HR Advisor: Ontario MoL ” Reviewing Applications for Excess Hours and Overtime Averaging
On the heels of Bill 148 that received Royal Assent in Ontario on November 27, 2017 — though most changes come into effect January 1, 2019 — the Ministry of Labour (MoL) has released The Changing Workplaces Review.
This report includes 173 recommended changes to the Employment Standards Act, 2000 and Labour Relations Act, 1995, respectively — including one the MoL has signaled that it has already adopted by “more vigorously” reviewing applications from employers for excess hours and overtime averaging.
Per the ESA, employers are required to submit an Application for Approval of Excess Hours of for Averaging Hours of Work to the MoL when either of the following scenarios apply:
- An employee agrees to work in excess of 48 hours in a week.
- An employee agrees to have their overtime hours averaged over two or more weeks (overtime hours are those worked in excess of 44 hours in a week).
In either case, affected employees must certify their agreement in writing, and they must be provided with a copy of the MoL’s sheet Information for Employees About Hours of Work and Overtime Pay.
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What isn’t Changing
The obligation for employers to obtain employee approval and receive authorization from the MoL have been in place for several years. What’s more, the MoL is retaining the right to assess “any factors that may be relevant” in deciding whether to approve or deny an application.
What is Changing
As noted above, what is changing is the fact that the MoL’s Hours of Work Unit is paying closer attention to applications for excess hours and overtime averaging. And while the government has not explicitly stated that this is because it is receiving many dubious or ineligible applications, if this wasn’t indeed the case, then there would be no reason for the recommendation, adoption or announcement in the first place.
As such, going forward employers who submit an application for excess hours and/or overtime averaging are well advised to refresh their understanding of the MoL’s criteria for each category:
Applications for Excess Hours of Work
When evaluating applications for excess hours of work, the MoL looks at the following factors:
- If the employer clearly and successfully links the need for excess hours worked, with a core business requirement.
- If the employer has reasonably and in good faith attempted to get the necessary work done, without requiring employees to work in excess of 48 hours in a week.
- If the request for excess hours is an occasional exception, or it if will be the routine norm.
- If the employer is taking any steps to reduce or eliminate the likelihood that excess hours of work will be required in the future.
- If the request for excess hours might pose a health or safety risk to employees.
Applications for Overtime Averaging
When evaluating applications for overtime averaging, the MoL primarily evaluates if the employer demonstrates that the arrangement provides a clear benefit to affected employees (e.g. allows them to trade or exchange shifts within a preferable averaging period, etc.).
For both types of applications, the MoL also looks at factors that are specific to each petitioning employer. These include:
- Historical and current compliance with the ESA.
- Historical and current compliance with health and safety legislation.
- Whether the employer is responsive and forthcoming regarding any MoL requests for more information during the application process.
Employers who routinely or periodically submit applications to the MoL are urged — and cautioned — to ensure that their applications are robust, and that all of the proverbial i’s are dotted and t’s are crossed. Otherwise, they are very likely to have their applications delayed or rejected, regardless of how frequently, quickly or easily they received approval in the past.
For more information and expert guidance on preparing and submitting your organization’s applications for excess hours and/or overtime averaging, contact PIVOTAL at 1-855-407-3921.