Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, S.O. 2004, c. 21 - Bill 63

EXPLANATORY NOTE

This Explanatory Note was written as a reader’s aid to Bill 63 and does not form part of the law. Bill 63 has been enacted as Chapter 21 of the Statutes of Ontario, 2004.

The Bill makes amendments to the Employment Standards Act, 2000 to deal with hours in a work week, averaging agreements and various other matters. The amendments come into force on March 1, 2005.

Employers are prohibited from requiring or permitting employees to work more than 48 hours in a work week unless the employees have agreed to do so, in writing, and the employer has been issued an approval by the Director of Employment Standards. (Currently, an approval is required only if the hours in a work week would exceed 60.) (Section 4 of the Bill; sections 17, 17.1, 17.2 and 17.3 of the Act.)

If the employer has applied for an approval and the Director has not yet made a decision on the application, employees may begin working the additional hours, up to a maximum of 60 hours in a week, 30 days after the application is made, if certain conditions are met. Employers may apply for approvals on or after the day the Bill receives Royal Assent; if an application is made more than 30 days before March 1, 2005, the 30-day period ends on that day. Approvals are given for a maximum of three years, with a one-year maximum if the hours in a work week would exceed 60. In deciding whether to give approval, the Director could consider such factors as he or she considers relevant, including an employer’s compliance history and employee health and safety. (Section 4 of the Bill; sections 17, 17.1, 17.2 and 17.3 of the Act.)

The section of the Act that states that a provision in the employment contract that provides a greater right than an employment standard prevails over the employment standard cannot be used to circumvent the requirements respecting approvals if employees would be working more than 48 hours in a week. Existing agreements to work hours in excess of the limits in the Act continue to be valid, but are subject to the requirement to obtain an approval if the hours exceed 48 in a week. Existing approvals under the current hours of work provisions are terminated. (Section 4 of the Bill; sections 17, 17.1, 17.2 and 17.3 of the Act.)

Agreements to work more than the daily and weekly limits in the Act continue to be revocable, by employees on two weeks’ notice and by employers on reasonable notice. Employees entering into such agreements on or after the day on which the amendments come into force must be provided with a copy of a document prepared by the Director of Employment Standards providing them with information on their rights under the hours of work and overtime pay provisions of the Act, and the agreements must contain an acknowledgment that the copy was provided. In the case of existing hours of work agreements, the information document must be provided to employees on or before June 1, 2005. (Sections 4 and 5 of the Bill; subsections 17 (5), (6), (7) and (10) and section 21.1 of the Act.)

Employers and employees may continue to make written agreements to average hours of work for overtime pay purposes, but employers are required to obtain approval from the Director of Employment Standards to engage in averaging. (Currently an approval is required only if the averaging period would exceed four weeks.) (Sections 6 and 7 of the Bill; sections 22, 22.1 and 22.2 of the Act.)

If the employer has applied for an approval and the Director has not yet made a decision on the application, the employer may begin averaging, using averaging periods of up to two weeks, 30 days after the application is made, if certain conditions are met. Employers may apply for approvals on or after the day the Bill receives Royal Assent; if an application is made more than 30 days before March 1, 2005, the 30-day period ends on that day. In deciding whether to give approval, the Director could consider such factors as he or she considers relevant, including an employer’s compliance history and employee health and safety. (Sections 6 and 7 of the Bill; sections 22, 22.1 and 22.2 of the Act.)

Existing averaging agreements continue to be valid, but are subject to the requirement to obtain an approval; existing approvals under the current averaging provisions are terminated. (Sections 6 and 7 of the Bill; sections 22, 22.1 and 22.2 of the Act.)

The Director’s authority to issue approvals for hours of work in excess of 48 in a week and approvals for averaging may be delegated to any Ministry of Labour employee. (Sections 4 and 7 of the Bill; sections 17.3 and 22.2 of the Act.)

The existing requirement that employers post in the workplace material containing information about the Act and regulations, as prescribed by regulation, is replaced by a requirement to post a poster prepared by the Minister that provides information about the Act and regulations. (Section 1 of the Bill; section 2 of the Act.)

