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Applications for Excess Weekly Hours of Work or for Averaging Hours of Work for Overtime Pay Purposes

  • Content last reviewed: July 2018

Completing the application

There are three ways of applying for approval for Excess Weekly Hours of Work (Excess Weekly Hours) or Averaging Hours of Work for Overtime Pay Purposes (Overtime Averaging):

  • online application is available for faster and fully accessible service;
  • by filling in, printing out and faxing a PDF version of the form to 1-866-588-9998 or
  • by mailing the completed PDF form to:

    Director of Employment Standards
    400 University Avenue, 9th floor
    Toronto, ON M7A 1T7

Please use only one method to submit your application: online or fax or verified mail or in person (using the PDF). For example, if you have submitted your application online, do not also submit it by fax or mail.

If more than 30 days have elapsed since the application was filed, please review the “Pending approval rules” section below, or you can call 416-326-2450 for status updates.

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When employers should apply

Generally, the Employment Standards Act (ESA) prohibits an employer from requiring or permitting employees to work more than 48 hours in a work week (excess weekly hours) and from averaging their hours over two or more weeks for overtime pay purposes unless:

  • an approval has been issued by the Director of Employment Standards or
  • an application for approval has been pending for 30 days or more (subject to certain conditions being met).

For an explanation of the pending approval rules and the restrictions that apply, see link under “Pending Approval Rules.”

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Hours in excess of the daily or weekly limits

Daily limits

The approval of the Director of Employment Standards is not required if you want your employees to work over the daily limits of hours of work. 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.

Weekly limits

The approval of the Director of Employment Standards is required if you want your employees to work over the weekly limits on hours of work. 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.

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Averaging hours of work for overtime pay purposes

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. An employee’s hours of work can be averaged over two or more weeks for the purpose of calculating their entitlements to overtime pay. However, in order to do this, the employer must secure an approval from the Director of Employment Standards, and:

  • in the case of a non-union employee, the employee and the employer must agree, in writing, that the employees’ 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 must agree, in writing, that employees’ hours of work will be averaged over a specified number of weeks.

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Special rules and exemptions

The ESA includes exemptions or special rules that apply to certain industries and jobs. Some of them relate to excess weekly hours or averaging of hours of work for overtime pay. To see if you industry or job has any exemptions or special rules, please use the Guide to employment standards special rules and exemptions.

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Guidance for a successful application

In deciding whether to approve an application for excess weekly hours or overtime averaging arrangements, the Director of Employment Standards may consider any factors that may be relevant.

For both excess weekly hours and overtime averaging applications, the Director of Employer Standards will consider:

  • Past and present compliance with the ESA
  • Past and present compliance with health and safety legislation and any health and safety concerns that may result from excess weekly hours or from the averaging of overtime.
  • Whether or not the employer co-operates with Ministry requests for further information during the approval process (e.g. if the employer responds to a request to provide work schedules or other information).

For excess hours of work applications, the Director of Employment Standards will also consider the following:

  • Has the employer clearly identified a business requirement that demonstrates a need for excess weekly hours of work?
  • Has the employer explored other ways of getting the work done without having employees work excess weekly hours?
  • Will the employer use excess weekly hours routinely or only occasionally?
  • What step(s) is the employer taking to reduce excess weekly hours of work in the future?

In most cases, the Director of Employment Standards requires that employer’s show clear benefit(s) to employees for overtime averaging applications to be approved. For example, acceptable benefits to employees may be demonstrated in the following situations:

  • Full-time employees who have set, reoccurring schedules (usually made up of compressed work weeks or continental shifts) receive more scheduled days off during the averaging period than would be typical. Under a continental shift schedule, for example, an employee may receive 7 days off in a 2 week period, instead of the typical 4 days most workers would receive.
  • Scheduling flexibility exists, which permits employees (through a clear policy) to trade or exchange shifts within an averaging period for their own benefit.
  • The employer provides employees, in weather dependent industries, the opportunity to make up for missed scheduled work due to bad weather.

When is an application for excess weekly hours more likely to be approved?

  • The employer, prior to asking an employee to work excess weekly hours, has given the employee the Information Sheet: Information for Employees about Hours of Work and Overtime Pay.
  • The employer can demonstrate awareness of and compliance with the hours of work rules under the ESA including eating period(s), daily rest and weekly/biweekly hours free from work.
  • An application is made for a specific short-term period or periods only.
  • The employer can identify a clear business requirement for excess weekly hours of work, and has explored other ways of getting the work done without having employees work excess weekly hours.
  • The employer has measures in place to protect employees’ health and safety while working excess hours.

When is an overtime averaging application more likely to be approved?

