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

  • ISBN: 0-7794-7408-2
  • Content last reviewed: January 2018

Disclaimer

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 Ministry of Labour's 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 nine 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.

Nine Conditions

  1. The employee has entered into an electronic or written agreement with the employer to average hours of work over a specified number of weeks.
  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.
  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.
  9. If an employee has two or more regular rates the employer must use the highest regular rate to complete overtime calculations.

Condition 9: 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 or electronic 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.

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Disclaimer: This resource has been prepared to help employees and employers understand some of the minimum rights and obligations established under the Employment Standards Act, 2000 (ESA) and regulations. It is not legal advice. It is not intended to replace the ESA or regulations and reference should always be made to the official version of the legislation. Although we endeavor to ensure that the information in this resource is as current and accurate as possible, errors do occasionally occur. The ESA provides minimum standards only. Some employees may have greater rights under an employment contract, collective agreement, the common law or other legislation. Employers and employees may wish to obtain legal advice.