The original limits on working hours of women and children and youths created in 1884 were motivated by health and safety concerns. Although the 1944 legislation retained the health and safety emphasis, a greater emphasis was placed on job creation and the desire to spread work as the armed forces returned to the civilian labour force. The hours of work provisions in the Employment Standards Act, 2000 allow workplace parties, with some Ministry oversight, to arrange work schedules to suit their needs. The amendments that came into force on March 1, 2005 contain measures that increase employee and employer awareness of their hours of work rights and obligations. Provisions that ensure that employees receive hours free from work in between shifts and on a daily and weekly or bi-weekly basis continue to apply.

Section 17 — Limit on hours of work

Section 17 was amended and sections 17.1, 17.2 and 17.3 were repealed effective April 3, 2019 as a result of the Restoring Ontario’s Competitiveness Act, 2019 (ROCA), which removed the requirement to obtain approval of the Director of Employment Standards to exceed the limit on weekly hours of work.

The discussion of these provisions as they existed prior to April 3, 2019 has been maintained in this publication since employees may still file a complaint relating to a situation that arose prior to the ROCA amendments.  That text appears at the end of this section, in red, to highlight that the discussion reflects the pre-April 3, 2019 language of sections 17, 17.1, 17.2 and 17.3.

Limit on hours of work — s. 17(1)

Section 17(1) sets out the daily and weekly maximum hours that an employer may require or allow an employee to work:

  • Daily maximum: eight hours per day or, if there is an established work day that is longer than eight hours, the number of hours in that work day.
  • Weekly maximum: 48 hours per work week.

This provision allows employees to refuse to work hours in excess of eight per day, or in excess of the number of hours in a longer established regular work day, and 48 hours in a work week.

The limits on hours of work in s. 17(1) are subject to the following exceptions:

  • Section 17(2), which allows employees to agree in writing to work hours in excess of the s. 17(l)(a) daily limit;
  • Section 17(3), which allows employees to agree in writing to work hours in excess of the s. 17(1)(b) weekly limit;
  • Where there are exceptional circumstances as set out in s. 19.

Note also that the limit on daily hours of work contained in s. 17(1)(a) does not apply to certain employees hired before September 4, 2001, who entered into arrangements to work hours in excess of those in their regular work day. See O Reg 285/01, s. 32.1.

Regular work day of more than eight hours

The daily maximum number of hours of work an employer can require or allow an employee to work is eight or, if the employer establishes a regular work day of more than eight hours for the employee, the number of hours in theirregular work day.

While the Employment Standards Act, 2000 does not explicitly set out the maximum number of hours a regular work day can be, the ability to establish a regular work day longer than eight hours remains subject to the weekly hours of work limit in s. 17(1)(b), as well as the requirement for daily rest contained in ESA Part VII, s. 18.

Regular work day is defined in ESA Part I, s. 1(1) to mean with respect to an employee who usually works the same number of hours each day, means a day of that many hours. Because the word usually is used, an employee does not have to work the same number of hours every work day to establish a regular work day. A regular work day can be established so long as an employee ordinarily works a set number of hours.

An employer may establish a schedule where employees work different numbers of hours on different days of the week. For example, employees work 10 hours Mondays to Thursdays and eight hours on Fridays. It is Program policy that the regular work day from Monday to Thursday is 10 hours and eight hours on Friday. Note that the employer will have to pay overtime pay for four hours in this example (assuming the employee has a 44-hour overtime threshold).

Changing what the regular work day is

The Act does not prohibit an employer from adjusting the regular work day on occasion. That is, so far as the Act is concerned, the employer may establish a different regular work day than what it had previously established.

For example, consider an employer that has the following schedule:

  • Monday: 10 hours
  • Tuesday: 10 hours
  • Wednesday: 10 hours
  • Thursday: 8 hours
  • Friday: 8 hours

The employer wishes to establish the following amended schedule:

  • Monday: 11 hours
  • Tuesday: 11 hours
  • Wednesday: 10 hours
  • Thursday: 8 hours
  • Friday: 8 hours

The Act does not prohibit the employer from establishing a new regular work day of 11 hours for Mondays and Tuesdays.

Furthermore, the employer may want to return to the original schedule after, for example, several months. Nothing in the Act prohibits this further change to the schedule.

However, the definition of regular work day contemplates that the employee usually works a specific number of hours on a particular day. The more frequently the employer changes the schedule in relation to a particular day of the week, the less likely it is that the employee could be said to have a usual number of hours on a particular day of the week. In other words, the facts may reveal that there is no regular work day, in which case the daily limit in s. 17(1)(a) for that employee will be eight – subject to the exceptions to this limit set out in s. 17(2) and s. 19.

Note also that while the Act does not prohibit the employer from changing the regular work day, there may be restrictions against doing so in an employee’s employment contract. In this case, it may amount to a breach of the employment contract for the employer to change the regular work day, which may give rise to a constructive dismissal under the Act or at common law.

Work week

ESA Part I, s. 1 defines work week as:

In ascertaining the recurring period of seven consecutive days established by the employer for the purpose of scheduling work, if any, an employment standards officer may consider such information as work schedules, time cards and pay periods, although these are not necessarily the same as the work week. In the absence of the employer having established a recurring period of seven consecutive days for the purpose of scheduling work, a default work week of Sunday to Saturday will apply.

Determining the number of hours worked by an employee - O Reg 285/01, s. 1.1

O Reg 285/01, s. 1.1 sets out the circumstances in which work is deemed to be performed or not deemed to be performed. This provision is essential in determining the number of hours of work under this Part. Note that  O Reg 285/01, s. 22 sets out special rules regarding when work is not deemed to be performed for residential care workers.

O Reg 285/01, s. 1.1 provides as follows:

See the detailed discussion of these provisions in O. Reg. 285/01, s. 1.1.

Exception: Hours in a day - s. 17(2)

Section 17(2) permits employers and employees to agree, in writing that the employee will work up to a specified number of hours in excess of the daily limit set out in s. 17(1)(a) – see ESA Part 1, s. 1(3) and s. 1(3.1) for a discussion of agreements in writing

Section 17(2) must be read in conjunction with s. 17(5), which provides that s. 17(2) agreements are not valid unless:

  • The employer, before the agreement is made, gives the employee a copy of a document prepared by the Director of Employment Standards that describes the rights of employees and obligations of employers under the hours of work and overtime pay provisions. The document must be the most recent version published by the Director;

    and

  • The agreement contains a statement by the employee acknowledging receipt of the document. The statement must indicate that the employer represented that the document is the most recent version published by the Director.

In addition, the agreement must clearly set out what is being agreed upon.  It must be written with sufficient clarity for the parties to know precisely what they are agreeing to. If one of the parties drafted the agreement, and a particular term is ambiguous and the parties disagree about what the term means, the term will be construed against the parties who drafted the agreement - this is called the contra proferentem rule. The parties must have entered into the agreement voluntarily.  Please see ESA Part I, s. 1(3) for a more detailed discussion of the issue of voluntary consent.

Agreements to work excess daily hours can specify the exact number of hours that the employee is agreeing to work, the exact number of hours over and above the daily limit, or they can specify an upper limit (e.g., up to 10 hours a day).

This section contemplates both one-off agreements, where the employee agrees in writing to work excess daily hours on a single occasion, and more open-ended as required agreements, where the employee agrees in writing to work a specified number of excess daily hours whenever required by the employer. For example, a retail employer preparing for the busy Christmas season may ask an employee to agree to with two days' notice, work up to 12 hours a day during the months of November and December of this year.

Agreements under s. 17(2) to work excess daily hours and agreements under s. 17(3) to work excess weekly hours are two separate agreements, although they can be embodied in the same document.

Note that there may be some circumstances in which what appears to be a single agreement with respect to excess daily hours by necessary implication includes an agreement with respect to excess weekly hours, and vice versa. For example, an employee regularly works nine hours a day, five days a week. On the fifth day of the week, the employee agrees in writing to exceed the daily limit and work four additional hours. By necessary implication, the employee has also agreed to work in excess of 48 hours in that work week, and the employee will be permitted to work those excess hours. Or the same employee, who regularly works nine hours a day, whose employer operates only five days a week, enters into an agreement to work up to 60 hours per work week when required – in these circumstances, the employee, by necessary implication, has also agreed to work excess daily hours.

In attempting to facilitate opportunities to work excess hours, employers have inquired as to whether a signature on a sign-up sheet for additional hours might be considered a valid written agreement under s. 17(2). The Program’s view is that such a document would be valid if all of the following conditions are met:

  • The employee has been given the most recent information document prepared by the Director of Employment Standards;
  • The sign-up sheet clearly states that the employee has been given what they are told is the most recent such document;
  • The sign-up sheet clearly states that the employee is agreeing to work a specified number or up to a specified number of excess hours;
  • The employee initials or signs the sheet; and
  • The employee in so initialing or signing understands that they were signifying their assent to the statements on the sign-up sheet.

The requirement regarding the Director’s information document in s. 17(5) does not apply to employees who are represented by a trade union — see s. 17(9)(b). Furthermore, different rules regarding the Director’s information document apply to employers who entered into agreements with employees to work excess daily hours under the provisions of the ESA 2000 before March 1, 2005, the date on which the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, SO 2004, c 21came into force. In particular, because the agreements were entered into under a scheme when the requirement of s. 17(5) was not in force, the conditions for a valid agreement in s. 17(5) do not apply to such employers. See ss. 17(9). Pursuant to a now-repealed provision – ss. 17(10) – the employer was required to provide the information document to employees by June 1, 2005.  

In the absence of a valid written agreement, the daily limit on hours of work in s. 17(1)(a) applies, and the employer may not require or even permit an employee to work excess daily hours, unless exceptional circumstances within the meaning of ESA Part VII, s. 19 are present.

Agreements to work excess daily hours can generally be revoked by employees with two weeks' written notice and generally with reasonable notice by employers — see ss. 17(6) and (7), respectively. It is, however, the Program’s position that in situations where an agreement to work excess hours is made pursuant to a collective agreement, the ability to revoke the agreement to work excess hours must be made in accordance with the terms of the collective agreement and the Labour Relations Act, 1995, SO 1995, c 1, Sch A,where applicable. Generally, this means that unilateral revocation is not possible during the operation of the collective agreement.

Employers are required to retain a copy of every excess daily (and weekly) hours agreement it has made with its employees for three years after the last day on which work was performed under each agreement — see ESA Part VI, s. 15(8).

Exception: Hours in a work week — s. 17(3)

Subsection 17(3) was amended effective April 3, 2019 by the Restoring Ontario’s Competitiveness Act, 2019 (ROCA).  The ROCA removed the previous requirement to obtain approval of the Director of Employment Standards to exceed the limit on weekly hours of work.

Section 17(3) permits employees’ hours of work to exceed the weekly limit of 48 hours in a work week if the employee enters into an agreement with the employer providing that he or she will work up to a specified number of hours in a work week, and the employees’ hours of work do not exceed the number of hours specified in the agreement.  The agreement must be in writing to be valid — see ESA Part I, s. 1(3) and (3.1) for a discussion of agreements in writing.

In a non-unionized workplace, each employee has the right on an individual basis to enter into agreements to work excess weekly hours. For employees represented by a trade union, the written agreement may be embodied in the collective agreement, a memorandum of agreement or an addendum to an agreement. All bargaining unit members are bound by such an agreement. In this regard, see the discussion of ESA Part III, s. 7.

This section must be read in conjunction with s. 17(5), which provides that s. 17(3) agreements are not valid unless:

  • The employer, before the agreement is made, gives the employee a copy of a document prepared by the Director of Employment Standards that describes the rights of employees and obligations of employers under the hours of work and overtime pay provisions. The document must be the most recent version published by the Director.

    and

  • The agreement contains a statement by the employee acknowledging that theyreceived the document. The statement must indicate that the employer represented that the document is the most recent version published by the Director.

