Simon's Megalomaniacal Legal Resources

Employment Law (Ontario) Legal Guide
(01 January 2016)

Chapter 4 - Overtime and Hours of Work

1. Overview
   (a) Overview
   (b) Key Definitions
   . "Work"
   . Interpretation Issue Re "Work"
   . "Work Week"
   (c) Overtime Threshold and Rate
   (d) Hours of Work Legal Limit
   
2. Overtime Rules
   (a) Overtime Threshold
   (b) Greater-Benefit Contractual Terms Exception
   (c) Overtime Averaging Agreements Exception
   . Overview
   . Example
   . Application for Director Approval of Overtime Averaging Agreements
   . Director Criteria for Granting, Refusing and Revoking Overtime Averaging Agreements
   . Overtime Averaging Approval Terms and Conditions
   . Posting of Overtime Averaging Agreement Approvals
   . Interim Averaging "Approval" Pending Application Determination
   (d) Overtime Rate
   . Overview
   . Banking Overtime
   . "Expired" Banked Overtime
   . Banked Overtime at Termination
   (e) Exemptions from Overtime Provisions
   (f) Special Overtime Provisions
   . Overview
   . Road-Building
   . Seasonal Live-In Employees of Hotels, Motels, Restaurants, Tourist Resorts and Taverns
   . Seasonal Employees of Fruit or Vegetable Canners, Processors or Packers
   . Sewer and Watermain Construction
   . Local Cartage
   . Highway Transport
   
3. Hours of Work Limits
   (a) Overview
   (b) Maximum Hours Per Day
   (c) Maximum Hours Per Week
   (d) Hour-Extending Agreements (Both Daily and Weekly)
   . Overview
   . Agreement Formalities
   . Revocation of Hour Extending Agreement By Employee
   (e) Director Approval of Hour-Extending Agreements (Weekly Only)
   . Application
   . Posting of Applications, Approvals and Refusals
   . Criteria for Granting, Refusing and Revoking
   . Terms of Approvals
   . Allowable Maximum Pending Director Approval
   (f) Exemptions from the Hours of Work Limits
   (g) Required Off-Work Intervals (Days Free From Work)
   . Overview
   . Total Time Off Per Day
   . Time Off Between Shifts
   . Time Off Each Week or Two Weeks
   . Exemptions from the Required Off-Work Intervals
   (h) Emergency Exceptions To Hours of Work Limits and Required Off-Work Intervals
   (i) Eating Periods
   . Overview
   . Exemptions from Eating Period Provisions
   
4. Fully Exempt Categories
   (a) Note
   (b) Full Exemptions
   
5. Special Rules for Residential Care Workers
   (a) Overview
   (b) "Work" Definition Modified For Residential Care Workers

________________________________________

Important Note:
The Employment Standards Act (ESA) is riddled with many full and partial exemptions to it's provisions, as well as numerous 'special rules' for various industries or types of work. While I may note these variations throughout this Employment Law (Ontario) Guide when explaining individual topics generally, readers facing a specific fact situation should carefully review Ch.1 "Primary, ESA-Special and ESA-Exempt Employment Sectors" to determine if their specific employment situation is governed by any of these exemptions or special rules.

1. Overview

(a) Overview

"Overtime" of course involves the determination of, and increased payment for, hours worked over and above the "overtime" threshold. It is usually assessed on a weekly basis.

"Hours of Work Limits" - on the other hand - are legal maximums for hours of work in given periods (usually days and weeks) - regardless of any overtime pay paid.

Determining when the overtime threshold has been reached - and when hours of work limits are exceeded - can be a surprisingly complex task. Any fact situation must be assessed in light of first principles, including the following key definitions.

(b) Key Definitions

. "Work"

Key to understanding either of these issues of course is the concept of "work". Regardless of the common law meaning of the term "work", work shall be deemed to be performed for an employer for ESA purposes if either A or B following are satisfied, as appropriate to the circumstances [Reg 285/01, s.6(1)]:

A. When Labour Performed


• work is "permitted or suffered" to be done by the employer (ie. the employer knows and tolerates labour being done for them);
  
  or
  
  
• work is done despite "a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance".
  
  B. During Off Periods
  
  
• no labour is being done but the employee must remain at the workplace, and either
  
  
• is "waiting or holding himself or herself ready for call to work",
  
  or
  
  
• on a rest or break-time other than an eating period.

. Interpretation Issue re "Work"

The above passages [from Reg 285/01 s.6(1)] require a bit of mental gymnastics to apply, but ultimately make sense in defining "work". The situation gets a bit trickier when we proceed to read s.6(2) - which qualifies s.6(1) - and which provides that "work shall not be deemed to be performed during the time" when [Reg 285/01, s.6(2)]:

• the employee is entitled to time off for eating;
  
  
• the employee is entitled to "take at least six hours or such longer period as is established by contract, custom or practice for sleeping and the employer furnishes sleeping facilities",
  
  
• the employee is entitled to "take time off work in order to engage in the employee's own private affairs or pursuits as is established by contract, custom or practice";
  
  or
  
  
• the employee is not at the place of employment but "is waiting or holding himself or herself ready for call to work."

