On March 1, 2005, Bill 63 came into force setting out, among other things, rules to be followed by employers that want their employees to work in excess of 8 hours per work day and/or 48 hours per work week, or if they want to average their employees working hours to determine overtime pay entitlements. Bill 63 replaced the Employment Standards Act, 2000 provisions dealing with hours of work and overtime. Condominium corporations with employees and property management companies should take notice!

Maximum Daily and Weekly Working Hours

Pursuant to Bill 63, employers can only permit or require employees to work more than 48 hours per work week where the following takes place:

1. the employees have agreed to do so in writing;
2. the employer has applied to and obtained the approval of the Director of Employment Standards ("Employment Standards") for excess working hours per week; and
3. the employees' hours of work in a work week do not exceed the lesser of the hours specified in the agreement and the hours in the approval.

Similarly, no employer shall require or permit an employee to work more than 8 hours in a work day unless the employee has agreed to do so and the employee's hours of work do not exceed those specified in the agreement.

Employees can revoke most agreements to work excess daily and weekly hours by giving their employer 2 weeks' written notice, while employers may revoke agreements by providing reasonable notice to employees.

In the interim, pending approval from Employment Standards, an employee's hours of work may exceed 48 hours in a work week by satisfying the following conditions:

1. The employer and employees have entered into valid, written agreements respecting excess hours of work or averaging of weekly hours.
2. The employer has served the Application in the appropriate form on Employment Standards for approval.
3. The Application is applicable to those employees being requested to work extra hours or to average their weekly hours.
4. 30 days must have passed from the date that the Application was served on Employment Standards.
5. The employer has not received a notice that the Application was refused.
6. The employer's most recent previous Application for approval, if any, was not refused or revoked.
7. The employer has posted and kept posted a copy of the Application in at least one conspicuous location in the workplace.
8. In a work week, the employee(s) does not work in excess of (i) the hours of work specified in the Application, (ii) the number of hours agreed to between the parties in writing, and (iii) 60 hours.

Overtime Averaging Agreements

For most employees, overtime begins after they have worked 44 hours in a single work week. Upon obtaining this 44-hour threshold, employers must pay to employees at least one and one-half times their regular rate for each hour in excess.

Pre-Bill 63 - Overtime Averaging Agreements were used to average employees hours of work over a period of not more than 4 weeks to determine whether the employees would be entitled to receive overtime pay. The approval of Employment Standards was not required unless the averaging exceeded 4 weeks.

Post-Bill 63 - An employee and employer can agree to average employees hours of work over a period of 2 or more consecutive weeks for the purpose of determining overtime entitlement, provided that approval from Employment Standards is first obtained and the averaging period does not exceed the number of weeks specified in the agreement and/or granted in the approval.

How to Seek Employment Standards' Approval for Excess Hours

1. The employer must provide its non-union employees with the Ministry's publication entitled "Information for Employees About Hours of Work and Overtime Pay" prior to entering into an agreement with its employees;
2. The employer must enter into written agreements with each employee to consent to work the excess hours, or to average their working hours;
3. The employer must complete the Ministry of Labour's Hours of Work and Averaging Hours Application (the "Application");
4. The employer must serve the Application on Employment Standards at the prescribed address and in the prescribed manner; and
5. The employer must post at least one copy of the Application from the date of service on Employment Standards in every workplace in which the effected employees work, until the date upon which either approval is issued or refused by Employment Standards.

To find out more about these amendments to the Employment Standards Act, 2000, please contact us.