In addition, the agreement must clearly set out what is being agreed upon.  It must be written with sufficient clarity for the parties to know precisely what they are agreeing to. The parties must have entered into the agreement voluntarily.  Please see ESA Part I, s. 1(3) for a more detailed discussion of the issue of voluntary consent.

Agreements to work excess weekly hours can specify the exact number of hours that the employee is agreeing to work, the exact number of hours over and above the weekly limit, or they can specify an upper limit (e.g., up to 60 hours a week).

This section contemplates both one-off agreements, where the employee agrees in writing to work excess weekly hours on a single occasion, and more open-ended as required agreements, where the employee agrees in writing to work a specified number of excess weekly hours whenever required by the employer. For example, a retail employer preparing for the busy Christmas season may ask an employee to agree to with two days' notice, work up to 60 hours a week during the months of November and December of this year.

Agreements under s. 17(2) to work excess daily hours and agreements under s. 17(3) to work excess weekly hours are two separate agreements, although they can be embodied in the same document.

Note that there may be some circumstances in which what appears to be a single agreement with respect to excess daily hours by necessary implication includes an agreement with respect to excess weekly hours, and vice versa. For example, an employee regularly works nine hours a day, five days a week. On the fifth day of the week, the employee agrees in writing to exceed the daily limit and work four additional hours. By necessary implication, the employee has also agreed to work in excess of 48 hours in that work week, and the employee will be permitted to work those excess hours. Or if the same employee, who regularly works nine hours a day and whose employer operates only five days a week, enters into an agreement to work up to 60 hours per work week when required, that employee by necessary implication, has also agreed to work excess daily hours.

In attempting to facilitate opportunities to work excess hours, employers have inquired as to whether a signature on a sign-up sheet for additional hours might be considered a valid written agreement under s. 17(3). The Program’s view is that such a document would be valid if all of the following conditions are met:

  • The employee has been given the most recent information document prepared by the Director of Employment Standards;
  • The sign-up sheet clearly states that the employee has been given what they are told is the most recent such document;
  • The sign-up sheet clearly states that the employee is agreeing to work a specified number or up to a specified number of excess hours;
  • The employee initials or signs the sheet; and
  • The employee in so initialling or signing understands that they were signifying their assent to the statements on the sign-up sheet.

The requirement regarding the Director’s information document in s. 17(5) does not apply to employees who are represented by a trade union — see s. 17(9)(b). Furthermore, different rules regarding the Director’s information document apply to employers who entered into agreements with employees to work excess weekly hours before March 1, 2005, the date the amendments to the ESA 2000 requiring that the Director’s information document be given to employees came into force — see s. 17(9).

In the absence of a valid written agreement, the weekly limit on hours of work in s. 17(1)(b) applies, and the employer may not require or even permit an employee to work excess weekly hours unless exceptional circumstances within the meaning of s. 19 are present.

Agreements to work excess weekly hours can generally be revoked by employees with two weeks' written notice — see s. 17(6). Agreements to work excess weekly hours can generally be revoked by employers with reasonable notice — see s. 17(7).

The general right to revoke agreements is limited where the agreement is made between a union and the employer. It is the Program’s position that in situations where an agreement to work excess hours is made pursuant to a collective agreement, the ability to revoke the agreement to work excess hours must be made in accordance with the terms of the collective agreement and the Labour Relations Act, 1995 where applicable. Generally, this means that unilateral revocation is not possible during the operation of the collective agreement.

Employers are required to retain a copy of every excess weekly and daily hours agreement it has made with its employees for three years after the last day on which work was performed under each agreement — see ESA Part VI, s. 15(8).

Transition — Restoring Ontario’s Competitiveness Act, 2019 — Impact on pre-existing Director approvals

Effective April 3, 2019, the excess weekly hours scheme was changed as a result of the Restoring Ontario’s Competitiveness Act, 2019 (ROCA).  Prior to the ROCA amendments, the weekly maximum of 48 hours could be exceeded only if there was a written agreement between the employee and employer and the employer had received the approval of the Director of Employment Standards (or, pursuant to a limited exception, in situations where Director approval was pending and certain conditions were met).

As of April 3, 2019, the Director’s approval is no longer necessary; excess weekly hours can be worked if the employee and employer entered into a valid written agreement to exceed the limit on weekly hours of work and meet the other required conditions.

One question that might arise is what effect the ROCA amendments had on Director’s approvals that were issued pre-ROCA with a post-ROCA expiry date that were in force on April 3, 2019.  As of April 3, 2019, the Director’s approval ceased to have any effect and the valid written agreement between the employer and the employee became determinative of the arrangement. 

There may be circumstances where the terms of the agreement between the employee and the employer differ from those that were contained in the Director approval.  For example, take the situation of an employee and employer who entered into a written agreement stating that the employee would work up to 65 hours per week but, the Director of Employment Standards provided an approval only for up to 60 hours per week.  Prior to April 3, 2019, the employee would have been permitted to work no more than 60 hours per week.  On April 3, 2019,  the day the ROCA received Royal Assent, the Director’s approval ceased to have any effect and the agreement between the parties is what determines the arrangement.  As such, the employee in this example would be permitted to work up to 65 hours per week as of April 3, 2019.  (Note, of course, that there must continue to be compliance with all hours of work requirements, including those for daily and weekly rest contained in Part VII of the Act.)

Note also that employees may revoke a written agreement to work excess weekly (or daily) hours by providing two weeks’ written notice to the employer.  The employer may revoke such agreements by giving reasonable notice to the employee.  See ss. 17(6) and (7) for more information.

s. 17(4) — REPEALED

Document re employee rights — s. 17(5)

Section 17(5) provides that an employee’s agreement to work excess daily hours or excess weekly hours is not valid unless two conditions are met. These are intended to ensure and provide assurance to the Ministry that employees know their rights before signing agreements to work excess hours. Note that the conditions are in addition to the general requirements regarding agreements, i.e., that they be in writing, pursuant to ESA Part 1, s. 1(3) and s. 1(3.1) , and that they meet the requirements regarding issues such as voluntariness and specificity.

The two conditions are that an employee’s agreement to work excess daily hours pursuant to s. 17(2) or excess weekly hours pursuant to s. 17(3) is not valid unless:

  • The employer, before the agreement is made, gives the employee a copy of the most recent document prepared by the Director of Employment Standards that describes the rights of employees and obligations of employers under the hours of work and overtime provisions. The copy provided to the employee may be either a paper copy or an electronic copy. See ESA Part VII, s. 21.1 for information regarding this information document. This condition will not be met if the employer gives the information document to the employee after the agreement is signed.

    and

  • The agreement contains a statement by the employee acknowledging receipt of the document. The statement must indicate that the employer represented that the document is the most recent version published by the Director.

These two conditions do not apply to employees who are represented by a trade union — see s. 17(9)(b) below.

Different rules regarding the Director’s information document apply to employers who entered into agreements with employees to work excess weekly hours under the ESA 2000 as it stood before the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 came into force on March 1, 2005. Because these agreements were entered into before s. 17(5) was in force, the conditions in s. 17(5) do not apply to such employers. See ss. 17(9).  However, employers who had such agreements were required by now-repealed ss. 17(10) to provide the information document to employees by June 1, 2005.

If either of the conditions in s. 17(5) are not met, the agreement to work excess daily or weekly hours is not valid. And because a valid written agreement is required in order for an employer to require or even permit an employee to work excess hours, if either condition is not met, the employer will be in violation of the Act if any excess hours are worked (unless, of course, exceptional circumstances within the meaning of s. 19 are present).

Agreements under s. 17(2) to work excess daily hours and agreements under s. 17(3) to work excess weekly hours are two separate agreements, although they can be contained within the same document. If they are in the same document and the conditions in s. 17(5) are not met, both agreements are invalid, and the employee cannot be required or permitted to work either excess daily hours or excess weekly hours. If the agreements are separate, both agreements must contain the statement described in s. 17(5)(b). If, for example, only the excess daily hours agreement contains the statement, then the excess weekly hours agreement will not be valid.

The Director’s information document needs to be provided only once, even if the excess daily hours agreement and the excess weekly hours agreement are made at different times, provided that the Director did not publish a revised information document after the earlier agreement was made but before the later agreement was made.

Example:

An employer gives the most recent Director’s information document to an employee on May 1, 2017, and the employee provides a written agreement to work excess daily hours on May 2, 2017. The agreement states that the employee was told by the employer that the information document  she was provided with is the most recent one published. One month later, the employer asks the employee if she would be willing to work excess weekly hours and she indicates that she would. No revised information document has been published, and the employer tells the employee that the document provided to her on May 1, 2017 is still the most recent document published by the Director. The employee then provides a written agreement to work excess weekly hours; it states that the employee has been given an information document that the employer told her was the most recent one published. Since there was no new information document published between May 1, 2017 and the making of the excess weekly hours agreement one month later, and the agreement contains an acknowledgement that the employee has received what the employer has represented is the most recent document, the condition in s. 17(5)(b) is met.

As mentioned above, the two conditions contained in s. 17(5) are in addition to the other requirements regarding agreements. One of these requirements is there must be informed consent by the employee. There may be circumstances where, despite the conditions in s. 17(5) being met, there is not informed consent. For example, if the employee cannot read or understand the information document, was not given an explanation, and was not otherwise aware of his or her rights, then even though the conditions of s. 17(5) have been met, the agreement will not be valid because the element of informed consent is absent. Accordingly, the employee will not be permitted to work the excess hours.

Revocation by employee — s. 17(6)

This section requires that an employee provide an employer with at least two weeks' written notice before withdrawing from an agreement made under s. 17(2) to work excess daily hours or from an agreement made under s. 17(3) to work excess weekly hours. Note that special rules on revocability apply to agreements to work excess daily hours under O Reg 285/01, s. 32 and arrangements regarding daily hours under O Reg 285/01, s. 32.1.

The employee must give the notice in writing; verbal notice will not meet the requirement of this section. Note that where the agreement has been made by the union on behalf of the employee, that the employee has no individual right to revoke the agreement. See the discussion at section 7.

Further, it is the Program’s position that in situations where an agreement to work excess hours is made pursuant to a collective agreement, the ability to revoke the agreement to work excess hours must be made in accordance with the terms of the collective agreement and the Labour Relations Act, 1995 where applicable. Generally, this means that unilateral revocation is not possible during the operation of the collective agreement.

Where employees are able to revoke an agreement and provide the employer with the proper notice, the hours of work limits in s. 17(1) will again apply once the two-week notice period to revoke the agreement to work excess hours has expired, and the employer will no longer be able to require or permit an employee to work beyond those limits, subject to exceptional circumstances as set out in ESA Part VII, s. 19.

Section 32 of O Reg 285/01, s. 32 provides:

ESA Part XXVII, ss. 141(9) and (10) provide:

Together these sections provide that despite s. 17(6), employees who were hired on or after September 4, 2001, and who agreed in writing at the time of hiring to work hours in excess of the daily maximum cannot unilaterally withdraw from the agreement, even with two weeks' notice, if the Director of Employment Standards approved the agreement. The agreement can be revoked only if the employer and employee both agree, in writing, to revoke it.

Note that this exception to the revocability of agreements applies only to agreements to work excess daily hours. These employees retain the right under s. 17(6) to revoke, with two weeks' written notice, agreements to work excess weekly hours.

Note also that employees who are party to these approved agreements to work excess daily hours cannot be required to work more than 10 hours a day except in exceptional circumstances as set out in ESA Part VII, s. 19 — see ESA Part XXVII s. 141(9).

Revocation by employer — s. 17(7)

This section requires an employer to provide an employee with reasonable notice if it wishes to withdraw from an agreement regarding excess daily hours made under s. 17(2) or from an agreement regarding excess weekly hours made under s.17(3). Note that agreements under O Reg 285/01, s. 32 and arrangements under O Reg 285/01, s. 32.1 can be revoked only if both the employer and employee wish to revoke them.

The notice is not required to be in writing. Unlike the notice requirement in s. 17(6), verbal notice will suffice, although employers may wish to put the notice in writing in order to avoid misunderstandings.