Employers are required to retain copies of employee agreements to work hours in excess of the limits in the Act, and employee agreements to average hours of work for overtime pay purposes, for three years after work was last performed under them. (Section 2 of the Bill; subsections 15 (8) and (9) of the Act.)

The provision requiring employers to ensure the ready availability of records and documents for inspection is amended to include records of vacation time and vacation pay. (Section 3 of the Bill; section 16 of the Act.)

When a person is convicted of an offence under the Act, the person’s name and other information about the offence, conviction and sentence may be published, including on the Internet. (Section 9 of the Bill; section 138.1 of the Act.)

The regulation-making provisions of the Act that deal with rules for particular industries are rewritten, and a provision authorizing conditional regulations is added. (Subsections 10 (1) and (3) of the Bill; section 141 of the Act.)

Subsection 141 (10) of the Act is amended to clarify that the reference to approvals of excess hours agreements in that subsection is to approvals given under a regulation made under paragraph 9 of subsection 141 (1) of the Act, not to other approvals that may be given under the Act. (Subsection 10 (6) of the Bill; subsection 141 (10) of the Act.)

The Bill also includes consequential amendments.

Français

chapter 21

An Act to amend the
Employment Standards Act, 2000
with respect to hours of work
and certain other matters

Assented to December 9, 2004

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

1. Section 2 of the Employment Standards Act, 2000 is repealed and the following substituted:

Minister to prepare poster

2. (1) The Minister shall prepare and publish a poster providing such information about this Act and the regulations as the Minister considers appropriate.

If poster not up to date

(2) If the Minister believes that the poster prepared under subsection (1) has become out of date, he or she shall prepare and publish a new poster.

Material to be posted

(3) Every employer shall post and keep posted in at least one conspicuous place in every workplace of the employer where it is likely to come to the attention of employees in that workplace a copy of the most recent poster published by the Minister under this section.

Where majority language not English

(4) If the majority language of a workplace of an employer is a language other than English, the employer shall make enquiries as to whether the Minister has prepared a translation of the poster into that language, and if the Minister has done so, the employer shall post and keep posted a copy of the translation next to the copy of the poster.

2. Section 15 of the Act, as amended by the Statutes of Ontario, 2002, chapter 18, Schedule J, section 3, is amended by adding the following subsections:

Retention of agreements re excess hours

(8) An employer shall retain or arrange for some other person to retain copies of every agreement that the employer has made with an employee permitting the employee to work hours in excess of the limits set out in subsection 17 (1) for three years after the last day on which work was performed under the agreement.

Retention of averaging agreements

(9) An employer shall retain or arrange for some other person to retain copies of every averaging agreement that the employer has made with an employee under clause 22 (2) (a) for three years after the last day on which work was performed under the agreement.

3. Section 16 of the Act is amended by striking out “under section 15” and substituting “under sections 15 and 15.1”.

4. Section 17 of the Act is repealed and the following substituted:

Limit on hours of work

17. (1) Subject to subsections (2) and (3), no employer shall require or permit an employee to work more than,

(a) eight hours in a day or, if the employer establishes a regular work day of more than eight hours for the employee, the number of hours in his or her regular work day; and

(b) 48 hours in a work week.

Exception: hours in a day

(2) An employee’s hours of work may exceed the limit set out in clause (1) (a) if the employee has made an agreement with the employer that he or she will work up to a specified number of hours in a day in excess of the limit and his or her hours of work in a day do not exceed the number specified in the agreement.

Exception: hours in a work week

(3) An employee’s hours of work may exceed the limit set out in clause (1) (b) if,

(a) the employee has made an agreement with the employer that he or she will work up to a specified number of hours in a work week in excess of the limit;

(b) the employer has received an approval under section 17.1 that applies to the employee or to a class of employees that includes the employee; and

(i) the number of hours specified in the agreement, and

(ii) the number of hours specified in the approval.

