Applications for Approval of Excess Hours or for Averaging Hours of Work

Hours in Excess of the Daily or Weekly Limits in the Employment Standards Act (ESA)

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Daily Limits

Generally, employees cannot be required or allowed to work more than 8 hours in a day (or the number of hours in their regular work day if that is longer than 8 hours) unless they or their union have agreed in writing that they will work up to a specified number of additional hours in a day.  (The approval of the Director of Employment Standards is not required if the weekly limit of 48 hours is not exceeded.)

Weekly Limits

Generally, employees cannot be required or allowed to work more than 48 hours in a work week unless:

• in the case of a non-union employee, the employee and the employer have agreed in writing that the employee will work up to a specified number of additional hours in the week and the employee was given the Ministry of Labour Information Sheet entitled Information for Employees About Hours of Work and Overtime Pay before the agreement was made;
• in the case of employees represented by a union, the union and the employer have agreed in writing that the employees will work up to a specified number of additional hours;

AND approval for the employee or employees to work the excess hours has been given by the Director of Employment Standards. (This applies for both union and non-union employees.)

To apply for an approval for excess hours, the employer must complete an Hours of Work and Averaging Hours Application Form.

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Averaging of Hours of Work for Overtime Pay Purposes

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Most employees must be paid overtime pay of at least 1½ times the employee’s regular rate of pay for each hour worked after 44 hours in a work week. As a general matter, when calculating overtime pay, an employee’s hours of work cannot be averaged over two or more weeks unless:

• in the case of a non-union employee, the employee and the employer have agreed in writing that the employee’s hours of work will be averaged over a specified number of weeks;
• in the case of employees represented by a union, the union and the employer have agreed in writing that employees’ hours of work will be averaged over a specified number of weeks;

AND approval for the employee’s or employees’ hours of work to be averaged has been given by the ministry’s Director of Employment Standards (this applies for both union and non-union employees).

To apply for an approval for averaging of hours, the employer must complete an Hours of Work and Averaging Hours Application Form.

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What Must a Written Agreement with respect to Excess Hours or Averaging say?

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Agreements between an Employer and Union:

Excess Hours:

A written agreement between an employer and a union must indicate that the union agrees that union employees will work up to a specified number of hours in excess of the general limit of 48 hours in a work week. (For example, the agreement could say that the union agrees that employees will work up to 60 hours each week.)

Averaging:

A written agreement between an employer and a union must indicate that the union agrees that union employees’ hours of work may be averaged over a specified number of weeks for purposes of calculating overtime pay. The agreement must provide an expiry date.

Agreements between an Employer and a Non-union Employee:

Excess Hours:

A written agreement between an employer and a non-union employee must say:

• that the employee has received from the employer a copy of the most recently published Information Sheet put out by the Director of Employment Standards; and
• that the employee agrees to work up to a specified number of hours in excess of the general limit of 48 hours in a work week. (For example, the agreement could say that the employee will work up to 60 hours each week.)

The Information Sheet must be provided to the employee before the agreement is made. (Note: the Information Sheet must not be changed in any way. If the Information Sheet is changed, the agreement is invalid and the employee cannot be required or allowed to work any hours in excess of the limit of 48 hours in a work week.)

An employee can cancel an agreement to work excess hours by giving 2 weeks’ notice to the employer. The employer can cancel the agreement by giving reasonable notice to the employee.

Averaging Hours:

A written agreement between an employer and a non-union employee must say that the employee agrees to have his or her hours of work averaged over a specified number of weeks for the purpose of determining his or her entitlement to overtime pay. The agreement must contain an expiry date, which must be no more than 2 years from the day the agreement takes effect.

It should be noted that an agreement to average hours cannot be cancelled before its expiry date unless both employer and employee agree.

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What types of occupational groups may be listed?

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It should be kept in mind that the general rule is that employees cannot work more than 48 hours in a work week and that Approval to work more hours is an exceptional matter. It is easier to make the case for getting an Approval if you limit your application so as to cover only those employees that really need to work excess hours. We suggest, therefore, that you describe the occupational groups that you want the Approval to apply to very specifically. For example, if you have employees in a number of different types of jobs, but you only really need your machinists to work excess hours, your application should indicate that you are seeking approval only for your machinist employees, rather than indicating something broad or vague such as “all employees” or “hourly employees” or “full-time employees”. (This same suggestion also applies to applications for Approval to average hours for overtime pay purposes.)

Certain occupational groups are exempt from part or all of the Hours of Work and Overtime legislation and as a result, approvals for excess hours and/or averaging may not be necessary for those employees. For more information please visit the Special Rule Tool.

What if the Employer has Multiple Locations?