Whether the notice provided by an employer is reasonable will depend upon the circumstances of each case. The Program does not view reasonable notice in the context of revoking an excess hours agreement under the ESA 2000 to be the same as reasonable notice as that term is used in the context of notice of termination under the common law, and, as such, the principles applied at common law are not necessarily applicable here.

Factors for consideration when determining whether the length of notice is reasonable may include:

  • How long the agreement has been in effect;
  • How much in advance of the agreed upon expiry date (if any) the revocation will take effect; and
  • The reason for the revocation: did the employer lose a contract for work, suffer equipment breakdowns or a shortage of materials needed to perform the work? Was the agreement withdrawn in favour of a different agreement?

It is the Program’s position that in situations where an agreement to work excess hours is made pursuant to a collective agreement, the ability to revoke the agreement to work excess hours must be made in accordance with the terms of the collective agreement and the Labour Relations Act, 1995 where applicable. Generally, this means that unilateral revocation is not possible during the operation of the collective agreement.

Once an excess hours agreement is revoked, the hours of work limits in s. 17(1) will once again apply, and the employer will no longer be able to require or permit an employee to work beyond those limits, subject to exceptional circumstances as set out in ESA Part VII, s. 19.

It is the Program’s view that an agreement to work excess hours under s. 17(2) or s. 17(3) does not require an employer to provide employees with excess hours; it only allows for excess hours be worked, permitting an employer to require an employee to work any excess hours the employer chooses to provide. An agreement under s. 17(2) or s. 17(3) is in no way a guarantee of wages and there is no basis for a claim by an employee of a violation of the Act (e.g., insufficient notice of a constructive dismissal) if excess hours are not provided.

Transition: Certain agreements — s. 17(8)

Section 17(8) is a transitional provision relating to amendments that were made to the hours of work provisions effective March 1, 2005.

This provision establishes how agreements to work excess hours that were entered into under the provisions of the ESA 2000 before the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 came into force on March 1, 2005 are to be treated.

On February 28, 2005, the relevant provisions read as follows:

Section 17 of the ESA 2000:

Section 31 of O Reg 285/01:

Accordingly:

  • Valid agreements to work in excess of the daily hours limit made under the pre-March 1, 2005 hours of work rules that have not expired or been revoked continue to be valid agreements to work hours in excess of the daily limit.
  • Valid agreements to work in excess of the weekly hours limit, to a maximum of 60 hours in a week, made under the pre-March 1, 2005 hours of work rules that have not expired or been revoked continue to be valid agreements to work hours in excess of the weekly limit.
  • Valid agreements to work in excess of 60 hours in a week made under the pre-March 1, 2005 hours of work rules that have not expired or been revoked continue to be valid agreements to work hours in excess of the weekly limit.

While the agreements that were entered into under the authority of s. 17(2) and O Reg 285/01, s. 31 as they read on February 28, 2005 (old agreements) are treated as if they are agreements made under the current s. 17 (new agreements), thereby negating the need for employers to enter into another agreement with employees when the amendments to the Act came into force, the rules regarding the Director's information document are different. See the discussion of ss. 17(9) below, and note that now-repealed ss. 17(10) required employers who were party to such an agreement to provide the information document to employees by June 1, 2005. Otherwise, agreements entered into pre- or post- March 1, 2005 were treated the same. Prior to the Restoring Ontario’s Competitiveness Act, 2019 (ROCA) amendments, all employers who had agreements with employees (regardless of the date the agreement was entered into) had to seek approval from the Director before the employee could work more than 48 hours per work week.

For information on transitions with regards to excess weekly hour agreements and Director approvals in place on April 3, 2019 when the ROCA amendments to the ESA came into force, please see the discussion at s. 17(3)

Document re employee rights – Exceptions — s. 17(9)

This section sets out two exceptions to the application of s. 17(5). Section 17(5)  provides that agreements to work excess daily or weekly hours are not valid unless:

  • The employer, before the agreement is made, gives the employee a copy of a document prepared by the Director of Employment Standards that describes the rights of employees and obligations of employers under the hours of work and overtime pay provisions. The document given to the employee must be the most recent version of the document.

    and

  • The agreement contains a statement by the employee acknowledging receipt of the document.  The statement must indicate that the employer represented that the document is the most recent version published by the Director.

See above for a discussion of s. 17(5).

Section 17(9) provides that the s. 17(5) requirement does not apply to:

An agreement described in s. 17(8)

The agreements described in s. 17(8) are those agreements that were entered into under the provisions of the Act before the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 came into force on March 1, 2005. Because the agreements were entered into at a time when the requirement of s. 17(5) was not in force, the conditions for a valid agreement in s. 17(5) do not apply.

Note however that now-repealed s. 17(10) required employers who were party to an agreement described in s. 17(8) to provide the information document to employees by June 1, 2005.

Excess daily or weekly hours agreements that are entered into by employees who are represented by a union

The two conditions for a valid agreement that are set out in s. 17(5) do not apply to agreements made in respect of employees who are represented by a trade union.

s. 17(10) — REPEALED

s. 17(11) — REPEALED

Section 17 — Limit on hours of work — pre-April 3, 2019

The Restoring Ontario’s Competitiveness Act, 2019 (ROCA) amended the excess weekly hours scheme effective April 3, 2019 by removing the requirement for the Director’s approval of agreements to exceed the limit on weekly hours of work.  The provisions that are currently in force are discussed in the section above.  The text below, which appears in red, is the legislative text and the associated operational policy as it applied prior to April 3, 2019.  This discussion is being maintained in this publication since employees may still file a complaint relating to a situation that arose when the below provisions were in force.  The text appears in red to highlight that the below sets out the pre-April 3, 2019 language of sections 17, 17.1, 17.2 and 17.3 and is not current as of April 3, 2019.

Limit on hours of work — s. 17(1)

Section 17(1) sets out the daily and weekly maximum hours that an employer may require or allow an employee to work:

  • Daily maximum: eight hours per day or, if there is an established work day that is longer than eight hours, the number of hours in that work day.
  • Weekly maximum: 48 hours per work week.

This provision allows employees to refuse to work hours in excess of eight per day, or in excess of the number of hours in a longer established regular work day, and 48 hours in a work week.

The limits on hours of work in s. 17(1) are subject to the following exceptions:

  • Section 17(2), which allows employees to agree in writing to work hours in excess of the s. 17(l)(a) daily limit;
  • Section 17(3), which allows employees to work hours in excess of the s. 17(1)(b) weekly limit if they agree to do so in writing and the employer has received an approval from the Director of Employment Standards;
  • Section 17(4), which allows employees to work hours in excess of the s. 17(1) weekly limit - but only up to the lesser of 60 hours, the number of hours specified in the agreement, or the number of hours specified in the application pending the disposition of the application for approval, if certain conditions are met;
  • Where there are exceptional circumstances as set out in s. 19.

Note also that the limit on daily hours of work contained in s. 17(1)(a) does not apply to certain employees hired before September 4, 2001, who entered into arrangements to work hours in excess of those in their regular work day. See O Reg 285/01, s. 32.1 for a discussion of the details of this exemption.

Regular work day of more than eight hours

The daily maximum number of hours of work an employer can require or allow an employee to work is eight or, if the employer establishes a regular work day of more than eight hours for the employee, the number of hours in theirregular work day.

Employers can establish a regular work day in excess of eight hours without the approval of the Director of Employment Standards. While the Employment Standards Act, 2000 does not explicitly set out the maximum number of hours a regular work day can be, the ability to establish a regular work day longer than eight hours remains subject to the weekly hours of work limit in s. 17(1)(b), as well as the requirement for daily rest contained in ESA Part VII, s. 18.

Regular work day is defined in ESA Part I, s. 1(1) to mean with respect to an employee who usually works the same number of hours each day, means a day of that many hours. Because the word usually is used, an employee does not have to work the same number of hours every work day to establish a regular work day. A regular work day can be established so long as an employee ordinarily works a set number of hours.

An employer may establish a schedule where employees work different numbers of hours on different days of the week. For example, employees work 10 hours Mondays to Thursdays and eight hours on Fridays. It is Program policy that the regular work day from Monday to Thursday is 10 hours and eight hours on Friday. Note that the employer will have to pay overtime pay for four hours in this example.

Changing what the regular work day is

The Act does not prohibit an employer from adjusting the regular work day on occasion. That is, so far as the Act is concerned, the employer may establish a different regular work day than what it had previously established.

For example, consider an employer that has the following schedule:

  • Monday: 10 hours
  • Tuesday: 10 hours
  • Wednesday: 10 hours
  • Thursday: 8 hours
  • Friday: 8 hours

The employer wishes to establish the following amended schedule:

  • Monday: 11 hours
  • Tuesday: 11 hours
  • Wednesday: 10 hours
  • Thursday: 8 hours
  • Friday: 8 hours

The Act does not prohibit the employer from establishing a new regular work day of 11 hours for Mondays and Tuesdays.

Furthermore, the employer may want to return to the original schedule after, for example, several months. Nothing in the Act prohibits this further change to the schedule.

However, the definition of regular work day contemplates that the employee usually works a specific number of hours on a particular day. The more frequently the employer changes the schedule in relation to a particular day of the week, the less likely it is that the employee could be said to have a usual number of hours on a particular day of the week. In other words, the facts may reveal that there is no regular work day, in which case the daily limit in s. 17(1)(a) for that employee will be eight – subject to the exceptions to this limit set out in s. 17(2) and s. 19.

Note also that while the Act does not prohibit the employer from changing the regular work day, there may be restrictions against doing so in an employee’s employment contract. In this case, it may amount to a breach of the employment contract for the employer to change the regular work day, which may give rise to a constructive dismissal under the Act or at common law.

Pre-Employment Standards Act, 2000 schedules

Employers who had established a regular work day that is longer than eight hours prior to proclamation of the ESA 2000, and that was in effect upon proclamation of the ESA 2000, are considered by the Program to have established a regular work day of more than eight hours for the purposes of s. 17(1)(a). Employers who wish to establish a regular work day of more than eight hours after proclamation of theESA 2000, as noted above, are not prohibited by the Act from doing so, although they may be constrained from doing so by considerations such as constructive dismissal, collective agreements, etc.

Work week

ESA Part I, s. 1 defines ork week as:

In ascertaining the recurring period of seven consecutive days established by the employer for the purpose of scheduling work, if any, an employment standards officer may consider such information as work schedules, time cards and pay periods, although these are not necessarily the same as the work week. In the absence of the employer having established a recurring period of seven consecutive days for the purpose of scheduling work, a default work week of Sunday to Saturday will apply.

Determining the number of hours worked by an employee - O Reg 285/01, s. 6

O Reg 285/01, s. 6 sets out the circumstances in which work is deemed to be performed or not deemed to be performed. This provision is essential in determining the number of hours of work under this Part. Note that  O Reg 285/01, s. 22 sets out special rules regarding when work is not deemed to be performed for residential care workers.

O Reg 285/01, s. 6 provides as follows:

Exception: Hours in a day - s. 17(2)

Section 17(2) permits employers and employees to agree, in writing that the employee will work up to a specified number of hours in excess of the daily limit set out in s. 17(1)(a) – see ESA Part 1, s. 1(3) and s. 1(3.1) for a discussion of agreements in writing

Section 17(2) must be read in conjunction with s. 17(5), which provides that s. 17(2) agreements are not valid unless:

  • The employer, before the agreement is made, gives the employee a copy of a document prepared by the Director of Employment Standards that describes the rights of employees and obligations of employers under the hours of work and overtime pay provisions. The document must be the most recent version published by the Director;

    and

  • The agreement contains a statement by the employee acknowledging that they received the document. The statement must indicate that the employer represented that the document is the most recent version published by the Director.

