Legislation Introduced to Repeal 60-Hour Workweek

HRinfodesk---Canadian Payroll and Employment Law, April/May 2004

On April 26, 2004, the Ontario government tabled legislation that significantly amends the Employment Standards Act. The Bill entitled: Employment Standards Act (Hours of Work and Other Matters) repeals the 60-hour workweek, modifies existing averaging overtime provisions, and implements measures to increase awareness of workplace rights and responsibilities including rigorous enforcement of employment standards law. If the proposed amendments are enacted, they will come into force on January 1, 2005.

The 60-Hour Workweek

Amendments repeal the 60-hour workweek requiring employers who want employees to work more than the maximum 48 hours a week up to 60 hours a week to obtain beforehand permission from their employees and approval from the Ministry of Labour, Director of Employment Standards. This amendment ensures that employees have a choice to work long hours beyond the legal maximum without any pressure or coercion from employers. Currently, the Employment Standards Act allows employers to seek consent from employees to work between 48 and 60 hours a week without the approval of the Ministry of Labour, but only if a written agreement is drafted between the two parties.

Employers will be able to file an application for an extension of the workweek online or in writing to the Ministry of Labour. Employers must include a consent form from the employee(s) with the application. There will be no fee to file the application and a lead-in period would allow employers time to apply to the ministry before the law comes into force; however, some exceptions will allow employers to ask staff to work beyond 60 hours a week under special circumstances.

If the employer has applied for an approval and the Director has not yet made a decision on the application, employees may begin working the additional hours up to a maximum of 60 hours in a week, 30 days after the application is made, if the conditions are met.

In addition, in determining whether to approve the employer’s application for extended work hours, the ministry will consider the employer’s employment standards compliance history and health and safety records, including spot checks at some workplaces to ensure that written agreements are in place and employees have been given the Ministry of Labour produced information sheet that sets out employee’s rights about hours of work and overtime pay. Ministry approval would be for a maximum period of three years.

Agreements made before January 1, 2005 will remain valid, but employers will have to obtain approval from the director of Employment Standards if the hours exceed 48 in a week, and provide employees who signed those agreements with the information sheet by April 1, 2005.

Employees would still have the right to revoke their agreements by providing two weeks written notice to their employers, and employers will also be able to revoke the agreements upon reasonable notice.

Averaging Agreements

Employers and employees may continue to make written agreements to average hours of work for overtime pay purposes; however, employers will need approval from the Ministry of Labour, Director of Employment Standards to average overtime pay over a period of two to four weeks. Currently, employers are able to average work hours for the purpose of calculating overtime pay over a period of up to four weeks with the written agreement of their employees without approval from the Ministry of Labour.

If the employer has applied for an approval and the Director has not yet made a decision on the application, the employer may begin averaging, using averaging periods of up to two weeks, 30 days after the application is made, if the conditions are met.

Existing averaging agreements will remain valid, but employers will have to obtain approval from the director of Employment Standards.

Information Sheets

The Ministry of Labour will require employers to provide employees with a Ministry of Labour produced information sheet that sets out employee’s rights about hours of work and overtime pay.

Measures to Increase Awareness and Compliance

The government feels that awareness and knowledge of employment standards by employees and employers is critical to achieving increased compliance; accordingly, they intend to:

* Work to provide web based information to businesses so that they can easily learn about their rights and responsibilities to ensure compliance with the ESA.
* Act with community partners to get information to those who need it, especially recent immigrants who may not know their rights or have a rudimentary understanding of English or French.
* Make information available in a variety of languages.
* Provide a streamlined process for quicker turnaround and file closures.
* Inspect workplaces for compliance with all aspects of the ESA - with a special focus on high risk employers.
* Implement stricter enforcement of the laws, including prosecutions where warranted.
* Also, if convicted under the Act, corporations may be fined up to $100,000 for a first offence, $250,000 for a second offence, and $500.000 for a third or more offences. An individual can on each count be fined up to $50,000 or sentenced up to 12 months in jail or both.
* When a person is convicted of an offence under the Act, the person's name and other information about the offence, conviction and sentence may be published, including on the Internet.

Records Retention

Employers are required to retain copies of employee agreements for work hours in excess of the limits in the Act, and employee agreements to average hours of work for overtime pay purposes, for three years after work was last performed under them.

The provision requiring employers to ensure the ready availability of records and documents for inspection is amended to include records of vacation time and vacation pay.

Bill 63 can be accessed at the Legislative Assembly of Ontario.

By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk---Canadian Payroll and Employment Law

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