The wording regarding the first three of the above 'non-work' situations (ie. "entitled" to time off) appears to rule out such time as being work even if the employee actually works through it, which seems an odd result for a worker-protection law. Further, with respect to eating time at least, that interpretation appears to conflict with ESA s.21, which states that an eating period "in which work is not being performed" need not be paid time unless otherwise agreed between the parties [ESA s.21]. The implication of ESA s.21 is that work "being performed" in an eating period should be paid.

Balancing principles of statutory interpretation as best I can, I think that the above ambiguity can be resolved if we focus on the term "deem", and view s.6 in its entirety as supplementing the common law definition of work rather than replacing it. Under this interpretation, s.6(2)'s 'non-work' circumstances apply to prevent the 'deeming' of work in the listed circumstances, such as might otherwise occur for instance under the 'three-hour rule' deeming rule for minimum wage, explained in s.2(c), above. Under that rule a worker who shows up as scheduled but is sent home is "deemed" to have worked three hours. The s.6(2) circumstances then are exceptions to that rule, and any other similar ESA 'deeming' of work provisions.

Any other interpretation that I can see leaves us with an unnatural result, and a continued conflict between Reg 285/01, s.6 and ESA s.21.

. "Work Week"

Work is frequently assessed over a week-long period [ESA s.1, Definitions]:

"work week" means,

(a) a recurring period of seven consecutive days selected by the employer for the purpose of scheduling work, or

(b) if the employer has not selected such a period, a recurring period of seven consecutive days beginning on Sunday and ending on Saturday.

(c) Overtime Threshold and Rate

First note that the "overtime threshold" is not located at the point where the "regular work week" is exceeded.

With some important exceptions [see s.2 below], the overtime threshold is 44 hours per week. After the overtime threshold is reached the employee is entitled to an "overtime" hourly pay rate of 1.5 times the "regular" hourly rate - though it can be higher if the employment contract provides for a more beneficial rate to the employee [ESA s.1 "overtime hour"]. Similarly the overtime threshold may be contractually established other than by the ESA, if that determination provides a "greater benefit" to the employee.

(d) Hours of Work Legal Limit

The 'hours of work legal limit' is the maximum number of hours per day or week that the employee can work - regardless of regular versus overtime rate issues, but subject to any "hour-extending agreements" (which are explained below).

Violations of the "hours of work limits" may attract both prosecution and Notice of Contravention procedures against the employer [see Ch.9: "ESA Offences and Contraventions"].


2. Overtime Rules

(a) Overtime Threshold

As noted above, crossing the "overtime threshold" triggers an entitlement to a higher wage rate ("overtime pay").

While the ESA sets out a basic "overtime threshold" of 44 hours per week (at which point a minimum of 1.5 times the "regular rate" must be paid [ESA s.22(1)]), this simple threshold can be misleading in practical application. This is due to the existence of three significant exceptions (discussed in turn below):

• greater-benefit contractual terms,
  
  
• overtime averaging agreements, and
  
  
• industry-specific thresholds.

Note as well that hours worked on a public holiday [see Ch.3, s.3: "Wages, Holidays and Vacations: Public Holiday Entitlements"] paid at the premium (1.5x) rate do not count towards determining the overtime threshold [ESA s.31].

Further, for these purposes that an employer may establish a "work week" that varies from the normal Sunday-to-Saturday pattern. However where the employer fails to do this, the Sunday-to-Saturday work week applies [ESA s.1 "work week"].

(b) Greater-Benefit Contractual Terms Exception

Firstly note that the main 44 hours/week overtime threshold - as well as any other specific ESA-established overtime threshold - is only an ESA "minimum standard". As such, an employment contract may impose a legal overtime threshold of "greater benefit" to employees (ie. a lower "overtime threshold") [ESA s.1 "overtime hour"]. Where the contractual threshold provides a "greater benefit" to the employee, that more beneficial threshold will apply over the 44 hour/week minimum standard.

Note as well that since such "greater benefit" overtime hours (and any higher overtime hourly rates) are still "wages" under the ESA, then they can be enforced through ESA procedures.

(c) Overtime Averaging Agreements Exception

. Overview

An overtime threshold can also be effectively "increased" (thus resulting in less overtime pay) - by sometimes complicated "averaging agreements".

Recall how the overtime threshold of 44 hours is assessed on a weekly basis? Briefly, an overtime "averaging agreement" is an agreement with some or all employees to average total hours worked over more than one week (the averaging "period"), and then of course dividing them by that number of weeks [ESA s.22(2)]. This allows the employer to reduce overtime hours in one week by shifting excess hours from a 'heavy' week into a 'light' week.