In attempting to facilitate opportunities to work excess hours, employers have inquired as to whether a signature on a sign-up sheet for additional hours might be considered a valid written agreement under s. 17(2). The Program’s view is that such a document would be valid if all of the following conditions are met:

  • The employee has been given the most recent information document prepared by the Director of Employment Standards;
  • The sign-up sheet clearly states that the employee has been given what they are told is the most recent such document;
  • The sign-up sheet clearly states that the employee is agreeing to work a specified number or up to a specified number of excess hours;
  • The employee initials or signs the sheet; and
  • The employee in so initialling or signing understands that they were signifying their assent to the statements on the sign-up sheet.

The requirement regarding the Director’s information document in s. 17(5) does not apply to employees who are represented by a trade union - see s. 17(9)(b). Furthermore, different rules regarding the Director’s information document apply to employers who entered into agreements with employees to work excess daily hours under the provisions of the ESA 2000 before March 1, 2005, the date on which the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, SO 2004, c 21came into force. In particular, because the agreements were entered into under a scheme when the requirement of s. 17(5) was not in force, the conditions for a valid agreement in s. 17(5) do not apply to such employers. Instead, they are required to provide the information document to employees by June 1, 2005. See ss. 17(9) and (10).

In the absence of a valid written agreement, the daily limit on hours of work in s. 17(1)(a) applies, and the employer may not require or even permit an employee to work excess daily hours, unless exceptional circumstances within the meaning of ESA Part VII, s. 19 are present.

Agreements to work excess daily hours can generally be revoked by employees with two weeks' written notice and generally with reasonable notice by employers - see ss. 17(6) and (7), respectively. It is, however, the Program’s position that in situations where an agreement to work excess hours is made pursuant to a collective agreement, the ability to revoke the agreement to work excess hours must be made in accordance with the terms of the collective agreement and the Labour Relations Act, 1995, SO 1995, c 1, Sch A,where applicable. Generally, this means that unilateral revocation is not possible during the operation of the collective agreement.

Agreements to work excess daily hours can specify the exact number of hours that the employee is agreeing to work, the exact number of hours over and above the daily limit, or they can specify an upper limit (e.g., up to 10 hours a day).

This section contemplates both one-off agreements, where the employee agrees in writing to work excess daily hours on a single occasion, and more open-ended as required agreements, where the employee agrees in writing to work a specified number of excess daily hours whenever required by the employer. For example, a retail employer preparing for the busy Christmas season may ask an employee to agree to with two days' notice, work up to 12 hours a day during the months of November and December of this year.

Agreements under s. 17(2) to work excess daily hours and agreements under s. 17(3) to work excess weekly hours are two separate agreements, although they can be embodied in the same document.

Note that there may be some circumstances in which what appears to be a single agreement with respect to excess daily hours by necessary implication includes an agreement with respect to excess weekly hours, and vice versa. For example, an employee regularly works nine hours a day, five days a week. On the fifth day of the week, the employee agrees in writing to exceed the daily limit and work four additional hours. By necessary implication, the employee has also agreed to work in excess of 48 hours in that work week, and, assuming that the employer had already received an excess weekly hours approval from the Director of Employment Standards that applies to the employee or that the pending approval rules in s. 17(4) apply to the employee, the employee will be permitted to work those excess hours. Or the same employee, who regularly works nine hours a day, whose employer operates only five days a week, enters into an agreement to work up to 60 hours per work week when required and the employer has an excess weekly hours approval from the Director that applies to the employee, or is operating under the pending approval rules in s. 17(4), the employee, by necessary implication, has also agreed to work excess daily hours.

The Ministry has produced a list of items employers and employees may wish to consider when drafting agreements. These materials can be found Ministry of Labour’s web page Applications for Approval of Excess Hours or for Averaging Hours of Work as well as in the Hours of Work and Overtime Tool on the Ministry of Labour website.

Alsosee section ESA Part I, s. 1(3) and ESA Part 1, s. 1(3.1) for a discussion of agreements in writing.

Employers are required to retain a copy of every excess daily (and weekly) hours agreement it has made with its employees for three years after the last day on which work was performed under each agreement - see ESA Part VI, s. 15(8).

Exception: Hours in a work week - s. 17(3)

Section 17(3) permits employees' hours of work to exceed the weekly limit of 48 hours in a work week if three conditions are met:

  • The employee has made an agreement with the employer that they will work up to a specified number of hours in a work week in excess of the limit;
  • The employer has received an approval from the Director of Employment Standards under s. 17.1 that applies to the employee or to a class of employees that includes the employee; and
  • The employee’s hours of work in a work week do not exceed the lesser of,
    • The number of hours specified in the agreement, and
    • The number of hours specified in the approval.

Each of these conditions is discussed below.

Employee made agreement that they will work up to specified number of hours in excess of limit

Pursuant to s. 17(3)(a), the first condition that must be met before an employee is allowed to work more than 48 hours in a work week is the employee must have entered into an agreement with the employer that they will work the excess hours. The agreement must be in writing to be valid -see ESA Part I, s. 1(3) and (3.1) for a discussion of agreements in writingt, as well as the list of necessary and other elements of agreements at the end of that section. Also see the Ministry of Labour’s web page Applications for Approval of Excess Hours or for Averaging Hours of Work for a list of items employers and employees may wish to consider when drafting agreements, as well as the Hours of Work and Overtime Tool on the Ministry of Labour website.

In a non-unionized workplace, each employee has the right on an individual basis to enter into agreements to work excess weekly hours. For employees represented by a trade union, the written agreement may be embodied in the collective agreement, a memorandum of agreement or an addendum to an agreement. All bargaining unit members are bound by such an agreement. In this regard, see the discussion of ESA Part III, s. 7.

This section must be read in conjunction with s. 17(5), which provides that s. 17(3) agreements are not valid unless:

  • The employer, before the agreement is made, gives the employee a copy of a document prepared by the Director of Employment Standards that describes the rights of employees and obligations of employers under the hours of work and overtime pay provisions. The document must be the most recent version published by the Director.

    and

  • The agreement contains a statement by the employee acknowledging that theyreceived the document. The statement must indicate that the employer represented that the document is the most recent version published by the Director.

In attempting to facilitate opportunities to work excess hours, employers have inquired as to whether a signature on a sign-up sheet for additional hours might be considered a valid written agreement under s. 17(3). The Program’s view is that such a document would be valid if all of the following conditions are met:

  • The employee has been given the most recent information document prepared by the Director of Employment Standards;
  • The sign-up sheet clearly states that the employee has been given what they are told is the most recent such document;
  • The sign-up sheet clearly states that the employee is agreeing to work a specified number or up to a specified number of excess hours;
  • The employee initials or signs the sheet; and
  • The employee in so initialling or signing understands that they were signifying their assent to the statements on the sign-up sheet.

See the discussion of s. 17(5) below for more information.

The requirement regarding the Director’s information document in s. 17(5) does not apply to employees who are represented by a trade union - see s. 17(9)(b). Furthermore, different rules regarding the Director’s information document apply to employers who entered into agreements with employees to work excess weekly hours before March 1, 2005, the date the amendments to the ESA 2000 requiring that the Director’s information document be given to employees came into force - see s. 17(9).

In the absence of a valid written agreement, the weekly limit on hours of work in s. 17(1)(b) applies, and the employer may not require or even permit an employee to work excess weekly hours, even if the Director of Employment Standards has issued an approval that applies to the employee, unless exceptional circumstances within the meaning of s. 19 are present.

Agreements to work excess weekly hours can generally be revoked by employees with two weeks' written notice even if the Director of Employment Standards has issued an approval that applies to the employee - see s. 17(6). Agreements to work excess weekly hours can generally be revoked by employers with reasonable notice - see s. 17(7).

The general right to revoke agreements is limited where the agreement is made between a union and the employer. It is the Program’s position that in situations where an agreement to work excess hours is made pursuant to a collective agreement, the ability to revoke the agreement to work excess hours must be made in accordance with the terms of the collective agreement and the Labour Relations Act, 1995 where applicable. Generally, this means that unilateral revocation is not possible during the operation of the collective agreement.

Further, an individual employee has no right to revoke an agreement made on their behalf by the union, with or without the agreement of the employer - see the discussion in ESA Part III, s. 7.

Agreements to work excess weekly hours can specify the exact number of hours that the employee is agreeing to work, the exact number of hours over and above the weekly limit, or they can specify an upper limit (e.g., up to 60 hours a week).

This section contemplates both one-off agreements, where the employee agrees in writing to work excess weekly hours on a single occasion, and more open-ended as required agreements, where the employee agrees in writing to work a specified number of excess weekly hours whenever required by the employer. For example, a retail employer preparing for the busy Christmas season may ask an employee to agree to with two days' notice, work up to 60 hours a week during the months of November and December of this year.

Agreements under s. 17(2) to work excess daily hours and agreements under s. 17(3) to work excess weekly hours are two separate agreements, although they can be embodied in the same document.

Note that there may be some circumstances in which what appears to be a single agreement with respect to excess daily hours by necessary implication includes an agreement with respect to excess weekly hours, and vice versa. For example, an employee regularly works nine hours a day, five days a week. On the fifth day of the week, the employee agrees in writing to exceed the daily limit and work four additional hours. By necessary implication, the employee has also agreed to work in excess of 48 hours in that work week, and, assuming that the employer had already received an excess weekly hours approval from the Director of Employment Standards that applies to the employee, or that the pending approval rules in s. 17(4) apply to the employee, the employee will be permitted to work those excess hours. Or if the same employee, who regularly works nine hours a day and whose employer operates only five days a week, enters into an agreement to work up to 60 hours per work week when required and the employer has an excess weekly hours approval from the Director that applies to the employee, or is operating under the pending approval rules in s. 17(4), the employee, by necessary implication, has also agreed to work excess daily hours.

Employers are required to retain a copy of every excess weekly and daily hours agreement it has made with its employees for three years after the last day on which work was performed under each agreement - see ESA Part VI, s. 15(8).

Employer received approval that applies to employee or class of employees

Pursuant to s. 17(3)(b), the second condition that must be met before an employee may work more than 48 hours in a work week is the employer must be in receipt of an approval by the Director of Employment Standards under ESA Part VII, s. 17.1 that applies to the employee or to a class of employees that includes the employee.

ESA Part VII, s.n 17.1 describes how employers apply for an excess weekly hours approval.

This section must be read in conjunction with ESA Part VII, s. 17.1(9), which states:

Accordingly, where an employer already has an approval from the Director of Employment Standards, an employee who falls within the class of employees set out in the approval may begin working the excess weekly hours immediately upon entering into the agreement to do so (assuming that all of the requirements for a valid agreement are met) — the employer will not be required to apply for another approval. For example, an employee will be allowed to work excess weekly hours without the employer having to obtain another approval where the employee who provides the valid written agreement:

  • Was not an employee of the employer at the time the approval was issued;
  • Was an employee in the class of employees the approval applies to at the time the approval was issued, but at that time had not agreed to work the excess hours; or
  • Was an employee of the employer at the time the approval was issued but at that time was not working in a position the approval applies to.

This section must also be read in conjunction with s. 17(4), which allows employees to work more than 48 hours in a work week (but only up to the lesser of 60 hours, the number of hours specified in the agreement, or the number of hours specified in the application) if the employer does not receive either an approval or a refusal from the Director within 30 days of the application being served, if certain conditions are met.

Employee’s hours of work do not exceed number of hours in agreement or approval

Pursuant to s. 17(3)(c), the third condition that must be met before an employee is allowed to work more than 48 hours in a work week isthat the employee’s hours of work in excess of 48 will be lawful only if the excess hours do not exceed the number of hours specified in the employee’s agreement or the number of hours specified in the Director’s approval, whichever is less.

For example, an employee agreed to work 70 hours in a work week, but the Director issued an approval for only 60 hours. The employee can work only up to 60 hours in a work week, and the employer will be in violation of the Act if the employee works more than 60 hours.

Conversely, an approval was issued for 65 hours that applies to a particular class of employees. Some employees in that class agreed to work up to 65 hours. Those employees are permitted to work up to 65 hours. One employee in that class agreed to work only up to 55 hours. Pursuant to s. 17(3)(c), that employee is permitted only to work up to 55 hours.