Same, pending approval

(4) Despite subsection (3), an employee’s hours of work may exceed the limit set out in clause (1) (b) even though the employer has not received the approval described in clause (3) (b), if,

(a) the employee has made an agreement described in clause (3) (a) with the employer;

(b) the employer has served on the Director an application for an approval under section 17.1;

(c) the application is for an approval that applies to the employee or to a class of employees that includes the employee;

(d) 30 days have passed since the application was served on the Director;

(e) the employer has not received a notice that the application has been refused;

(f) the employer’s most recent previous application, if any, for an approval under section 17.1 was not refused;

(g) the most recent approval, if any, received by the employer under section 17.1 was not revoked;

(h) the employer has posted and kept posted a copy of the application in at least one conspicuous place in the workplace where the employee works, so that it is likely to come to the employee’s attention; and

(i) the employee’s hours of work in a work week do not exceed any of,

(i) the number of hours specified in the application,

(ii) the number of hours specified in the agreement, and

(iii) 60 hours.

Document re employee rights

(5) An agreement described in subsection (2) or in clause (3) (a) is not valid unless,

(a) the employer has, before the agreement is made, provided the employee with a copy of the most recent document published by the Director under section 21.1; and

(b) the agreement contains a statement in which the employee acknowledges that he or she has received a document that the employer has represented is the most recent document published by the Director under section 21.1.

Revocation by employee

(6) An employee may revoke an agreement described in subsection (2) or in clause (3) (a) two weeks after giving written notice to the employer.

Revocation by employer

(7) An employer may revoke an agreement described in subsection (2) or in clause (3) (a) after giving reasonable notice to the employee.

Transition: certain agreements

(8) For the purposes of this section,

(a) an agreement to exceed the limit on hours of work in a day set out in clause (1) (a) of this section as it read on February 28, 2005 shall be treated as if it were an agreement described in subsection (2);

(b) an agreement to exceed the limit on hours of work in a work week set out in clause (1) (b) of this section as it read on February 28, 2005 shall be treated as if it were an agreement described in clause (3) (a); and

(c) an agreement to exceed the limit on hours of work in a work week set out in clause (2) (b) of this section as it read on February 28, 2005 shall be treated as if it were an agreement described in clause (3) (a).

Document re employee rights – exceptions

(9) Subsection (5) does not apply in respect of,

(a) an agreement described in subsection (8); or

(b) an agreement described in subsection (2) or in clause (3) (a) in respect of an employee who is represented by a trade union.

Transition: document re employee rights

(10) On or before June 1, 2005, an employer who made an agreement described in subsection (8) with an employee who is not represented by a trade union shall provide the employee with a copy of the most recent document published by the Director under section 21.1.

Transition: application for approval before commencement

(11) If the employer applies for an approval under section 17.1 before March 1, 2005, the 30-day period referred to in clause (4) (d) shall be deemed to end on the later of,

(a) the last day of the 30-day period; and

(b) March 1, 2005.

Hours in work week: application for approval

17.1 (1) An employer may apply to the Director for an approval allowing some or all of its employees to work more than 48 hours in a week.

Form

(2) The application shall be in a form provided by the Director.

Service of application

(3) The application shall be served on the Director,

(a) by being delivered to the Director’s office on a day and at a time when it is open;

(b) by being mailed to the Director’s office using a method of mail delivery that allows delivery to be verified; or

When service effective

(4) Service under subsection (3) shall be deemed to be effected,

(a) in the case of service under clause (3) (a), on the day shown on a receipt or acknowledgment provided to the employer by the Director or his or her representative;

(b) in the case of service under clause (3) (b), on the day shown in the verification;

(c) in the case of service under clause (3) (c), on the day on which the electronic or telephonic transmission is made, subject to subsection (5).

Same

(5) Service shall be deemed to be effected on the next day on which the Director’s office is not closed, if the electronic or telephonic transmission is made,

(a) on a day on which the Director’s office is closed; or

(b) after 5 p.m. on any day.

Application to be posted

(6) An employer who makes an application under subsection (1) shall,

(a) on the day the application is served on the Director, post a copy of the application in at least one conspicuous place in every workplace of the employer where the employee or class of employees in respect of whom the application applies works, so that it is likely to come to the attention of the employee or class of employees;

(b) keep the copy or copies posted as set out in clause (a) until an approval is issued or a notice of refusal is given to the employer.