To be legal, overtime averaging agreements require both an "agreement" with the involved employee/s and approval from the Employment Standards Director (though in limited circumstances they may be legal during periods that an approval application is pending with the Director) [see "Interim Averaging Approval Pending Application Determination", below].

. Example

For example, take the situation where the agreed averaging "period" is three weeks and the hours worked were:

Week 1 ......... 40 hours
Week 2 ......... 49 hours
Week 3 ......... 40 hours

Without "averaging" the employee would have worked five overtime hours in Week 2 (49 minus 44), giving them an additional 2.5 hours pay (5 x 0.5 overtime increase). However when three-week averaging is applied the "average" is 43 hours per week, all under the overtime threshold - so no overtime pay is due.

. Application for Director Approval of Overtime Averaging Agreements

Applications for Director approval of averaging agreements may made by employers to the Director, using the Director-approved form [ESA s.22.1(1,2)]:

Hours of Work and Averaging Hours Application Form

The application may be delivered to the Director at their office by any of the following methods, and such delivery is considered effective on the date noted [ESA s.22.1(3,4,5)]:

• direct delivery while the office is open (effective on the date of written acknowledgement provided by the Director's staff);
  
  
• verifiable mail (effective on date of verification);
  
  
• fax (effective the date of the fax - except that where the fax is made after 5pm on a date that the office was open, delivery is effective the next open day).

An employer may re-apply anytime after expiration, refusal or revocation (as below) of such an approval [ESA s.22.1(16)].

. Director Criteria for Granting, Refusing and Revoking Overtime Averaging Agreements

The Director (or their appointed employee: ESA s.22.2) has broad discretion (ie. "if ... of the view that it would be appropriate to do so") in deciding whether to grant (and if so, on what conditions) or (on reasonable notice to the employer) revoke an approval. In so doing however they "may" take into consideration "any factors that he or she considers relevant", including but not limited to the following (ie. these are suggestions only) [ESA s.22.1 6,7,13,14,15)]:

• any current or past contraventions of this Act or the regulations on the part of the employer;
  
  
• the health and safety of employees; and
  
  
• any prescribed factors (none yet mentioned in Regulations).
  
  Note:
  This is a very broad delegation of discretion to the Director, and is likely to be subject to a standard of court review that is deferential to the Director.

The Director may refuse, on notice to the employer/applicant, to issue an approval [ESA s.22.1(17)].

. Overtime Averaging Approval Terms and Conditions

"Approvals" for averaging agreements are made specific to an "employee or a class of employees" (including future hires), though the class can also include all of the employer's employees [ESA s.22.1(8.9)].

Director "approvals" may not be effective for a period longer than that agreed to between employer and employees in the "averaging agreement", although they can specify a shorter period [ESA s.22(2), 22.1(12)].

"Averaging agreements" (except where the employee is represented by a trade union) cannot have a term of more than two years [ESA s.22(3)], though they may be renewed (on the same terms) or replaced (on new legal terms) by agreement of the parties [ESA s.22(3)]. As well, they are irrevocable before their expiry date except with consent of both the employer and the effected employee/s [ESA s.22(6)].

. Posting of Overtime Averaging Agreement Approvals

Approvals of overtime averaging agreements (or copies thereof) must be posted "conspicuously" - during the period of the approval (and no longer) - in at least one location in every workplace where the effected class of employees works, "so that it is likely to come to" their attention [ESA s.22.1(10,11)].

. Interim Averaging "Approval" Pending Application Determination

Despite a Director's approval not yet having been issued, employers may "interim" average (using a two-week averaging "period") during the time it takes to resolve an application - if the employer's application is still pending 30 or more days after being made. However, if the employer has made any previous such applications, interim averaging is only allowable if the most recent previous application has not been refused, or any resulting approval since revoked [ESA s.22(2.1)].

(d) Overtime Rate

. Overview

As noted above, the minimum overtime hourly wage "rate" which the employer is obliged to pay the employee is 1.5 times the regular hourly wage rate [ESA s.22(1)] (though it can be more if the employment contract requires it).

. Banking Overtime

However, if the parties (ie. employer and employer) agree, the employee may be alternatively compensated for overtime by receiving paid 'time off in lieu' in the amount of the overtime pay entitlement (ie. at 1.5 times). If no time frame is agreed by which such an entitlement must be taken, then it must be taken within three months. However, by further agreement, the three months may be extended to 12 months [ESA s.22(7)].

Such accumulation of overtime entitlement - especially for periods of more than three months - is referred to as "banking overtime". It is typically done to add to vacation time.

. "Expired" Banked Overtime

Both the legislation and the Ministry's website material are ambiguous on the possibility of overtime entitlement forfeiture if the employee does not take their "time off in lieu" within the three (or 12) month periods mentioned above.

In my opinion the best legal position (I have located no case law on the issue), is that the expiry of these timelines triggers a duty on the employer to pay out the overtime entitlement in wages at that time.

