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

March 2005

Application To Average Hours of Work

Generally, the Employment Standards Act, 2000 (ESA) requires an employer to have an Approval to Average Hours of Work for Overtime Pay Purposes before averaging employees' hours of work for the purpose of determining entitlement to overtime pay. However, the ESA does provide a limited exception to this requirement where an application for approval is pending and the Director of Employment Standards has not yet made a decision on it by issuing an Approval or Notice of Refusal.

If the employer satisfies all eight conditions set out below, it will be permitted to average employees' hours of work over a two-week period pending the Ministry's processing of the application.

Eight Conditions

1. The employee has entered into a written agreement with the employer to average hours of work over a specified number of weeks (for further information on written agreements see the Employer's Guide to the Application Process, Excess Weekly Hours of Work/Averaging Hours (Employer's Guide).)
2. The employer has served the application for Approval to Average Hours of Work on the Director of Employment Standards in accordance with the ESA (for further information on service see the Employer's Guide.)
3. The application applies to the employee, or the occupational group that includes the employee, whose hours of work will be averaged.
4. 30 calendar days have passed since the employer served the Director of Employment Standards with the application for Approval to Average Hours of Work.
5. The employer has not received a notice from the Director that the application to average hours of work has been refused.
6. The employer's previous application, if any, for Approval to Average Hours of Work was not refused.
7. The employer's most recent Approval to Average Hours of Work, if any, was not revoked.
8. The employee's hours of work, pending approval, are averaged over separate, non-overlapping, contiguous periods of two consecutive weeks.

Condition 8: Two-Week Averaging Period Pending Approval

This condition limits the averaging periods, pending approval, to two-week averaging periods. For example, an employer applies for Approval to Average Hours of Work using periods of four weeks. The employees have entered into written agreements to have their hours of work averaged over four-week periods. If the employer meets the conditions above, the employer may, pending approval, average employees' hours of work, but only over a two-week period.

The employer cannot average hours of work over four-week periods unless and until an approval from the Director of Employment Standards is received.