Criteria

(7) The Director may issue an approval to the employer if the Director is of the view that it would be appropriate to do so.

Same

(8) In deciding whether it is appropriate to issue an approval to the employer, the Director may take into consideration any factors that he or she considers relevant, and, without restricting the generality of the foregoing, he or she may consider,

(a) any current or past contraventions of this Act or the regulations on the part of the employer;

(b) the health and safety of employees; and

Employees to whom approval applies

(9) An approval applies to the employee or class of employees specified in the approval, and applies to every employee in a specified class whether or not the employee was employed by the employer at the time the approval was issued.

Same

(10) For greater certainty, all the employees of the employer may constitute a specified class.

Approval to be posted

(11) An employer to whom an approval is issued shall,

(a) remove the copy or copies of the application that were posted under subsection (6); and

(b) post the approval or a copy of the approval in at least one conspicuous place in every workplace of the employer where the employee or class of employees in respect of whom the approval applies works, so that it is likely to come to the attention of the employee or class of employees.

Same

(12) The employer shall keep each approval or copy posted as set out in clause (11) (b) until the approval expires or is revoked, and shall then remove it.

Expiry

(13) An approval under this section expires on the date that is specified in the approval, which shall not be more than three years after the approval was issued.

Same

(14) Despite subsection (13), an approval under this section that would allow an employee to work more than 60 hours in a week shall specify an expiry date that is not more than one year after the approval was issued.

Conditions

(15) The Director may impose conditions on an approval.

Revocation

(16) The Director may revoke an approval on giving the employer such notice as the Director considers reasonable in the circumstances.

Criteria

(17) In deciding whether to impose conditions on or to revoke an approval, the Director may take into consideration any factors that he or she considers relevant, including but not limited to any factor that the Director could consider under subsection (8).

Further applications

(18) For greater certainty, nothing in this section prevents an employer from applying for an approval after an earlier approval expires or is revoked or after an application is refused.

Refusal to approve

(19) If the Director decides that it is inappropriate to issue an approval to the employer, the Director shall give notice to the employer that the application for approval has been refused.

Notice to be posted

(20) An employer who receives notice from the Director that an application has been refused shall,

(a) remove the copy or copies of the application that were posted under subsection (6); and

(b) for the 60-day period following the date on which the notice was issued, post and keep posted the notice or a copy of it in at least one conspicuous place in every workplace of the employer where the employee or the class of employees in respect of whom the application applied works, so that it is likely to come to the attention of that employee or class of employees.

Termination of old approvals

(21) Any approval granted by the Director under a regulation made under paragraph 8 of subsection 141 (1), as that paragraph read on February 28, 2005, ceases to have effect on March 1, 2005.

Time for applications

(22) An application under subsection (1) may be made on or after the day the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 receives Royal Assent.

Non-application of s. 5 (2)

17.2 Despite subsection 5 (2), an employer shall not require or permit an employee to work more than the limit specified in clause 17 (1) (b), except in accordance with subsection 17 (3) or (4), even if one or more provisions in the employee’s employment contract that directly relate to limits on hours of work provide a greater benefit, within the meaning of subsection 5 (2), to an employee than is provided by section 17.

Delegation by Director

17.3 (1) The Director may authorize an individual employed in the Ministry to exercise a power or to perform a duty conferred on the Director under section 17.1, either orally or in writing.

Residual powers

(2) The Director may exercise a power conferred on the Director under section 17.1 even if he or she has delegated it to a person under subsection (1).

5. The Act is amended by adding the following section:

Director to prepare document

21.1 (1) The Director shall prepare and publish a document that describes such rights of employees and obligations of employers under this Part and Part VIII as the Director believes an employee should be made aware of in connection with an agreement referred to in subsection 17 (2) or clause 17 (3) (a).

If document not up to date

(2) If the Director believes that a document prepared under subsection (1) has become out of date, he or she shall prepare and publish a new document.