I reach this conclusion based on the wording of ESA s.22(7), which is structured as an exception ("instead of overtime pay if") to the plain s.22(1) ("an employer shall pay") duty to pay-out overtime. Where "time off in lieu" is not taken 'in time' then the terms of the s.22(7) exception are not met, and the primary s.22(1) duty to pay the overtime in wage form re-asserts itself. This conclusion is consistent with equity, as otherwise an unjust enrichment would result.

. Banked Overtime at Termination

Similarly, if overtime is still "banked" at the time that employment terminates, then "time off in lieu" obviously cannot be taken and the employee's entitlement to actual overtime pay applies [ESA s.22(8)], in accordance with the normal rules governing wage payment on termination [see Ch.3: "Wages, Holidays and Vacations: Wage Payment and Records"].

(e) Exemptions from Overtime Provisions

The following employees and employment are entirely exempt from the overtime provisions discussed in this section (ie. s.2: "Overtime Rules") [Reg 285/01, s.8]:

• firefighters (as defined in section 1 of the Fire Protection and Prevention Act, 1997);
  
  
• supervisors and managers;
  
  "person(s) whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis";
  
  
• fishing or hunting guides;
  
  
• landscape gardeners;
  
  
• installation and maintenance of swimming pools;
  
  
• the growing of mushrooms,
  
  
• the growing of flowers for the retail and wholesale trade,
  
  
• the growing, transporting and laying of sod,
  
  
• the growing of trees and shrubs for the retail and wholesale trade,
  
  
• the breeding and boarding of horses on a farm, and
  
  
• "the keeping of furbearing mammals, as defined in the Fish and Wildlife Conservation Act, 1997, for propagation or the production of pelts for commercial purposes;"
  
  
• students who instruct or supervise children;
  
  
• students at a camp for children;
  
  
• students in a charitable recreational program;
  
  
• live-in superintendents, janitors and caretakers of residential buildings;
  
  
• taxi cab drivers (a "taxi cab" includes a vehicle for hire with seating accomodation for nine or fewer persons) [Reg 285/01, s.1]);
  
  
• ambulance drivers, ambulance driver's helpers and first-aid attendants on an ambulance; and
  
  
• an information technology professional.
  
  "Information technology professional" means an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment [Reg 285/01, s.1].

These categories of employee or employment are further discussed or defined in Ch.1: "Coverage of Employment Law".

More categories of exemptions to these provisions are listed in s.4: "Fully Exempt Categories", below.

If an employee is performing work, part of which is exempt from ESA overtime law, and another part which is not, then the overtime law will apply to all of the hours worked as long as the overtime-covered hours are greater than the exempt hours [ESA s.22(9)] (ie. as long as most of the total hours worked are covered).

(f) Special Overtime Provisions

. Overview

Below are categories of employment to which special overtime treatments apply - in particular different overtime thresholds.

Note that if an employee is performing work, part of which is subject a special overtime threshold or treatment under the ESA, and another part which is subject to the basic overtime threshold [44 hours] and treatment, then the basic overtime law will apply to all of the hours worked as long as the overtime-covered hours are greater than the exempt or special-treatment hours [ESA s.22(9)]. Otherwise, presumably (the ESA is silent in this case) - the special rules will apply.

. Road-Building

"Road building" is defined as [Reg 285/01, s.1]:

... the preparation, construction, reconstruction, repair, alteration, remodelling, renovation, demolition, finishing and maintenance of streets, highways or parking lots, including structures such as bridges, tunnels or retaining walls in connection with streets or highways, and all foundations, installation of equipment, appurtenances and work incidental thereto;

Road building "in relation to streets, highways or parking lots" is subject to special overtime threshold provisions, as follows [Reg 285/01, s.13(1)]:

• the overtime threshold is 55 hours per work week,
  
  Although if the employee works less than 55 hours in the previous week, the difference between those hours worked and 55 (to a maximum of 22) may be added to the present week's overtime threshold.
  
  For example, if 40 hours are worked in Week 1, the overtime threshold for Week 2 is [55 + (55-40)] = 70 hours.
  
  
• the overtime rate is 1.5 times the regular rate.

Road building "in relation to structures such as bridges, tunnels or retaining walls in connection with streets or highways" is subject to special overtime threshold provisions, as follows [Reg 285/01, s.13(2)]:

• the overtime threshold is 50 hours per work week,
  
  Although if the employee works less than 50 hours in the previous week, the difference between those hours worked and 50 (to a maximum of 22) may be added to the present week's overtime threshold.
  
  eg.
  Week 1 - 40 hours worked
  Week 2 - Overtime threshold is 50 + (50-40) = 60 hours
  
  
• the overtime rate is 1.5 times the regular rate.

. Seasonal Live-In Employees of Hotels, Motels, Restaurants, Tourist Resorts and Taverns

The overtime threshold for "hotel, motel, tourist resort, restaurant or tavern" employees who work on a part-year basis (24 weeks or less per calendar year) and who receive room and board from the employer is 50 hours per week. Their minimum overtime rate is 1.5 times their regular rate [Reg 285/01, s.14].