Another example is where an employee agreed to work up to 65 hours in a work week, and the employer has an approval allowing that employee to work up to 65 hours in a work week. The employee changes their mind and provides the employer with two weeks' written notice revoking that agreement, and simultaneously enters into an agreement to work up to only 50 hours in a work week. After the two week notice period expires, that employee is, pursuant to s. 17(3)(c), permitted to work only up to 50 hours in a work week.

Same, pending approval - s. 17(4)

This section provides an exception to the requirement in s. 17(3) that the employer have received an excess weekly hours approval from the Director before an employee is permitted to work excess weekly hours. It permits an employee to work more than 48 hours in a work week ― up to a maximum of the least of 60 hours, the number of hours specified in the agreement, or the number of hours specified in the application ― if the Director has not issued either an approval or a refusal of the application within 30 days of the date the application was served and other conditions are met.

This section permits excess hours to be worked pending the Director issuing an approval or a refusal if certain conditions are met. It does not deem an approval to have been granted. If the application is ultimately refused, the excess hours must cease when the notice of refusal is received. If the application is ultimately approved, s. 17(3), and any conditions contained in the approval, will dictate the conditions under which excess hours can be worked from that point forward.

The employee will be permitted to work more than 48 hours in a work week pending the disposal of the application only if all nine conditions set out in s. 17(4) ― including the condition that the employee works no more than the least of 60 hours, the number of hours specified in the agreement, and the number of hours specified in the application - are met. If any of the nine conditions are not met, the employee will not be permitted to work more than 48 hours in a work week pending the disposition of the application.

Each of the nine conditions is discussed below.

Employee made an agreement with the employer

Pursuant to s. 17(4)(a), the first condition is the employee must have made an agreement described in s. 17(3)(a) with the employer to work excess weekly hours.. In particular, note that for agreements made on or after March 1, 2005, the agreement is not valid unless the employer provided the employee with the information document described in s. 17(5) before the employee entered into the agreement, and the agreement contains a statement by the employee acknowledging that they received the document.

Employer served on the Director an application for approval

Pursuant to s. 17(4)(b), the second condition is the employer must have served the application for an approval of excess weekly hours on the Director of Employment Standards under ESA Part VII, s. 17.1 -see in particular the discussion of the issue of when an application is considered to be served if the approval application is not properly completed.

Application applies to the employee or class of employees

Pursuant to s. 17(4)(c), the third condition is the application for approval to work excess weekly hours that has been served on the Director must apply to the individual employee at issue, or to a class of employees that includes the employee.

Thirty days have passed since application was served

Pursuant to s. 17(4)(d), the fourth condition is at least 30 days must have passed since the employer served the Director with the excess weekly hours approval application. Day means a calendar day.

Note that ESA Part VII, ss. 17.1(4) and (5) contain rules regarding when service is deemed to be effective, and, accordingly, when the 30-day period begins.

Note also that s. 17(11) contains a special rule regarding when the 30-day period expires if the application is filed before March 1, 2005.

Employer has not received notice that application has been refused

Pursuant to s. 17(4)(e), the fifth condition is the employer not have received a notice from the Director that the application to work excess weekly hours has been refused.

Employer’s most recent previous application was not refused

Pursuant to s. 17(4)(f), the sixth condition is the employer’s most recent previous excess weekly hours application must not have been refused. If the employer previously submitted an application that was refused for any reason, and that application was the most recent application, the employer will not be permitted to rely on s. 17(4), and the employees that are the subject of the current application cannot begin to work excess weekly hours unless and until the current application is approved. This is so whether or not the most recent previous application that was refused applied to the same employees who are the subject of the current application.

Employer’s most recent approval was not revoked

Pursuant to s. 17(4)(g), the seventh condition is the most recent approval (if any) that was granted by the Director must not have been revoked. Pursuant to ESA Part VII, s. 17.1(16), the Director can revoke an approval.

Employer posted a copy of the application

Pursuant to s. 17(4)(h), the eighth condition is the employer must post and keep posted a copy of the application for approval of excess weekly hours. It must be posted in at least one conspicuous place in the workplace where each employee who is going to begin working excess weekly hours pending the disposal of the application works.

Note that the application should already be posted, as posting is one requirement of the application process - see ESA Part VII, s. 17.1(6).

Employee’s hours of work do not exceed number of hours in application, agreement or 60 hours

Pursuant to s. 17(4)(j), the ninth condition sets an upper limit on the number of hours per work week an employee can work pending the disposal of the application. It means that the employee cannot work more than the least of any of the following amounts:

  • The number of hours specified for that employee in the application;
  • The number of hours the employee agreed to; or
  • 60 hours.

Because of s. 17(4)(i)(iii), the absolute limit on the number of hours per work week an employee can work pending the disposal of the application is 60, even if the employee agreed to work more than 60 hours and/or the application asks for an approval for the employee to work more than 60 hours. For example, an employee agreed to work up to 65 hours per work week, and the application asks for an approval for the class of employees to which the employee belongs to work 65 hours. While the application is pending (assuming the other conditions are met, including the 30-day wait period), the employee will be permitted to work only up to 60 hours.

Another example of the application of the ninth condition is an employee agreed to work up to 55 hours, and the application asks for an approval for the employee to work 55 hours. While the application is pending (assuming the other conditions are met, including the 30-day wait period), the employee will be permitted to work only up to 55 hours.

Document re employee rights - s. 17(5)

Section 17(5) provides that an employee’s agreement to work excess daily hours or excess weekly hours is not valid unless two conditions are met. These are intended to ensure and provide assurance to the Ministry that employees know their rights before signing agreements to work excess hours. Note that the conditions are in addition to the general requirements regarding agreements, i.e., that they be in writing, pursuant to ESA Part 1, s. 1(3) and s. 1(3.1) , and that they meet the requirements regarding issues such as voluntariness and specificity.

The two conditions are that an employee’s agreement to work excess daily hours pursuant to s. 17(2) or excess weekly hours pursuant to s. 17(3)(a) is not valid unless:

  • The employer, before the agreement is made, gives the employee a copy of the most recent document prepared by the Director of Employment Standards that describes the rights of employees and obligations of employers under the hours of work and overtime provisions. The copy provided to the employee may be either a paper copy or an electronic copy. See ESA Part VII, s. 21.1 for information regarding this information document. This condition will not be met if the employer gives the information document to the employee after the agreement is signed.

    and

  • The agreement contains a statement by the employee acknowledging that they received the document and that the employer represent it as the most recent document the Director published.

These two conditions do not apply to employees who are represented by a trade union - see s. 17(9)(b) below.

Different rules regarding the Director’s information document apply to employers who entered into agreements with employees to work excess weekly hours under the ESA 2000 as it stood before the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 came into force on March 1, 2005. Because these agreements were entered into before s. 17(5) was in force, the conditions in s. 17(5) do not apply to such employers. However, employers who had such agreements were required to provide the information document to employees by June 1, 2005. See the discussions of ss. 17(9) and (10) below.

If either of the conditions in s. 17(5) are not met, the agreement to work excess daily or weekly hours is not valid. And because a valid written agreement is required in order for an employer to require or even permit an employee to work excess hours, if either condition is not met, the employer will be in violation of the Act if any excess hours are worked (unless, of course, "exceptional circumstances" within the meaning of s. 19 are present). This is so even if the Director has issued an approval that applies to the employee in question.

Agreements under s. 17(2) to work excess daily hours and agreements under s. 17(3) to work excess weekly hours are two separate agreements, although they can be contained within the same document. If they are in the same document and the conditions in s. 17(5) are not met, both agreements are invalid, and the employee cannot be required or permitted to work either excess daily hours or excess weekly hours. If the agreements are separate, both agreements must contain the statement described in s. 17(5)(b). If, for example, only the excess daily hours agreement contains the statement, then the excess weekly hours agreement will not be valid.

The Director’s information document needs to be provided only once, even if the excess daily hours agreement and the excess weekly hours agreement are made at different times, provided that the Director did not publish a revised information document after the earlier agreement was made but before the later agreement was made.

Example:

An employer gives the most recent Director’s information document to an employee on May 1, 2005, and the employee provides a written agreement to work excess daily hours on May 2, 2005. The agreement states that the employee was told by the employer that the information document they were provided with is the most recent one published. One month later, the employer asks the employee if they would be willing to work excess weekly hours and they indicate that they would. No revised information document has been published, and the employer tells the employee that the document provided to her on May 1, 2005 is still the most recent document published by the Director. The employee then provides a written agreement to work excess weekly hours; it states that the employee has been given an information document that the employer told her was the most recent one published. Since there was no new information document published between May 2, 2005 and the making of the excess weekly hours agreement and the agreement contains an acknowledgement that the employee has received what the employer has represented is the most recent document, the condition in s. 17(5)(b) is met.

As mentioned above, the two conditions contained in s. 17(5) are in addition to the other requirements regarding agreements. One of these requirements is there must be informed consent by the employee. There may be circumstances where, despite the conditions in s. 17(5) being met, there is not informed consent. For example, if the employee cannot read or understand the information document, was not given an explanation, and was not otherwise aware of what theirrights are, then even though the conditions of s. 17(5) have been met, the agreement will not be valid because the element of informed consent is absent. Accordingly, the employee will not be permitted to work the excess hours.

Revocation by employee - s. 17(6)

This section requires that an employee provide an employer with at least two weeks' written notice before withdrawing from an agreement made under s. 17(2) to work excess daily hours or from an agreement made under s. 17(3)(a) to work excess weekly hours. Note that special rules on revocability apply to agreements to work excess daily hours under O Reg 285/01, s. 32 and arrangements regarding daily hours under O Reg 285/01, s. 32.1.

The employee must give the notice in writing; verbal notice will not meet the requirement of this section. Note that where the agreement has been made by the union on behalf of the employee, that the employee has no individual right to revoke the agreement. See the discussion at 7.

Further, it is the Program’s position that in situations where an agreement to work excess hours is made pursuant to a collective agreement, the ability to revoke the agreement to work excess hours must be made in accordance with the terms of the collective agreement and the Labour Relations Act, 1995 where applicable. Generally, this means that unilateral revocation is not possible during the operation of the collective agreement.

Where employees are able to revoke an agreement and provide the employer with the proper notice, the hours of work limits in s. 17(1) will again apply once the two-week notice period to revoke the agreement to work excess hours has expired, and the employer will no longer be able to require or permit an employee to work beyond those limits, even if the Director has issued an approval to work the excess hours,subject to exceptional circumstances as set out in ESA Part VII, s. 19.

Section 32 of O Reg 285/01, s. 32 provides:

ESA Part XXVII, ss. 141(9) and (10) provide:

Together these sections provide that despite s. 17(6), employees who were hired on or after September 4, 2001, and who agreed in writing at the time of hiring to work hours in excess of the daily maximum cannot unilaterally withdraw from the agreement, even with two weeks' notice, if the Director of Employment Standards approved the agreement. The agreement can be revoked only if the employer and employee both agree, in writing, to revoke it.

Note that this exception to the revocability of agreements applies only to agreements to work excess daily hours. These employees retain the right under s. 17(6) to revoke, with two weeks' written notice, agreements to work excess weekly hours.

Note also that employees who are party to these approved agreements to work excess daily hours cannot be required to work more than 10 hours a day except in exceptional circumstances as set out in ESA Part VII, s. 19 - see ESA Part XXVII s. 141(9).

Revocation by employer - s. 17(7)

This section requires an employer to provide an employee with reasonable notice if it wishes to withdraw from an agreement regarding excess daily hours made under s. 17(2) or from an agreement regarding excess weekly hours made under s.17(3)(a). Note that agreements under O Reg 285/01, s. 32 and arrangements under O Reg 285/01, s. 32.1 can be revoked only if both the employer and employee wish to revoke them.

The notice is not required to be in writing. Unlike the notice requirement in s. 17(6), verbal notice will suffice, although employers may wish to put the notice in writing in order to avoid misunderstandings.