6. (1) Subsection 22 (2) of the Act, as re-enacted by the Statutes of Ontario, 2002, chapter 18, Schedule J, section 3, is repealed and the following substituted:

Averaging

(2) An employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of two or more consecutive weeks for the purpose of determining the employee’s entitlement, if any, to overtime pay if,

(a) the employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks;

(b) the employer has received an approval under section 22.1 that applies to the employee or a class of employees that includes the employee; and

(i) the number of weeks specified in the agreement, and

(ii) the number of weeks specified in the approval.

Same, pending approval

(2.1) Despite subsection (2), an employee’s hours of work may be averaged for the purpose of determining the employee’s entitlement, if any, to overtime pay even though the employer has not received the approval described in clause (2) (b), if,

(a) the employee has made an agreement described in clause (2) (a) with the employer;

(b) the employer has served on the Director an application for an approval under section 22.1;

(c) the application is for an approval that applies to the employee or to a class of employees that includes the employee;

(d) 30 days have passed since the application was served on the Director;

(e) the employer has not received a notice that the application has been refused;

(f) the employer’s most recent previous application, if any, for an approval under section 22.1 was not refused;

(g) the most recent approval, if any, received by the employer under section 22.1 was not revoked; and

(h) the employee’s hours of work, pending the approval, are averaged over separate, non-overlapping, contiguous periods of not more than two consecutive weeks.

Transition: certain agreements

(2.2) For the purposes of this section, each of the following agreements shall be treated as if it were an agreement described in clause (2) (a):

1. An agreement to average hours of work made under a predecessor to this Act.

2. An agreement to average hours of work made under this section as it read on February 28, 2005.

3. An agreement to average hours of work that complies with the conditions prescribed by the regulations made under paragraph 7 of subsection 141 (1) as it read on February 28, 2005.

(2) Section 22 of the Act, as amended by the Statutes of Ontario, 2001, chapter 9, Schedule I, section 1 and 2002, chapter 18, Schedule J, section 3, is amended by adding the following subsection:

Transition: application for approval before commencement

(5.1) If the employer applies for an approval under section 22.1 before March 1, 2005, the 30-day period referred to in clause (2.1) (d) shall be deemed to end on the later of,

(a) the last day of the 30-day period; and

(b) March 1, 2005.

7. The Act is amended by adding the following sections:

Averaging: application for approval

22.1 (1) An employer may apply to the Director for an approval permitting the employer to average an employee’s hours of work for the purpose of determining the employee’s entitlement, if any, to overtime pay.

Form

(2) The application shall be in a form provided by the Director.

Service of application

(3) The application shall be served on the Director,

(a) by being delivered to the Director’s office on a day and at a time when it is open;

(b) by being mailed to the Director’s office using a method of mail delivery that allows delivery to be verified; or

When service effective

(4) Service under subsection (3) shall be deemed to be effected,

(a) in the case of service under clause (3) (a), on the day shown on a receipt or acknowledgment provided to the employer by the Director or his or her representative;

(b) in the case of service under clause (3) (b), on the day shown in the verification;

(c) in the case of service under clause (3) (c), on the day on which the electronic or telephonic transmission is made, subject to subsection (5).

Same

(5) Service shall be deemed to be effected on the next day on which the Director’s office is not closed, if the electronic or telephonic transmission is made,

(a) on a day on which the Director’s office is closed; or

(b) after 5 p.m. on any day.

Criteria

(6) The Director may issue an approval to the employer if the Director is of the view that it would be appropriate to do so.

Same

(7) In deciding whether it is appropriate to issue the approval to the employer, the Director may take into consideration any factors that he or she considers relevant, and, without restricting the generality of the foregoing, he or she may consider,

(a) any current or past contraventions of this Act or the regulations on the part of the employer;

(b) the health and safety of employees; and

Employees to whom approval applies

(8) An approval applies to the employee or class of employees specified in the approval, and applies to every employee in a specified class whether or not the employee was employed by the employer at the time the approval was issued.

Same

(9) For greater certainty, all the employees of the employer may constitute a specified class.

Approval to be posted

(10) An employer to whom an approval is issued shall post the approval or a copy of the approval in at least one conspicuous place in every workplace of the employer where the employee or the class of employees in respect of whom the approval applies works, so that it is likely to come to the attention of that employee or class of employees.