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When completing the application form if an employer has more than one location, employers should note the following:

• Only one application should be submitted.
• List your head office as the “Employer Main Business Address” under Part 2 of the application.  Completion of Part 3 of the application “Additional Locations Where Work will be Performed” is not necessary. 
• List each occupational group for which you are seeking approval only once on the application.  If you have more than one location where employees in a specific occupational group are working simply indicate the total number of employees working in the occupational group across all locations under “Number of Employees” under section five of the application. 
• If an approval is granted, a copy of the approval must be posted in each location where employees who are covered by the approval work.

For example: 
An employer runs a bakery.  The employer has a total of 12 locations in Ontario. The employer’s main office in Toronto employs 4 data entry clerks, 2 receptionists, 15 bakers, 6 cashiers, and 4 managers.  At each of the 11 other locations, 5 bakers, 2 managers and 3 cashiers are employed.  The receptionists, bakers and data entry clerks have entered into excess hours and averaging agreements with the employer, and the employer is seeking approval from the Director of Employment Standards to permit the receptionists, bakers and data entry clerks to work excess hours and to average hours of work. 

How should the employer fill out the application for approval? 

• The employer makes only one application.  (Approvals for excess hours and for averaging can be applied for on the same application form.)
• The employer indicates that its main office in Toronto is the location; no other locations are mentioned.
• The employer lists each occupational group for whom approval is sought.  The employer also indicates the total number of employees in those occupations at all its locations at the time the approval is made, i.e., 2 receptionists, 70 bakers and 4 data entry clerks.
• If an approval is granted, a copy of the approval must be posted at all locations where receptionists, bakers or data entry clerks work.

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What if the Employer Acquires New Work Locations After an Approval is Issued?

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If employees at a new work location are part of an occupational group that is listed on an existing approval, a new application for approval is not required for them to work excess hours or to have their hours averaged, provided that written agreements are in place with the employees at the new location(s) and that a copy of the existing approval is posted at the new location(s).

If employees at a new work location are not part of an occupational group that is listed on an existing approval and these employees have agreed to work either excess hours or to have their hours of work averaged, the employer must submit an application for these occupational groups in order for the excess hours to be worked or for the hours to be averaged legally.

Additional Agreements or New Employees After the Approval is Issued

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While Part 5 of the application requires employers to indicate the number of employees in the occupational group, the approval, if granted, is not limited to that number and will apply to all employees who are in the group. (Note, however, that it is not legal for excess hours to be worked or for hours to be averaged unless there is both an approval and a written agreement between the employer and the employee.)

For example, it may be that when the employer applied for approval for a group of cashiers, it had 10 cashiers on staff, but only 7 of them had entered into written agreements, and so the employer’s application indicated that there were 7 employees in the group. If an approval is granted and it covers the occupational group “cashiers”, and later additional cashiers enter into written agreements, it will not be necessary for the employer to apply for an additional approval; the existing approval will apply to all cashiers who enter into written agreements, both those who had already entered into agreements when the approval was issued and those who did not enter into agreements until after it was issued.

Likewise, it may be that when the employer applied for approval for a group of salespersons, it had 5 salespersons on staff who had entered into written agreements, and so the employer’s application indicated that there were 5 employees in the group. If an approval is granted and it covers the occupational group “salespersons”, and later the employer hires 2 additional salespersons who enter into written agreements, it will not be necessary for the employer to apply for an additional approval; the existing approval will apply to all salespersons who enter into agreements, both those who were already on staff when the approval was issued and those who were not hired until after it was issued.

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Pending Approval Rules

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Excess Hours

If an employer’s application has been pending for 30 days or more, employers who meet the conditions established under Section 17(4) of the Employment Standards Act (ESA) are permitted to allow employees to work excess hours pending the issuance of an approval, so long as the employees’ hours of work do not exceed any of:

• the number of hours specified on the application;
• the number of hours specified in the written agreement; or
• 60 hours.

Averaging

If an employer’s application has been pending for 30 days or more, employers who meet the conditions established under Section 22(2.1) of the ESA are permitted to allow employees’ hours of work to be averaged over 2 weeks, pending the issuance of an approval.

For more information about the pending approval and the conditions which must be met before these provisions may be relied upon please review the following:

• Pending Approval for Excess Weekly Hours of Work: Conditions and the 30-Day Period; and
• Pending Approval to Average Hours of Work for Overtime Pay Purposes: Conditions and the 30-Day Period

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Can an Employer Call to Check the Status of Its Application??

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Yes, please call 416-326-2450 for status updates. However, please request a status update on your application only if more than 30 days have elapsed since you filed your application.

Can an Employer Help to Expedite the Processing of Its Application?

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• Apply Online. When you complete and submit your application for Hours of Work Approval online you  will receive immediate confirmation that your application has been received and you will be provided with an identification number that will follow your application throughout the approval process.
• Online applications can be processed significantly faster because applications received by mail or fax must have data entered before they can be processed.
• Have copies of the written agreement with the employee(s) or union ready for review upon request.