’s decision reads.

The Judge dismissed the application to quash the board’s decision.

Yukon Chamber of Mines President Ed Peart said the chamber of mines knows that workers from outside the Yukon are essential to mining and mining exploration in the territory and serve as an important compliment to the local Yukon workforce.

Contact Jim Elliot at jim.elliot@yukon-news.com

Yukon courts

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