"Hotel, motel, tourist resort, restaurant and tavern" means an establishment that provides accommodation, lodging, meals or beverages for payment, and includes tourist homes, tourist camps, tourist cabins and cottages, tourist inns, catering establishments and all other establishments of a similar nature [Reg 285/01, s.1].

. Seasonal Employees of Fruit or Vegetable Canners, Processors or Packers

The overtime threshold of seasonal (16 weeks or less per calendar year) employees of fruit or vegetable canners, processors or packers is 50 hours per week. Their minimum overtime rate is 1.5 times their regular rate [Reg 285/01, s.15].

. Sewer and Watermain Construction

The overtime threshold for employees "laying, altering, repairing or maintaining sewers and watermain and in work incidental thereto, or in guarding the site during the laying, altering, repairing or maintaining of sewers and watermain" is 50 hours per week. Their minimum overtime rate is 1.5 times their regular rate [Reg 285/01, s.16].

. Local Cartage

The overtime threshold for local cartage vehicle drivers and drivers' helpers is 50 hours per week. Their minimum overtime rate is 1.5 times their regular rate.

For these purposes "local cartage" means "the business of carrying goods for hire within a municipality or to any point not more than five kilometres beyond the municipality's limits" [Reg 285/01, s.17].

. Highway Transport

The overtime threshold for highway transport employees is 60 hours per week, but only counting time during which the employee "is directly responsible for the truck". Their minimum overtime rate is 1.5 times their regular rate [Reg 285/01, s.18(1)].

"Highway transport" for these purposes excludes "local cartage" (as above), but includes drivers of any of the following trucks [Reg 285/01, s.18(2-4)]:

• a truck whose operator held an operating licence under the [now repealed] Truck Transportation Act on December 31, 2005;
  
  
• a truck whose operator held a certificate of intercorporate exemption under the Truck Transportation Act on December 31, 2005, if after that date the truck is operated to carry, for compensation, goods of another person who is not an affiliated corporation under the former Act, such that the operator would be required to hold an operating licence under the former Act if it were still in force [excepting s.3(6) of that Act],
  
  or
  
  
• a truck that is operated to carry goods of another person for compensation, if the operator,
  
  - did not hold an operating licence or a certificate of intercorporate exemption under the Truck Transportation Act on December 31, 2005, and
  
  - would be required to hold an operating licence under the Truck Transportation Act if it were still in force [excepting s.3(5) and (6) of that Act].

3. Hours of Work Limits

(a) Overview

This section deals with total legal limits on the hours that may be worked per day or week. It is separate from any considerations of overtime thresholds or overtime pay rates. Working more than these 'hours of work' limits - without legitimate legal excuse - is prohibited. Violation of "hours of work" limits invites not only potential compensation claims for unpaid wages, but also prosecution and Notice of Contravention proceedings against the employer [see Ch.9: "ESA Offences and Contraventions"].

Like overtime - which can be the subject of "overtime averaging agreements" to reduce the amount of overtime payable - assessment of daily and weekly hour limits may be the subject of "hour-extending agreements", which effectively extend the limits in particular cases.

"Hours of Work Limits" are also subject to exceptions for "emergencies" [see (h)below].

(b) Maximum Hours Per Day

Subject to any "hour-extending agreements" made with employees [see (d) below], the maximum hours of work that an employer may "require or permit" an employee to work in a day is the greater of [ESA s.17(1)(a),(2)]:

• eight, or
  
  
• the number established between the parties as the employee's "regular work day".
  
  A "regular work day" is not the same as the 'average' number of hours worked daily assessed over previous periods of employment - the concept is more akin to the 'standard' number of hours worked daily [ESA s.1 "regular work day"]. For example, for many full-time employees the "regular work day" is the classic 9am-to-5pm day. The term "regular work week" has a corresponding meaning.
  
  This "regular work day" provision has the potential to legitimize long daily hour limits, although it is constrained in part by the 11-hours "time off per day" requirement [see (g) Required Off-Work Intervals, below].

This daily "limit" (such as it is) may be further excepted where the employer and class of employees have a pre-existing arrangement (written, oral or implied) made on hiring and before 04 September 2001 - and for which a permit was issued under [then] s.18 of the ESA - whereby the employee may work shifts of up to 10 hours [Reg 285/01, s.32.1].

(c) Maximum Hours Per Week

Subject to any "hour-extending agreements" with the employees - and subject to Director approval of such agreements [for both see (d) below], the maximum hours of work that an employer may "require or permit" an employee to work in a week is 48 [ESA s.17(1)(b),(3)].

For purposes of interpreting this provision - and again assuming no "hour-extending agreement" provisions are operating to the contrary (see below) - any employment contract which, in aggregate, improves on ESA minimum standards regarding "hours of work limits", still contravenes the ESA if it requires an employee to work more than 48 hours a week [ESA s.17(2)].