Same

(11) The employer shall keep each approval or copy posted as set out in subsection (10) until the approval expires or is revoked, and shall then remove it.

Expiry

(12) An approval under this section expires on the date on which the averaging agreement between the employer and the employee expires, or on the earlier date that the Director specifies in the approval.

Conditions

(13) The Director may impose conditions on an approval.

Revocation

(14) The Director may revoke an approval on giving the employer such notice as the Director considers reasonable in the circumstances.

Criteria

(15) In deciding whether to impose conditions on or to revoke an approval, the Director may take into consideration any factors that he or she considers relevant, including but not limited to any factor that the Director could consider under subsection (7).

Further applications

(16) For greater certainty, nothing in this section prevents an employer from applying for an approval after an earlier approval expires or is revoked or after an application is refused.

Refusal to approve

(17) If the Director decides that it is inappropriate to issue an approval to the employer, the Director shall give notice to the employer that the application for approval has been refused.

Termination of old approvals

(18) Any approval of an averaging agreement that is granted by the Director under a regulation made under paragraph 7 of subsection 141 (1), as that paragraph read on February 28, 2005, ceases to have effect on March 1, 2005.

Time for applications

(19) An application under subsection (1) may be made on or after the day the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004 receives Royal Assent.

Delegation by Director

22.2 (1) The Director may authorize an individual employed in the Ministry to exercise a power or to perform a duty conferred on the Director under section 22.1, either orally or in writing.

Residual powers

(2) The Director may exercise a power conferred on the Director under section 22.1 even if he or she has delegated it to a person under subsection (1).

8. Subsection 50 (5) of the Act is amended by striking out “each year” and substituting “in each calendar year”.

9. The Act is amended by adding the following section:

Publication re convictions

138.1 (1) If a person, including an individual, is convicted of an offence under this Act, the Director may publish or otherwise make available to the general public the name of the person, a description of the offence, the date of the conviction and the person’s sentence.

Internet publication

(2) Authority to publish under subsection (1) includes authority to publish on the Internet.

Disclosure

(3) Any disclosure made under subsection (1) shall be deemed to be in compliance with clause 42 (e) of the Freedom of Information and Protection of Privacy Act.

10. (1) Paragraphs 6, 7 and 8 of subsection 141 (1) of the Act are repealed and the following substituted:

6. Defining an industry and prescribing for that industry one or more terms or conditions of employment that apply to employers and employees in the industry or one or more requirements or prohibitions that apply to employers and employees in the industry.

7. Providing that any term, condition, requirement or prohibition prescribed under paragraph 6 applies in place of or in addition to one or more provisions of this Act or the regulations.

8. Providing that a regulation made under paragraph 6 or 7 applies only in respect of workplaces in the defined industry that have characteristics specified in the regulation, including but not limited to characteristics related to location.

(2) Paragraph 9 of subsection 141 (1) of the Act is amended by striking out “subsection 17 (3)” and substituting “subsection 17 (6)”.

(3) Section 141 of the Act, as amended by the Statutes of Ontario, 2001, chapter 9, Schedule I, section 1, 2002, chapter 18, Schedule J, section 3 and 2004, chapter 15, section 5, is amended by adding the following subsection:

Regulations may be conditional

(5.1) A regulation made under this section may provide that it applies only if one or more conditions specified in it are met.

(4) Subsection 141 (6) of the Act is amended,

(a) by striking out “paragraph 6” and substituting “paragraphs 6 and 7”; and

(b) by striking out “that paragraph” and substituting “paragraph 6 or 7”.

(5) Subsection 141 (7) of the Act is repealed.

(6) Subsection 141 (10) of the Act is amended by striking out “the fact that the Director has approved the agreement does not prevent the employee from revoking, in accordance with subsection 17 (3)” and substituting “the fact that the Director has approved the agreement in accordance with a regulation made under paragraph 9 of subsection (1) does not prevent the employee from revoking, in accordance with subsection 17 (6)”.

Commencement

11. This Act comes into force on March 1, 2005.

Short title

12. The short title of this Act is the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004.

Français

Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, S.O. 2004, c. 21 - Bill 63

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