By Mary Lou H. Brady
IN JUST over one week, new laws will govern whether employees of provincially-regulated employers can work excess daily and weekly hours. These new laws will also govern whether their employers can average hours of work for overtime purposes.
What does this mean for you? And are you prepared?
If you're an employee, these new laws will mean that you cannot work more than 48 hours in a workweek -- even if you want to do so -- unless a number of things have happened.
First, your employer will generally need to give you a special form. This form is available on the Ministry of Labour website and advises you of your rights under the hours of work and overtime provisions of Ontario's Employment Standards Act, 2000 (the "ESA").
It must be given to you before you sign an agreement to work more than 48 hours, unless you sign that agreement before March 1, 2005 (in which case you have until June 1, 2005 to receive this form).
Second, you will need to sign a written agreement to work more than 48 hours. If you are represented by a trade union, it can sign on your behalf.
The written agreement must set out the specific number of excess weekly hours that you are agreeing to work. If you sign the written agreement after Feb. 28, 2005, it must also acknowledge that you received a copy of the special form mentioned above.
Third, your employer will need to obtain the Director of Employment Standards' approval of your agreement to work excess weekly hours. The Director may grant approval "if the Director is of the view that it would be appropriate to do so."
The Director may consider any factors that he or she considers relevant, including your employer's health and safety record and its history of employment standards compliance.
For example, the Director could refuse to allow you to work more than 48 hours in a workweek if your employer has a history of violating the ESA or could later revoke an approval on that basis.
As you can imagine, the Director will be receiving a tremendous number of applications for consideration and the backlog is expected to be great. Do not despair! If the Director hasn't made a decision on your employer's application within 30 days after it is filed, you will be able to start working the excess weekly hours -- up to a maximum of 60 hours in a workweek -- so long as certain conditions are met.
If you're an employer, you will still need to ensure that you have written agreements with each employee (or their trade union, if applicable) who you expect will need to work more than 48 hours in a workweek from time to time.
If you don't, your employees can only work excess weekly hours in "exceptional circumstances" such as true emergencies or where urgent repair work is required.
You will also have obligations, as mentioned earlier, to provide your employees with the special form referenced above. These obligations will depend on when your employees each sign written agreements to work excess weekly hours.
Most important, as an employer, you will need to complete and submit the application form for the Director's approval as soon as possible.
There is no fee for doing so and there are many ways to submit your application. These include fax, verifiable mail, in person or electronically. The application form, along with the Ministry's "Employer's Guide to the Application Process" are found online at: http://www.gov.on.ca/LAB/english/es/hours/index.html
You will also need to post (and keep posted!) a copy of each application form in your workplace.
If an approval is received, you must replace the application form with the approval notice. On the flip-side, if a refusal is received, the posted application form must be replaced with the refusal notice. Refusal notices may be removed 60 days after the date they are issued.
The new laws also affect overtime averaging agreements. You may continue to make written agreements with your employees to average hours of work for overtime pay purposes. The difference, as of March 1, 2005, is that you must obtain approval from the Director before any averaging occurs.
That said, if 30 days pass without a decision, you can start averaging your employee's hours of work over a period of two weeks -- again so long as certain conditions are met. Approval notices must be posted (and remain posted) until they expire or are revoked.
All in all, it is important for everyone (especially for employers) to be aware of their rights and obligations under these new laws.
'ENFORCEMENT IS BACK IN STYLE'
Labour Minister Chris Bentley was quoted last spring as stating: "The law as written contains enforcement tools, they just need to be used. Last year, there were more than 15,000 claims against employers and only one prosecution was started. Starting today, enforcement is back in style."
No one wants to be prosecuted for non-compliance, so take the required steps to avoid it!
For more information on these new laws, you should speak with your legal advisor or visit the Ministry's website at www.gov.on.ca/LAB/english/es/hours/index.html
(Mary Lou Brady is a lawyer practising exclusively in the area of management-side labour and employment law at Siskind, Cromarty, Ivey & Dowler LLP as part of its new Labour & Employment Group. Siskind has offices in Toronto, London, Windsor, and an affiliated office in Quebec City.)
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