(d) Hour-Extending Agreements (Both Daily and Weekly)

. Overview

"Hour-extending agreements" may, as set out below, extend the daily and weekly hours of work limits otherwise established by ESA law.

. Agreement Formalities

As a common sense precaution, any such employer-employee "agreements" should be executed in written form. This is particularly the case for weekly "hour-extending agreements", which must be approved by the ES Director.

Agreements made respecting daily limits must specify the excess hours agreed to [ESA s.17(2)]. Exceeding the agreed-to limit may void the legitimacy of the entire agreement, rendering any hours worked over 48 as in violation of the ESA.

Where the hour-extending agreement applies to extend weekly (but not daily) limits, it must also be approved by the Director [with one exception, see "Allowable Maximum Pending Director Approval", below] before it is legally legitimate.

In either case (daily or weekly hour-extending agreements), the agreements are not valid unless the employee has been provided - by the employer - with the most recent version of the Director-approved Information Sheet for Employees About Hours of Work and Overtime Pay.

Further, the agreement must contain a statement of the employee confirming receipt of this document [ESA s.17(5), 21.1]. This provision does not apply for employees represented by a trade union [ESA s.17(9)].

. Revocation of Hour Extending Agreement By Employee

An employee may revoke an hour-extending agreement on two weeks notice to that effect to the employer, and the employer may revoke it on "reasonable" notice to the employee [ESA s.17(6,7)].

However an hour-extending agreement made at the time of commencement of the employment, and that has been approved by the Director (as required for weekly hour-extending agreements) may only be revoked on consent of both parties [Reg 285/01, s.32].

(e) Director Approval of Hour-Extending Agreements (Weekly Only)

. Application

Applications for Director approval of hour-extending agreements regarding the 48-hour weekly maximum, and regarding either some or all of their employees, may made by employers to the Director, using the Director-approved form [ESA s.17.1(1,2,10)]:

Hours of Work and Averaging Hours Application Form
The application may be delivered to the Director at their office by any of the following methods, effective on the date noted [ESA s.17.1(3,4,5)]:

• direct delivery while the office is open (effective on the date of written acknowledgement provided by the Director's staff);
  
  
• verifiable mail (effective on date of verification);
  
  
• fax (effective the date of the fax - except that where the fax is made after 5pm on a date that the office was open, delivery is effective the next open day)

An employer may re-apply anytime after expiration, refusal or revocation of an approval [ESA s.17.1(18)] - although re-applying after a refusal or revocation without any changed circumstances or evidence is probably a waste of everybody's time.

. Posting of Applications, Approvals and Refusals

Originals or copies of pending applications for, or approvals and refusals of, weekly hour-extending agreements must be posted by the employer conspicuously in at least one location in every workplace where the effected class of employees works, "so that it is likely to come to" their attention [ESA s.17.1(6,7,20)].

A pending application shall be so posted from the time it is made until the time it is resolved, after which it shall be removed. If granted, the approval shall be posted for its term, after which it shall be removed. If refused, the refusal shall be posted for 60 days thereafter [ESA s.17.1(11,12,20)].

. Criteria for Granting, Refusing and Revoking

The Director (or their appointed employee: ESA s.17.3) has broad discretion as to whether to grant an approval - and if so, on what conditions. Similarly, they may also - on reasonable notice to the employer - revoke an approval. In exercising such authorities they may take into consideration "any factors that he or she considers relevant", including but not limited to, the following (ie. these are suggestions only) [ESA s.17.1(7,8,15,16,17)]:

• any current or past ontraventions of this Act or the regulations on the part of the employer;
  
  
• the health and safety of employees; and
  
  
• any prescribed factors [ie. more may be added in the Regulations, none are yet].

This is a very broad delegation of discretion to the Director, and is likely to be subject to a very deferential review standard by a court (ie. lenient to the Director).

The Director must notify the employer/applicant any decision to refuse to issue an approval [ESA s.17.1(19)].

. Terms of Approvals

"Approvals" for hours-extending agreements are made specific to an "employee or a class of employees" (including future hires), though the class can also include all of the employer's employees [ESA s.17.1(8,9)].

Most "approvals" may have a term of not more than three years [ESA s.17.1(13)], although if an hour-extending agreement extends hours beyond 60 per week it cannot have a term longer than a year [ESA s.17.1(14)].

. Allowable Maximum Pending Director Approval

Exceeding the 48-hour weekly limit is legal during the time it takes to resolve an approval application if all of the following apply [ESA s.17(4)]:

• an agreement allowing such has been made with the employees;
  
  
• the employer has posted a copy of the application as required (see above posting of applications);
  
  
• the employer's application is still pending 30 or more days after being made; and
  
  
• if the employer has made any previous such applications, the most recent of them has not been refused, or any resulting approval since revoked.