Whether the notice provided by an employer is reasonable will depend upon the circumstances of each case. The Program does not view reasonable notice in the context of revoking an excess hours agreement under the ESA 2000 to be the same as reasonable notice as that term is used in the context of notice of termination under the common law, and, as such, the principles applied at common law are not necessarily applicable here.

Factors for consideration when determining whether the length of notice is reasonable may include:

  • How long the agreement has been in effect;
  • How much in advance of the agreed upon expiry date (if any) the revocation will take effect; and
  • The reason for the revocation: did the employer lose a contract for work, suffer equipment breakdowns or a shortage of materials needed to perform the work? Was the agreement withdrawn in favour of a different agreement?

It is the Program’s position that in situations where an agreement to work excess hours is made pursuant to a collective agreement, the ability to revoke the agreement to work excess hours must be made in accordance with the terms of the collective agreement and the Labour Relations Act, 1995 where applicable. Generally, this means that unilateral revocation is not possible during the operation of the collective agreement.

Once an excess hours agreement is revoked, the hours of work limits in s. 17(1) will once again apply, and the employer will no longer be able to require or permit an employee to work beyond those limits ,subject to exceptional circumstances as set out in ESA Part VII, s. 19.

It is the Program’s view that an agreement to work excess hours under s. 17(2) or s. 17(3)(a) does not require an employer to provide employees with excess hours; it only allows for excess hours be worked, permitting an employer to require an employee to work any excess hours the employer chooses to provide, assuming, of course, in the case of excess weekly hours that an approval has been granted. An agreement under s. 17(2) or s. 17(3)(a) is in no way a guarantee of wages and there is no basis for a claim by an employee of a violation of the Act (e.g., insufficient notice of a constructive dismissal) if excess hours are not provided.

Transition: Certain agreements - s. 17(8)

Section 17(8) is a transitional provision. It establishes how agreements to work excess hours that were entered into under the provisions of the ESA 2000 before the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 came into force are to be treated.

On February 28, 2005, the relevant provisions read as follows:

Section 17 of the ESA 2000:

Section 31 of O Reg 285/01:

Accordingly:

  • Valid agreements to work in excess of the daily hours limit under the pre-March 1, 2005 hours of work rules that have not expired or been revoked continue to be valid agreements to work hours in excess of the daily limit for purposes of the new post-February 28, 2005 hours of work rules.
  • Valid agreements to work in excess of the weekly hours limit, to a maximum of 60 hours in a week, under the pre-March 1, 2005 hours of work rules that have not expired or been revoked continue to be valid agreements to work hours in excess of the weekly limit for purposes of the post-February 28, 2005 hours of work rules.
  • Valid agreements to work in excess of 60 hours in a week under the pre-March 1, 2005 hours of work rules that have not expired or been revoked continue to be valid agreements to work hours in excess of the weekly limit for purposes of the post-February 28, 2005 hours of work rules.

While the agreements that were entered into under the authority of s. 17(2) and O Reg 285/01, s. 31 as they read on February 28, 2005 ("old agreements") are treated as if they are agreements made under the current s. 17 ("new agreements"), thereby negating the need for employers to enter into another agreement with employees when the amendments to the Act came into force, the rules regarding the Director’s information document are different. See the discussions of ss. 17(9) and (10) below. Otherwise, old agreements and new agreements are treated the same. In particular, employers who have old agreements with employees must seek approval from the Director before the employee can work more than 48 hours per work week.

Document re employee rights – Exceptions - s. 17(9)

This section sets out two exceptions to the application of s. 17(5). Section 17(5)  provides that agreements to work excess daily or weekly hours are not valid unless:

  • The employer, before the agreement is made, gives the employee a copy of a document prepared by the Director of Employment Standards that describes the rights of employees and obligations of employers under the hours of work and overtime pay provisions. The document given to the employee must be the most recent version of the document.

    and

  • The agreement contains a statement by the employee acknowledging that they received the document that the employer has represented is the most recent document the Director published.

See above for a discussion of s. 17(5).

Section 17(9) provides that the s. 17(5) requirement does not apply to:

An agreement described in s. 17(8)

The agreements described in s. 17(8) are those agreements that were entered into under the provisions of the Act before the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 came into force on March 1, 2005. Because the agreements were entered into at a time when the requirement of s. 17(5) was not in force, the conditions for a valid agreement in s. 17(5) do not apply.

Note however that s. 17(10) requires employers who are party to an agreement described in s. 17(8) to provide the information document to employees by June 1, 2005. See the discussion of s. 17(1) below.

Excess daily or weekly hours agreements that are entered into by employees who are represented by a union

The two conditions for a valid agreement that are set out in s. 17(5) do not apply to agreements made in respect of employees who are represented by a trade union.

Transition: Document re employee rights - s. 17(10)

This provision applies to employers who entered into agreements with employees described in s. 17(8), i.e., old agreements entered into under the provisions of the Act before amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 came into force on March 1, 2005.

Section 17(9) provides that the two conditions in s. 17(5) regarding the Director’s information document that must be satisfied before written agreements are valid do not apply to old agreements - see s. 17(9) above. However, s.17(10) requires employers who are a party to these old agreements to provide the employees concerned (unless represented by a union) with the most recent information document no later than June 1, 2005.

A failure by an employer who was party to an old agreement to provide the information document by June 1, 2005, while it constitutes a violation of the Act, does not invalidate the agreement, as contrasted with the result where an employer does not provide the document when an excess hours agreement is entered into on or after March 1, 2005 - see s. 17(5). However, the general proposition that agreements are not valid unless the employee gave their informed consent still applies to these old agreements. See the discussion of the requirements of written agreements at ESA Part I, s. 1(3) and s. 1(1.3).

Transition: Application for approval before commencement - s. 17(11)

This is a transitional provision. Pursuant to ESA Part VII, s. 17.1(22), employers can apply for approval of excess weekly hours agreements as of December 9, 2004, the day that the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 received Royal Assent, even though the amendments that require approvals for excess weekly hours are not effective until March 1, 2005. Applications are permitted prior to March 1, 2005 in order to facilitate a seamless transition between the old rules and the new rules.

Section 17(4) permits, in certain circumstances, an employee to work more than 48 hours a work week (up to a maximum of 60) if the employer has not received either an approval or a refusal of an excess weekly hours application within 30 days of the date the application was served. By virtue of s. 17(11), where an employer applies for an approval for excess weekly hours prior to March 1, 2005, the 30-day wait period will expire on March 1, 2005 at the earliest.

For example, an employee agreed in writing to work up to 55 hours per week for an indefinite period back in July 2003. The employer served an application for an excess weekly hours approval on the Director on January 28, 2005. As of March 1, 2005, the Director had not issued either an approval or a refusal of the application. This employee:

  • Was permitted to work 55 hours a week up to and including February 28, 2005, pursuant to the provisions of the Act that were then in force; and
  • On and after March 1, 2005, continues to be permitted to work up to 55 hours per work week pursuant to the pending approval rules of s. 17(4), assuming all of the conditions in s. 17(4) are met by the employer.

 

Section 17.1 — Hours in a work week: Application for approval — REPEALED

Section 17.2 — Non-application of s. 5(2) — REPEALED

Section 17.3 — Delegation by Director — REPEALED

Section 18 — Hours free from work

Hours free from work — s. 18(1)

This provision requires that an employee be free from performing work for a particular employer for a period of at least 11 consecutive hours in each day. This requirement is subject to s. 18(2) (employees on call) and s. 19 (exceptional circumstances).

The requirement for 11 consecutive hours off work in each day operates simultaneously with the other provisions in Part VII of the Employment Standards Act, 2000. For example, an employee may agree in writing to work two eight-hour shifts in a row without any break in between them, thus complying with s. 18(3), but if that results in the employee receiving less than 11 consecutive hours off in a day, the schedule will be in violation of s. 18(1) and, therefore, will not be permitted. In other words, an employee cannot agree to work hours that would result in the employee getting less than the 11 consecutive hours free from work required under s. 18(1). See Independent Paperworkers of Canada v Norampac Inc.

A period of at least 11 consecutive hours

The period of 11 hours free from work must be consecutive. That is, it must be a single period, continuous and unbroken. The word consecutive was added to s. 18(1) by the Government Efficiency Act, 2002, SO 2002, c 18, effective November 26, 2002. The amendment codified Program policy in this respect.

Each day

A day in this context means a 24-hour period; it does not have to be a calendar day. The Program uses the following interpretation of day in the context of s. 18(1):

  • The first day for an employee:
    • Begins at the beginning of his or her first shift in the work cycle; footnote 1 and
    • Ends 24 hours after it began.
  • The second day:
    • Begins with the first moment of work that is performed after the end of the first day. This may be immediately after the end of the first day (for example, in regular eight-hour or 12-hour shift schedules or when a day ends partway through a shift), or it may be some time after the end of the first day, depending on the type of shift schedule; and
    • Ends 24 hours after it began.
  • The third and each subsequent day begins and ends in the same manner as described above with respect to the second day.

This interpretation of day means that the days do not have to be consecutive. That is, there can be gaps of time in between the end of one day and the beginning of the next day, but only if the employee did not work during that time.

This interpretation of day also means that days cannot overlap with other days for that employee. That is, the beginning of a day cannot be any earlier than the end of the previous day.

Note that the Program’s policy regarding the interpretation of the word day in this section has been supported in an arbitrator’s decision — see Independent Paperworkers of Canada v Norampac Inc. on the principle that it appropriately refers to the employee’s actual work pattern (actual time on and time off) as opposed to a calendar day or even a day as defined in a collective agreement. The arbitrator took the position that the Program’s interpretation was:

Examples

Example 1: Illustration where there is a regular eight-hour shift schedule

Employee’s schedule:

  • Sunday: Off
  • Monday: 8:00 a.m. to 4:00 p.m.
  • Tuesday: 8:00 a.m. to 4:00 p.m.
  • Wednesday: 8:00 a.m. to 4:00 p.m.
  • Thursday: 8:00 a.m. to 4:00 p.m.
  • Friday: 8:00 a.m. to 4:00 p.m.
  • Saturday: Off

The days in this employee’s work cycle are:

  • Day 1: Monday 8:00 a.m. to Tuesday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 2: Tuesday 8:00 a.m. to Wednesday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 3: Wednesday 8:00 a.m. to Thursday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 4: Thursday 8:00 a.m. to Friday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 5: Friday 8:00 a.m. to Saturday 8:00 a.m.
    • Number of consecutive hours off: 12

There are at least 11 consecutive hours off in each day. As such, this schedule meets the requirements of s. 18(1).

Example 2: Illustration where there is a regular 12-hour shift schedule

Employee’s schedule:

  • Sunday: Off
  • Monday: 6:00 a.m. to 6:00 p.m.
  • Tuesday: 6:00 a.m. to 6:00 p.m.
  • Wednesday: 6:00 a.m. to 6:00 p.m.
  • Thursday: 6:00 a.m. to 6:00 p.m.
  • Friday: Off
  • Saturday: Off

The days in this employee’s work cycle are as follows:

  • Day 1: Monday 6:00 a.m. to Tuesday 6:00 a.m.
    • Number of consecutive hours off: 12
  • Day 2: Tuesday 6:00 a.m. to Wednesday 6:00 a.m.
    • Number of consecutive hours off: 12
  • Day 3: Wednesday 6:00 a.m. to Thursday 6:00 a.m.
    • Number of consecutive hours off: 12
  • Day 4: Thursday 6:00 a.m. to Friday 6:00 a.m.
    • Number of consecutive hours off: 12

There are at least 11 consecutive hours off in each day. As such, this schedule meets the requirements of s. 18(1).