  • The employees are full-time and have a set, recurring schedule;
  • Overtime averaging is requested over a shorter number of weeks;
  • The employer offers a lower threshold (generally less than 44 hours) for overtime pay than what is required in the ESA;
  • The employer provides a shift premium or extra compensation for working weekends, evenings or for working during unscheduled hours;
  • The proposed scheme provides for more flexible work arrangements such as additional scheduled days off;
    • For example, in a situation where an employee has a four-week work schedule that provides for more hours in the first two weeks of the schedule (e.g. 48 hours of work per week) and fewer hours in the second two weeks of the schedule (e.g. 36 hours of work per week);
  • A policy is in place that allows employees to trade or exchange shifts to accommodate their own needs;
  • The employer has a policy that allows employees to make up lost scheduled work due to bad weather or other unpredictable circumstances. For example, where scheduled work cannot be performed due to rain, the employer permits employees to make up time in a subsequent week(s);
  • A union or bargaining agent has agreed in writing to overtime averaging;
  • The employer has provided an otherwise compelling reason for overtime averaging that is acceptable to the Director of Employment Standards.

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Employers with multiple locations

When completing the application form, employers with multiple locations should note the following:

  • Employers who have the same business legal name for multiple locations are considered to be one legal entity.
  • Each legal entity should submit only one excess weekly hours of work application and/or one overtime averaging application, even if the employer has more than one location.
  • Ensure the legal name of the business is correctly recorded. (The business legal name can be found in the business registration documents, such as the Articles of Incorporation or Master Business License.)
  • List your head office as the “Employer Main Business Address” in the application. It is not necessary to provide addresses for the other locations.
  • 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, indicate the highest number of hours needed for the occupational category (across all locations).
  • Indicate the total number of employees working in the occupational group across all locations in the “Number of Employees” section 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.

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Guidelines for written agreements

Agreements between an employer and a non-unionized employee

For excess weekly hours

The written agreement between an employer and a non-unionized employee must indicate:

Please note: An employee can cancel an agreement to work excess hours by giving two weeks’ written notice to the employer. The employer can cancel the agreement by giving reasonable notice to the employee.

For overtime averaging

The written agreement between an employer and a non-union employee must indicate that the employee agrees to have their hours of work averaged over a specified number of weeks for the purpose of determining their entitlement to overtime pay. The agreement must also contain an expiry date and that expiry date cannot be more than two years from the day the agreement takes effect.

Please note: An agreement to average hours cannot be cancelled before its expiry date unless both employer and employee agree.

Agreements between an employer and union

For excess weekly hours

The collective agreement or the written agreement between the employer and the union must indicate that the union agrees that unionized employees will work up to a specified number of hours in excess of the general limit of 48 hours in a work week.

For overtime averaging

The collective agreement or the written agreement between an employer and a union must indicate that the union agrees that unionized 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.

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Pending approval rules

Excess weekly 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 ESA are permitted to allow employees to work the lesser amount of hours indicated below, until an approval or refusal notification is received:

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

Overtime 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 average employees’ hours of work over two weeks, until an approval or refusal notification is received.

For more information about pending approvals and the applicable conditions, please review the following:

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Reasons for refusing an application

When is an application for excess weekly hours more likely to be refused?

  • The employer did not provide the employee with the Information Sheet entitled: “Information for Employees about Hours of Work and Overtime Pay” prior to asking the employee to sign an agreement to work excess weekly hours.
  • The employer has a record of non-compliance with the ESA and has not demonstrated that corrective action has been taken.
  • The employer does not co-operate with the Ministry's request for further information during the review process, or has provided false or misleading information on its application or during the review process.
  • The employer does not have valid employee agreements to work excess weekly hours in place. Criteria for valid employee agreement can be found at under: Guideline for written agreements.
  • There is a risk to the health and safety of employees due to working excess weekly hours.

When is an application for overtime averaging more likely to be refused?

  • No clear benefit of overtime averaging is demonstrated for employees in non-unionized workplaces;
  • The employer has a no overtime policy for unscheduled overtime hours;
  • The employer has requested overtime averaging solely for administrative convenience (e.g. to align with a bi-weekly or monthly payroll cycle);
  • Health and safety concerns are identified;
  • The employer has a record of non-compliance with the ESA and has not demonstrated that corrective action has been taken;
  • The employer does not co-operate with the Ministry's request for further information during the review process. For example, the employer does not provide a work schedule when requested;
  • The employer has provided false or misleading information on its application or to a ministry representative during the approval process.

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Contact us

If you have questions, please contact the Employment Standards Information Centre at 416-326-7160, toll-free at 1-800-531-5551 or 1-866-567-8893 for Hearing Impaired TTY between 8:30 a.m. and 5:00 p.m., Monday to Friday, excluding statutory holidays.