Such 'pending approval' shall only tolerate an hourly maximum limit which is the lesser of the following:

• the number of hours specified in the application,
  
  
• the number of hours specified in the agreement, or
  
  
• 60 hours.

(f) Exemptions from the Hours of Work Limits

The following employees and employment are exempt from the daily and weekly hours of work limits' (and thus of course from the need for any "hour-extending agreement" provisions) set out in (b) to (e) above] [Reg 285/01, s.4(1-3)]:

• firefighters (as defined in s.1 of the Fire Protection and Prevention Act, 1997);
  
  
• supervisors and managers;
  
  "person(s) whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis";
  
  
• fishing or hunting guides;
  
  
• construction employees;
  
  "Construction" for these purposes means "constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site" [Reg 285/01, s.1].
  
  
• live-in superintendents, janitors or caretaker of residential buildings;
  
  
• embalmers or funeral directors;
  
  
• landscape gardeners;
  
  
• swimming pool installers;
  
  
• growing of mushrooms;
  
  
• flowers for the retail and wholesale trade;
  
  
• growing, transporting and laying of sod;
  
  
• growing of trees and shrubs for the wholesale and retail trade;
  
  
• breeding and boarding of horses on a farm;
  
  
• the keeping of furbearing mammals, as defined in the Fish and Wildlife Conservation Act, 1997, for propagation or the production of pelts for commercial purposes;
  
  
• information technology professional;
  
  "Information technology professional" means an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment [Reg 285/01, s.1].
  
  
• recorded visual and audio-visual entertainment production industry;
  
  "Recorded visual and audio-visual entertainment production industry" includes recorded entertainment that is intended to be replayed in cinemas or on the Internet, as part of a television broadcast, or on a VCR or DVD player or a similar device, but does not include commercials (other than trailers), video games or educational material [Reg 285/01, s.1].

More categories of exemptions to these provisions are listed in s.4: "Fully Exempt Categories", below.

(g) Required Off-Work Intervals (Days Free From Work)

. Overview

Despite any agreed hour-extending agreements (see above) - but subject to "emergency exceptions" [see (h) below], employees are entitled to certain intervals off work for eating and rest.

. Total Time Off Per Day

Employees are entitled to at least 11 consecutive hours of rest in each day [ESA s.18(1)], except for periods where the employee is "on-call" and then is called in to work outside of their regularly scheduled work times [ESA s.18(2)].

. Time Off Between Shifts

Employees are entitled to eight hours off between shifts, except where they agree otherwise or where the total time worked in the two shifts is 13 hours or less [ESA s.18(3)].

. Time Off Each Week or Two Weeks

Employees are entitled to 24 consecutive hours off work every week, or -alternatively - 48 consecutive hours off work every two weeks [ESA s.18(4)].

. Exemptions from the Required Off-Work Intervals

The following employees and employment are exempt from the required off-work interval provisions [Reg 285/01, s.4(1,3)]:

• firefighters (as defined in s.1 of the Fire Protection and Prevention Act, 1997);
  
  
• supervisors and managers;
  
  "person(s) whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis";
  
  
• fishing or hunting guides;
  
  
• construction employees;
  
  "Construction" for these purposes means "constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site" [Reg 285/01, s.1].
  
  
• live-in superintendents, janitors or caretaker of residential buildings;
  
  
• embalmers or funeral directors;
  
  
• growing of mushrooms;
  
  
• flowers for the retail and wholesale trade;
  
  
• growing, transporting and laying of sod;
  
  
• growing of trees and shrubs for the wholesale and retail trade;
  
  
• breeding and boarding of horses on a farm;
  
  
• the keeping of furbearing mammals, as defined in the Fish and Wildlife Conservation Act, 1997, for propagation or the production of pelts for commercial purposes;
  
  
• information technology professional;
  
  "Information technology professional" means an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment [Reg 285/01, s.1].
  
  
• recorded visual and audio-visual entertainment production industry;
  
  "Recorded visual and audio-visual entertainment production industry" includes recorded entertainment that is intended to be replayed in cinemas or on the Internet, as part of a television broadcast, or on a VCR or DVD player or a similar device, but does not include commercials (other than trailers), video games or educational material [Reg 285/01, s.1].

More categories of exemptions to these provisions are listed in s.4: "Fully Exempt Categories", below.

(h) Emergency Exceptions To Hours of Work Limits and Required Off-Work Intervals

The day and weekly hours of work maximums [see (b-e) above] and "required off-work intervals" [see (g) above] rules may also be excepted "so far as is necessary to avoid serious interference with the ordinary working of the employer's establishment or operations", for the following reasons [ESA s.19]:

• to deal with an emergency,
  
  
• if something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services,
  
  
• if something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted, or
  
  
• to carry out urgent repair work to the employer's plant or equipment.

(i) Eating Periods

. Overview

Employees may not work for more than five consecutive hours without a 30 minute eating period [ESA s.20(1)], although the parties may agree (verbally or in writing) - to substitute for this two eating periods totalling 30 minutes within each consecutive five hour period [ESA s.20].