Note that while an employee with this kind of shift schedule may agree in writing to work more than twelve hours a day, thereby complying with s. 17 of the Act, their ability to do so is restricted by s. 18. For example, an employee with this kind of shift schedule may agree in writing to work an extra four hours after their regular 12-hour shift because a co-worker did not show up. While the requirements of s. 17 (which permits employees to work in excess of their regular established work day that is longer than eight hours if they agree in writing to do so) and s. 18(3) (which permits employees to work successive shifts that together total more than 13 hours if they agree in writing to do so) are met, the requirements of s. 18(1) will not be met. The employee would have worked 16 hours in a day, resulting in there being only eight consecutive hours free from work in that day.

Example 3: Illustration where there is an irregular schedule

Employee’s schedule:

  • Sunday: Off
  • Monday: 8:00 a.m. to 4:00 p.m.
  • Tuesday: 12:00 p.m. to 8:00 p.m.
  • Wednesday: 8:00 a.m. to 4:00 p.m.
  • Thursday: 2:00 p.m. to 10:00 p.m.
  • Friday: 12:00 p.m. to 8:00 p.m.
  • Saturday: Off

The days in this employee’s work cycle are:

  • Day 1: Monday 8:00 a.m. to Tuesday 8:00 a.m.
    • Number of consecutive hours off: 16 (from 4:00 p.m. Monday to 8:00 a.m. Tuesday)
  • Day 2: Tuesday 12:00 p.m. to Wednesday 12:00 p.m. (Note: The hours off between Tuesday 8:00 a.m. and Tuesday 12:00 p.m. are not included in any day.)
    • Number of consecutive hours off: 12 (from 8:00 p.m. Tuesday to 8:00 a.m. Wednesday)
  • Day 3: Wednesday 12:00 p.m. to Thursday 12:00 p.m. (Note: Because the second day ended partway through a shift, the third day starts immediately after the end of the second day, i.e., partway through the same shift.)
    • Number of consecutive hours off: 20 (from 4:00 p.m. Wednesday to 12:00 p.m. Thursday)
  • Day 4: Thursday 2:00 p.m. to Friday 2:00 p.m. (Note: The hours off between Thursday 12:00 p.m. and 2:00 p.m. are not included in any day.)
    • Number of consecutive hours off: 14 (from 10:00 p.m. Thursday to 12:00 p.m. Friday)
  • Day 5: Friday 2:00 p.m. to Saturday 2:00 p.m.
    • Number of consecutive hours off: 18 (from 8:00 p.m. Friday to 2:00 p.m. Saturday)

There are at least 11 consecutive hours off in each day. As such, this schedule meets the requirements of s. 18(1).

Example 4: The short shift change
Example of a prohibited short shift change

Employee’s schedule:

  • Sunday: Off
  • Monday: 8:00 a.m. to 4:00 p.m.
  • Tuesday: 8:00 a.m. to 4:00 p.m.
  • Wednesday: 8:00 a.m. to 4:00 p.m.
  • Thursday: 12:00 a.m. to 8:00 a.m.
  • Friday: 12:00 a.m. to 8:00 a.m.
  • Saturday: 12:00 a.m. to 8:00 a.m.

In this example, the employee moves from working the 8 am to 4 pm shift to working the midnight to 8 am shift in the same cycle.

The days in this employee’s work cycle are as follows:

  • Day 1: Monday 8:00 a.m. to Tuesday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 2: Tuesday 8:00 a.m. to Wednesday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 3: Wednesday 8:00 a.m. to Thursday 8:00 a.m.
    • Number of consecutive hours off: 8
  • Day 4: Friday 12:00 a.m. to Saturday 12:00 a.m. (Note: The hours off between Thursday 8:00 a.m. and Friday 12:00 a.m. are not included in any day)
    • Number of consecutive hours off: 16
  • Day 5: Saturday 12:00 a.m. to Sunday 12:00 a.m.
    • Number of consecutive hours off: 16

There is no period of 11 consecutive hours off in the third day, which is Wednesday 8:00 a.m. to Thursday 8:00 a.m. During that day, which is when the short shift change occurred, the employee worked 8:00 a.m. to 4:00 p.m., was off from 4:00 p.m. to 12:00 a.m. (eight hours) and then went back to work from midnight to 8:00 a.m. The employee received only eight consecutive hours off. This schedule does not meet the requirements of s. 18(1).

Example of a permitted short shift change

Employee’s schedule:

  • Sunday: Off
  • Monday: 8:00 a.m. to 4:00 p.m.
  • Tuesday: 8:00 a.m. to 4:00 p.m.
  • Wednesday: 8:00 a.m. to 4:00 p.m.
  • Thursday: 4:00 a.m. to 12:00 p.m.
  • Friday: 4:00 a.m. to 12:00 p.m.
  • Saturday: Off

In this example, the employee moves from working the 8 am to 4 pm shift to working the 4:00 a.m. to 12:00 p.m. shift in the same work cycle.

The days in this employee’s work cycle are as follows:

  • Day 1: Monday 8:00 a.m. to Tuesday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 2: Tuesday 8:00 a.m. to Wednesday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 3: Wednesday 8:00 a.m. to Thursday 8:00 a.m.
    • Number of consecutive hours off: 12
  • Day 4: Thursday 8:00 a.m. to Friday 8:00 a.m. (Note: because the third day ended partway through a shift, the fourth day starts immediately after the end of the third day, i.e., partway through the same shift)
    • Number of consecutive hours off: 16
  • Day 5: Friday 8 am to Saturday 8 am
    • Number of consecutive hours off: 20

There are at least 11 consecutive hours off in each day. As such, this schedule meets the requirements of s. 18(1).

Example 5: Back-to-back shifts
Example of a prohibited back-to-back shift in a regular eight-hour shift schedule

Employee’s schedule:

  • Sunday: Off
  • Monday: 8:00 a.m. to 4:00 p.m.
  • Tuesday: 8:00 a.m. to 4:00 p.m.
  • Wednesday:
    • First shift: 8:00 a.m. to 4:00 p.m.
    • Second shift: 4:00 p.m. to 12:00 a.m.
  • Thursday: 8:00 a.m. to 4:00 p.m.
  • Friday: 8:00 a.m. to 4:00 p.m.
  • Saturday: Off

In this example, the employee normally works 8 am to 4 pm, Monday to Friday. On Wednesday, the employee is asked to stay on and work an extra eight hour shift. The employee agrees in writing to receive less than eight hours off in between successive shifts that total more than 13 hours, as required by s. 18(3). However, the resulting schedule does not meet the s. 18(1) requirement to have at least 11 consecutive hours off each day.

The days in this employee’s work cycle are as follows:

  • Day 1: Monday 8:00 a.m. to Tuesday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 2: Tuesday 8:00 a.m. to Wednesday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 3: Wednesday 8:00 a.m. to Thursday 8:00 a.m.
    • Number of consecutive hours off: 8
  • Day 4: Thursday 8:00 a.m. to Friday 8:00 a.m.
    • Number of consecutive hours off: 16
  • Day 5: Friday 8:00 a.m. to Saturday 8:00 a.m.
    • Number of consecutive hours off: 16

There is no period of 11 consecutive hours off in the third day, which is day is Wednesday 8:00 a.m. to Thursday 8:00 a.m. During that day, which is when the back-to-back shift occurred, the employee worked 8:00 a.m. to 4:00 p.m., then again from 4:00 p.m. to 12:00 p.m., and was off from midnight to 8:00 a.m. (eight hours). The employee received only eight consecutive hours off. This schedule does not meet the requirements of s. 18(1).

Exception — s. 18(2)

This provision provides an exception to the requirement in s. 18(1) that an employee be given at least 11 consecutive hours free from work each day. The exception applies to an employee who is on call and is called in during a period he or she would not otherwise have been expected to work.

This on call exception is an exception only to the 11 consecutive hours free from work each day requirement ins. 18(1). It is not an exception to any other hours of work provisions, e.g., limits on hours of work, requirement for time off between shifts, the weekly or bi-weekly free time requirement. This means, for example, that if the hours worked while on call will result in the s. 17(1) limits on hours of work being exceeded, the employer must first get the employee’s written agreement to work the excess hours.

The phrase called in during a period in which the employee would not otherwise be expected to perform work has been held not to include situations where the employee was asked to remain at work following the conclusion of his or her regular shift. In Imperial Tobacco v Bakery, Confectionary and Tobacco Workers International Union, Local 323T, (2002), 111 LAC (4th) 434 (Ont Arb Bd), although the union argued that such post-shift work was described in the collective agreement overtime provisions as call-in work, the arbitrator disagreed and in any case held that this could not override the meaning of the phrases on call and called in to work as used in s. 18(2). As a consequence, the exception in s. 18(2) did not apply and the parties were subject to the 11-hour daily rest requirement.

Similarly, the Program does not consider an employee who had been asked to work a relief shift (e.g., to pick up a shift for an employee who had called in sick) to be an employee who is on call.

The Program considers on call employees to refer, for example, to an employee who is required to be accessible by pager, phone or e-mail to respond to call(s) to perform work. The work so performed may include work done over the phone or by e-mail as well as work done at the employer’s workplace.

Free from work between shifts — s. 18(3)

This section requires employers to provide employees with a minimum period free from work of eight hours between successive shifts, with two exceptions. First, an employee may work successive shifts without the eight-hour free period if the total number of hours worked on the successive shifts is 13 or less. Second, the employer and employee can agree, in writing, to forego the eight hour period entirely or reduce its length – see ESA Part I, subsections 1(3) and (3.1) for more information on agreements in writing.

Successive shifts are two shifts following one after another, whether or not there is time off in between the shifts. It includes split shifts, back-to-back shifts, as well as ordinary daily shifts. Section 18(3) may also apply when an employee is on an on call shift. In that case, the employee is not at the workplace but is holding himself or herself ready for a call to work — see the discussion of this term in subsection (2) above. Note that when employees are on call the first point in an on call period in which the employee actually performs work will mark the commencement of a successive shift and any time actually worked while the employee is on call will count towards the maximum 13 hours of work that may be performed.

The requirement for rest in between shifts operates simultaneously with the other provisions in Part VII of the Act. For example, an employee may agree in writing to work two eight-hour shifts in a row without any break in between them, thus complying with s. 18(3), but if that results in the employee receiving less than 11 consecutive hours off in a day as required by s. 18(1), the schedule will be in violation of s. 18(1) and, therefore, will not be permitted.

On a similar note, the other provisions in Part VII continue to apply even if one of the two exceptions to the application of s. 18(3) apply. For example, an employee may work his or her regular six-hour shift, then be asked by the employer to stay on for another six-hour shift. While the requirement for the eight-hour period free from work between shifts will not apply (because the time worked on successive shifts is 13 hours or less), the hours of work limit in s. 17(1), for example, do apply and the employer must get the employee’s written agreement to work excess daily hours.

Some have argued that s. 18(3) is redundant of s. 18(1), in that it does not require any rest period that s. 18(1) does not already require. The following example demonstrates how that is not the case:

Section 18(1) requires 11 hours off per day. Section 18(3) requires eight hours off between shifts when consecutive shifts exceed 13 hours.

Employee’s schedule:

  • Monday:
    • First shift: 6:00 a.m. to 10:00 a.m.
    • Second shift: Monday 9:00 p.m. to Tuesday 7:00 a.m.
  • Tuesday: 2:00 p.m. to 6:00 a.m.

Days in employee’s work cycle:

  • Day 1: Monday 6:00 a.m. to Tuesday 6:00 a.m.
    • Number of consecutive hours off: 11 hours
  • Day 2: Tuesday 6:00 a.m. to Wednesday 6:00 a.m.
    • Number of consecutive hours off: 7 hours (between 7:00 a.m. and 2:00 p.m.) and 11 hours (between Tuesday 6:00 p.m. to Wednesday 6:00 a.m.)

Day 1 and day 2 comply with s. 18(1) because the employee has at least 11 hours off each day. Day 2 does not comply with s. 18(3), because the total number of hours worked during the 10 hour shift (which started on day 1 and finished on day 2) and the following four hour shift exceeds 13 hours, yet there are only seven hours off between the two shifts. Unless there is a written agreement as per s. 18(3), there will be a violation of s. 18(3). Section 18(3) is not concerned with what happens in a day, it only deals with time off between shifts, regardless of which day those shifts fall on.

