Ontario Bill 63 amends ESA to limit 60-hour work week

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On April 26, 2004, the Ontario government tabled Bill 63, the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004. The Bill amends the Employment Standards Act, 2000  to prohibit employers from requiring employees to work more than 48 hours in a week unless the employee agrees to do so in writing and the employer receives approval from the Ministry of Labour. Under the current legislation, employees may agree to work up to 60 hours a week without Ministry approval. Approval is required only if the hours exceed 60. If passed, the Bill will become law on January 1, 2005.

MINISTRY APPROVAL

While the Bill requires Ministry approval for agreements to work more than 48 hours a week, no approval will be required for agreements to work more than eight hours a day. Similarly, if an employer has established a regular work day of more than eight hours, agreements to exceed the hours in that work day will not require Ministry approval.

Under the Bill, 30 days after an employer applies for Ministry approval, even before approval is granted, an employee who agrees to work extra hours may work more than 48 hours, up to a maximum of 60 hours in a week, as long as

  • the approval is not refused;
  • the employer’s most recent previous application, if any, for approval was not refused or revoked;
  • the employer has posted a copy of the application for approval in the workplace so that it is likely to come to the attention of the employee; and
  • the employee’s hours of work are not more than the number of extra hours agreed to or the number of hours specified in the employer’s application for approval.

In deciding whether to grant approval, the Ministry will be entitled to take any factors it considers relevant into consideration, including any current or past contraventions of the Act by the employer, the health and safety of employees and any factors set out in regulations under the Act.

The Ministry will be able to grant approvals in relation to specified classes of employees. All of an employer’s employees may constitute a specified class. A “class” approval will apply to all employees in the class, whether or not an employee is employed at the time the approval is granted.

Employers will not be able to use subsection 5(2) of the current Act – which states that a contractual employment term that provides a benefit greater than an employment standard prevails over the employment standard – to circumvent the requirement to obtain an approval if employees are working more than 48 hours.

Approvals granted under the current legislation that permit employees to work more than 60 hours will cease to have effect on January 1, 2005. Approvals granted by the Ministry under the new legislation may last for a maximum of three years, with the exception of approvals for work in excess of 60 hours, which are limited to one year.

AGREEMENTS

Unless an employee is represented by a trade union, agreements in relation to either the work day or the work week will not be valid unless

  • the employer first shows the employee a document prepared by the Ministry describing the employee’s rights in relation to hours of work, and
  • the agreement contains a statement by the employee acknowledging that the employer showed them the document.

As is the case currently, agreements will be revocable by the employee with two weeks’ written notice, and by the employer with reasonable notice.

Extra hours agreements entered into under the current legislation will be valid, but if they are for work in excess of 48 hours a week, Ministry approval will have to be obtained and, other than in the case of unionized employees, employers will have to provide the employees bound by the agreement with the Ministry document referred to above by April 1, 2005.

Employers will have to retain copies of hours of work agreements for three years after the last day on which work was performed under the agreement.

AVERAGING PROVISIONS

Currently, to determine an employee’s overtime entitlement, employers and employees may enter into agreements to average the employee’s hours of work over a period of up to four weeks without Ministry approval. The Bill will make approval mandatory for all averaging agreements.

The Bill’s averaging provisions, which deal with a 30 day period after which the agreement can take effect, the treatment of approvals obtained under current legislation, record retention and the criteria applied by the Ministry to grant approval, are similar to its provisions in connection with the hours of work agreements.

PUBLICATION OF CONVICTIONS

The Bill authorizes the Ministry to publicize information about companies or individuals convicted of offences under the Act. The information, which may be posted on the Internet, will include the company or individual’s name, a description of the offence and the penalty imposed. These disclosures of personal information will be deemed to be in compliance with the Ontario Freedom of Information and Protection of Privacy Act.

In Our View

While the government has framed the new legislation as intending to end the 60-hour work week, a 60-hour work week will still be permissible as long as the employee’s agreement is approved by the Ministry of Labour. Moreover, under the Bill, Cabinet can make regulations prescribing terms and conditions of employment for defined industries and providing that those terms and conditions prevail over other provisions of the Act. As a result, employers in certain defined industries – or in some workplaces within those industries – will still be able to make agreements with their employees to work more than 60 hours a week.

We will keep readers advised of developments as Bill 63 is debated by the Legislature.

The entire text of the legislation can be found at http://www.ontla.on.ca/documents/Bills/38_Parliament/
Session1/b063_e.htm.

Government information on the Bill can be found at http://www.gov.on.ca/LAB/english/news/2004/04-53f.html.

For further information, please contact Colleen Dunlop at (613) 940-2734.