Proposed changes to the Employment Standards Act’s hours of work and overtime protections buried in the PC government’s Bill 66, the so-called Restoring Ontario's Competitiveness Act, could have profound impacts on the paycheques of working people in this province.

The key changes proposed by the PCs concern ministry of labour oversight of excess hours of work and overtime averaging agreements, and could result in many Ontarians working more hours and earning less overtime pay.

Under the Employment Standards Act, most workers in Ontario are entitled to overtime pay at 1.5 times their regular rate for all hours worked above 44 hours per week.

One notable exception is the ability of employers to enter into overtime averaging agreements with their employees to average their hours of work over two or more weeks for the purpose of overtime entitlement.

Under current law, a valid overtime averaging agreement requires the approval of the director of employment standards. This is not just a rubber stamp; rather, the employer is generally required to demonstrate a clear benefit to the employees resulting from the agreement. For instance, an agreement may be approved for workers on shift schedules resulting in them receiving more days off over a two-week period than a typical employee, but also resulting in them accumulating overtime during one of those two weeks.

In addition to its overtime protections, the act also prohibits employers from requiring or permitting employees to work more than 48 hours per week unless they enter into a written excess hours agreement with the employee, and the director approves the employer’s application for excess weekly hours of work.

In determining whether to approve an excess hours application, the director considers various factors, including whether the employer has demonstrated a business need, whether it has explored other ways of getting the work done, and what steps the employer will take to reduce excess weekly hours in the future.

Furthermore, with respect to both types of agreements, the director will also consider the employer’s compliance with the act and health and safety legislation.

These oversight mechanisms are critical to limiting overtime averaging and excess hours agreements to truly appropriate circumstances.

Bill 66 now proposes to remove these safeguards. An inevitable result will be the proliferation of overtime averaging agreements in workplaces where no justifying circumstances are present, and employers are simply seeking to cut costs at their employees’ expense.

Employees are typically told to sign these agreements at their time of hire, and overwhelmingly do so for fear of being passed up for a candidate who will. This fundamental imbalance of bargaining power is precisely the reason for ministerial approval of these agreements in the first place — indeed, it is the basis for all employment standards.

The passage of Bill 66 could mean more hours of work and less overtime pay for working people. These changes are indefensible and should never become law.

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Josh Mandryk is a lawyer at Goldblatt Partners LLP and represents workers in a number of unpaid overtime class actions.

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