Weekly or bi-weekly free time requirements — s. 18(4)

Section 18(4) of the Act establishes weekly or bi-weekly free time requirements for employees. The free time periods must be at least either:

  • 24 consecutive hours in every work week; or
  • 48 consecutive hours in every two consecutive work weeks.

Every period of two consecutive work weeks

The reference to two consecutive work weeks indicates a rolling two work week period. Program policy originally viewed each period of two work weeks as separate and distinct with no overlap. However, the language of the section indicates that free time is to be in every period of two work weeks. Program policy now is that in each and every period of two work weeks, the employer must provide an employee a period free from the performance of work of at least 48 consecutive hours. For example, if an employer provides employees with a period free from the performance of work on a bi-weekly basis, there must be a period of at least 48 consecutive hours in which the employee is free from work in work weeks 1 and 2, in work weeks 2 and 3, in work weeks 3 and 4, and so forth.

Any time an employee is free from the performance of work can be used to satisfy the requirement of s. 18(4). For example, time an employee is off work because they are off on a public holiday, on sick, family responsibility or bereavement leave, on short-term disability, or on vacation can all be used to satisfy this requirement.

A work week is defined in s. 1(1) of the Act as:

See ESA Part I, s. 1 for a discussion of the definition of "work week".

There is no provision for employees to agree to forego their required weekly or bi-weekly free time. However, the right to the free time can be overridden in s. 19 exceptional circumstances.

Switching from compliance with the weekly free time requirement to the bi-weekly free time requirement, and vice versa

The issue has arisen as to whether an employer is permitted under this section to switch back and forth from complying with the weekly free time requirement in some weeks to complying with the bi-weekly free time requirement in other weeks, and vice versa.

Nothing in this subsection prohibits the practice of switching. However, the manner in which the switch must be effected in order to be in compliance with s. 18(4) will result in a schedule that provides the employee with, on average, no less than 24 hours free from the performance of work in every work week.

For example:

The employer starts its schedule by complying with the bi-weekly free time requirement:

  • Week 1: 0 hours off
  • Week 2: 48 hours off
  • Week 3: 0 hours off

The employer then wants to switch to comply with the weekly free time requirement. It creates this schedule:

  • Week 4: 24 hours off
  • Week 5: 24 hours off
  • Week 6: 24 hours off

This schedule is not in compliance with s. 18(4). As stated above, the reference in s. 18(4)(b) to every two consecutive work weeks is a rolling two work week period; every two work weeks must contain at least 48 hours of free time in order to comply with the biweekly free time requirement. In this example, Week 1 and Week 2 and Week 3 are all subject to the biweekly free time requirement. This means that:

  • With respect to Week 1: there must be at least 48 hours free from work in the weeks of Week 1 and Week 2. The requirement is met in the example.
  • With respect to Week 2: there must be at least 48 hours free from work in the weeks of:
    • Week 1 and Week 2, and
    • Week 2 and Week 3.

The requirement is met in the example.

  • With respect to Week 3: there must be at least 48 hours free from work in the weeks of:
    • Week 2 and Week 3, and
    • Week 3 and Week 4.

Because only 24 hours free time were provided in the two-week period of Week 3 and Week 4, the employer has not complied with s. 18(4) in this example. In order to effect the switch from complying with the biweekly free time requirement to the weekly free time requirement after Week 3, the employer must schedule at least 48 hours off in Week 4.

Section 19 — Exceptional circumstances

Exceptional circumstances — s. 19

This provision allows employers to require employees to work more daily or weekly hours than are permitted under s. 17 or to work during a free period (daily, in between shifts and weekly or bi-weekly) as required by s. 18, in any of the four specified circumstances, but only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations.

Hours worked pursuant to s. 19 while s. 19 is in operation are not counted towards the normal limits in s. 17, nor are they taken into account when determining whether the requirements for free periods under s. 18 have been met. (Note, however, that hours worked while s. 19 is in operation will count for the purposes of determining whether any overtime pay is owing.)

Emergency

An employer may require an employee to work hours in excess of those permitted under s. 17 or during a free period required under s. 18 to deal with an emergency, but only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations.

For example, a fire in the workplace or a natural disaster may constitute an emergency.

Unforeseen occurrence affecting public services

An employer may require an employee to work hours in excess of those permitted under s. 17 or during a free period required under s. 18, but only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations, if:

  • An unforeseen event occurs; and
  • The unforeseen event threatens to disrupt the continued delivery of essential public services.

The phrase essential public services refers to services that are provided to the public at large and which may be considered essential because they are necessary for an employer to prevent situations that could result in, for example:

  • Danger to life, health or safety;
  • The destruction or serious deterioration of machinery, equipment or premises;
  • Serious environmental damage; or
  • Disruption of the administration of the courts.

An example of an essential public service would include the provision of an uninterrupted public power supply if a disruption could result in any of the situations listed above. For example, if a power disruption would threaten patient care at hospitals and nursing homes, an uninterrupted supply of power would be considered an essential public service since it is necessary to prevent danger to the life, health and safety of patients.

This exception applies regardless of who delivers those [essential public] services. As such, this provision could apply to employees who work for private companies that deliver public services (for example, privately run ambulance or road-clearing services, or a business that provides food to hospitals).

Unforeseen occurrence affecting continuous processes or seasonal operations

An employer may require an employee to work hours in excess of those permitted under s. 17 or during a free period required under s. 18, but only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations if:

  • An unforeseen event occurs; and
  • The unforeseen event threatens to disrupt continuous processes or seasonal operations.

Urgent repair to plant or equipment

An employer may require an employee to work hours in excess of those permitted under s. 17 or during a free period required under s. 18, but only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations, if the employee is needed to carry out urgent repair work to the employer’s plant or equipment.

An example of such a situation may be where management determines, whether or not in the course of routine maintenance, that repairs are urgently required to be done to machinery and a delay in carrying out the repairs will result in serious damage.

When section 19 will not apply

Section 19 is intended to allow employers to require employees to work hours in excess of the usual limits or during required rest periods only in exceptional circumstances. It is not intended to allow employers to require extra work of employees to address, for example, problems that arise because of inadequate business planning, or changes in business cycles (e.g., a fluctuation in the level of demand for the employer’s product).

Section 20 — Eating periods

Eating periods — s. 20(1)

This section imposes an obligation upon an employer to provide an eating period of at least 30 minutes timed so that no employee works longer than five consecutive hours without receiving an eating period. This requirement is subject to the exception set out in s. 20(2).

Unless the employee receives an uninterrupted 30 minutes, he or she is not considered to have received his or her entitlement under s. 20(1). However, note that under s. 6(2)(a)(i) of O Reg 285/01, work performed during the time employees are entitled to take time off work for an eating period (i.e., where the employee decides on his or her own initiative to work during the eating period even though he or she is entitled to the time off to eat) is deemed not to be performed. See O Reg 285/01, s. 6 for a discussion of this provision.

It is the Program’s policy that s. 20 of the Employment Standards Act, 2000 and s. 6 of O Reg 285/01 allows employers to require employees to take their eating periods in a designated place (e.g., on the employer’s premises) and to be on call (i.e., available to return to work) while on the eating period. Unless the employee is actually required to work during the eating period (i.e., he or she is interrupted by a work demand before the period is completed), the employee will be considered to have received the eating period entitlement for the purposes of s. 20.

Further, it is the Program’s policy that the Act does not require employers to schedule a particular time for the employee to take as the eating period. For example, in a retail shop that has only one employee working during a shift, the employer may tell the employee to take his/her eating period when there are no customers for a stretch of time. If the employee has an uninterrupted period of 30 minutes during the requisite five-hour period, there will be compliance with s. 20. If an employee is interrupted at any point during the 30-minute period, the eating period is considered not to have been provided, and a new uninterrupted 30-minute period must be given during the requisite five-hour period. See subsection (2) below for a discussion on splitting up the eating period under s. 20(2).

It should also be noted that there is no obligation upon an employer under the Act to provide any break (e.g., coffee breaks) in addition to the eating period requirement of s. 20(1).

Exception — s. 20(2)

This section provides an exception to the eating period requirement in s. 20(1). It provides that instead of the requirement in s. 20(1), an employer and employee may agree to an alternative eating period arrangement whereby the employee receives two eating periods that together total at least 30 minutes within a period of five consecutive hours. Agreements under this section need not be in writing. Unlike the requirement in s. 20(1), the eating periods must be completed before the five-hour period expires (under s. 20(1), the eating period can begin at the five-hour mark). For example, an employer and employee may agree that an employee will receive two 15-minute eating periods within the 5-hour period. Consistent with the Program’s interpretation of s. 20(1), it is the Program’s position that the employer is not required to schedule particular times for the employee to take the eating periods as long as it is within the time period specified in s. 20(2). Additionally, the employer can require the employee to take the two 15-minute periods in a designated place and to be on call while on the break. For employees to be considered to have received their entitlement under s. 20(2), the two eating periods must be uninterrupted. (However, note that under s. 6(2)(a)(i) of O Reg. 285/01, work performed during the time employees are entitled to take time off work for an eating period (i.e., where the employee decides on his or her own initiative to work during the eating period(s) even though he or she is entitled to the time off to eat) is deemed not to be performed. See O Reg. 285/01, s.6 for a discussion of this provision.

Agreements under s. 20(2) can specify the length of the two shorter periods, or they can be open-ended, providing that the two shorter periods will be of unspecified lengths that together total 30 minutes. For example, there is a one-person workplace where the employee is required to remain at the workplace on call, and the employer does not schedule a particular time for the employee to take the eating period. The employer and employee may enter into an agreement that provides that the eating period will be split into two shorter periods of unspecified length as may be necessary to deal with customers. In this case, if, for example, the employee had 20 uninterrupted minutes before a customer came in, there will be compliance with s. 20(2) so long as the employee subsequently has an uninterrupted 10-minute period within the requisite five-hour period.

There is no provision for an employer and an employee to agree to take the eating period in more than two instalments, to eliminate eating periods altogether or to extend the time in which an eating period must be given (e.g., to six or seven hours).

Section 21 — Payment not required

This provision states that employers are not obliged to pay employees for time spent on eating periods where work is not being performed, unless the terms of the employee’s employment contract stipulate otherwise.

In the event that an employee is required to work during the eating period, the eating period counts as hours of work and must be paid for only to the extent of the actual interruption. (In such a case, there may also be a violation of the s. 20 requirement to provide the employee with an eating period.) The rules are different for breaks other than eating periods, e.g., coffee breaks. See O Reg 285/01, s. 6.

Section 21.1 — Director to prepare document

Director to prepare document — s. 21.1(1); If document not up to date — ss. 21.1(2)

These provisions are to be read in conjunction with s. 17(5) of the Employment Standards Act, 2000. Section 17(5) provides that employees' written agreements to work excess daily or weekly hours are, with some exceptions, invalid unless, among other things, the employer gives the employee a copy of the Director’s information document described in s. 21.1 before the employee enters into the agreement.

Note that pursuant to s. 17 (9), this requirement does not apply in respect of excess hours agreements made before March 1, 2005, the date that the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, SO 2004, c 21 came into force, or in respect of excess hours agreements relating to an employee represented by a union [whenever made], although in the case of the former the employer was (pursuant to another subsection — s. 17(10) — that has since been repealed) required to provide a copy of the information document to the employee concerned by June 1, 2005.

These provisions provide that the Director of Employment Standards will prepare and publish an information document that describes rights of employees and obligations of employers under Part VII (Hours of Work and Eating Periods) and Part VIII (Overtime Pay). The rights and obligations that are to be contained in the document are those that the Director believes an employee should be made aware of in connection with excess hours agreements. If the Director believes that the document is out of date, he or she will prepare and publish a new document.


Footnotes

  • footnote[1] Back to paragraph A new work cycle begins after every rest period of 24 hours or longer. It is not necessarily the same period as a "work week" as defined in ESA Part 1, s. 1.