An eating period "in which work is not being performed" need not be paid time unless otherwise agreed between the parties [ESA s.21].

Note:
Section 21 implies that work "being performed" in an eating period should be paid. However, s.6(2) of Reg 285/01 reads in part that: "(w)ork shall not be deemed to be performed for an employer during the time the employee, ... is entitled to, ... take time off work for an eating period ...". Section 6(2) seems to want to bar compensation for any 'eating time work' at all, a plainly unjust result. See the discussion above [s.1(b): Interpretation Issue re "Work"], where I conclude that worked eating period time is normally compensable.

. Exemptions from Eating Period Provisions

The following employees and employment are exempt from the above eating period provisions [Reg 285/01, s.4(3)]:

• growing of mushrooms,
  
  
• flowers for the retail and wholesale trade,
  
  
• growing, transporting and laying of sod,
  
  
• growing of trees and shrubs for the wholesale and retail trade,
  
  
• breeding and boarding of horses on a farm, and
  
  
• the keeping of furbearing mammals, as defined in the Fish and Wildlife Conservation Act, 1997, for propagation or the production of pelts for commercial purposes;
  
  
• information technology professional; or
  
  "Information technology professional" means an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment [Reg 285/01, s.1].
  
  
• recorded visual and audio-visual entertainment production industry.
  
  "Recorded visual and audio-visual entertainment production industry" includes recorded entertainment that is intended to be replayed in cinemas or on the Internet, as part of a television broadcast, or on a VCR or DVD player or a similar device, but does not include commercials (other than trailers), video games or educational material [Reg 285/01, s.1].

More categories of exemptions to these provisions are listed in s.4: "Fully Exempt Categories", immediately below.


4. Fully Exempt Categories +++

(a) Note

This section lists employment and employees who are fully exempt from all of the ESA provisions covered in this chapter, being: overtime provisions, hours of work limits, off-work intervals and eating periods.

However some categories of employment and employees may be exempt from only some of those listed provisions, or be subject to their own special rules on the topic. These partial exemptions and special treatments are noted in the discussions of those various topics above. Readers considering the application of any particular ESA topic discussed in this chapter to their fact situation should therefore review both this section, and the specific section involved, carefully.

(b) Full Exemptions

The following categories of employment and employees are exempt from all of the ESA provisions covered in this chapter, being: overtime provisions, hours of work limits, required off-work intervals, eating periods [Reg 285/01, s.2]:

• duly qualified practitioners of architecture, law, professional engineering, public accounting, surveying and veterinary science - and students in training for any of them;
  
  
• duly registered practitioners of chiropody, chiropractic, dentistry, massage therapy, medicine, optometry, pharmacy, physiotherapy, and psychology and those under the Drugless Practitioners Act - and students in training for any of them;
  
  
• teachers (as defined in the Teaching Profession Act) and student teachers;
  
  
• commercial fishing;
  
  
• salespersons and brokers (as defined in the Real Estate and Business Brokers Act, 2002);
  
  
• travelling salespersons on commission - other than route salepersons.
  
  
• farm employees "whose employment is directly related to the primary production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish." [Reg 285/01, s.2(2)].
  
  
• "homemakers" whose minimum wage entitlement is limited to 12 hours per day - even if they work longer than that [see Ch.3, s.2(g)].
  
  For these purposes a "homemaker" (do not confuse with "homeworker") is someone hired through an agency or a third party "to perform homemaking services for a householder or member of a household in the householder's private residence". The definition does not include someone hired by the householder directly to perform the same work [Reg 285/01, s.11].

5. Special Rules for Residential Care Workers

(a) Overview

A "residential care worker" is someone "employed to supervise and care for children or developmentally handicapped persons in a family-type residential dwelling or cottage and who resides in the dwelling or cottage during work periods, but does not include a foster parent" [Reg 285/01, s.1 Definitions]. Commonly these are sleep-over positions for night-time supervision of group homes.

Residential care workers are exempt from the normal 'hours of work limit' and overtime provisions [Reg 285/01, s.23], but are subject to special alternate 'hours of work limits' and overtime rules, as set out here [Reg 285/01, s.21]:

• residential care workers are entitled to 36 hours off every week, to be consecutive unless the worker consents otherwise;
  
  
• if the employer requests the employee to work during this time off, and the employee consents, then the employee is entitled to additional equivalent time off allocated sometime over the following 8 weeks, and to 1.5 times their regular rate for that time worked.

(b) "Work" Definition Modified For Residential Care Workers

Note that residential care workers are subject to their own special definition of "work", which excludes time spent [Reg 285/01, s.22]:

• at the dwelling or cottage, either attending to private affairs or pursuits, resting, sleeping or eating, and
  
  
• with the agreement of the employer, free from the performance of any duties.

For comparison, the "regular" definition of "work" is set out at s.1(b): "Overview: Key Definitions", above.