The Employment Standards Act sets the maximum number of hours in a work day and a work week in section 17.  As an employer, you cannot require your employees to work more than 8 hours in a day and 48 hours in a work week.  This is one area where the Employment Standards Act posts a maximum instead of minimum.  An employer and employee can agree that the employee work an excess of the daily or weekly limit if they have both entered into an agreement, there is approval from the director of Employment Standards that applies to the employee or clause of employees that includes the employee, and the employee’s hours in a work week do exceed the lesser of the number of hours specified in the agreement and the number of hours in the approval.  Typically the agreement would be set out somewhat like a mini employment offer.  The employee would understand that the employer requires him or her to work in excess of 48 hours a week but no greater than (for example) 50 hours or 55 hours a week.  In the agreement, you would want to note that the employee has received the information concerning hours of work and overtime pay, agree to the memorandum of agreement to work excess hours, you might want to put in a revocation clause whereas the employee can advise the employer that he or she wishes to revoke his or her agreement to work excess hours, and always ensure that you have a clause noting that the employee acknowledges the agreement without duress.  The employer needs to provide an employee with a copy of the most recent information for employees about hours of work and overtime pay and the employee needs to agree or acknowledge that he or she has received and read this.  The provision concerning a revocation to work excess hours by providing the employer with 2 weeks notice is legislated at section 17(6).  The employer also needs to provide the employee with reasonable notice in order to revoke the agreement, which is noted at 17(7).

The employer can also apply for an approval for some or all of its employees to work more than 48 hours, in a work week, in a form that would be provided by the director.  This application would entitle the hours of work and average hours.  The Ministry of Labour would provide this to the employer, who would fill it out and return to the director of Employment Standards at 400 University, in Toronto.  I am attaching a copy of the hours of work and averaging hours to this comment for information purposes.  The director of Employment Standards would then either issue an approval or disapproval depending on the director’s view, if the application would be appropriate.  Obviously the director of Employment Standards would look at the employer’s current or past contraventions, if any, the Employment Standards Act or its health and safety of the employees.  The approval can be effective for a maximum of 3 years, from the date the approval was issued.  This is noted at 17(15) and (17) of the Employment Standards Act.  The approval can be effective for a maximum of 3 years, from the date the approval was issued by the director of Employment Standards however, if the employer is applying for hours of work greater than 60 hours a week, this would expire not more than 1 year after the approval was issued.

If the director of Employment Standards decides to deny the approval the director would apply notice to the employer that the application has been denied and the employer must post that application in denial in the workplace, for 60 days, following the notice of denial.

With respect to the hours free from work, an employer must provide its employee’s with at least a period of 11 consecutive hours free from work each day (unless the employee was on call).  Further, the employer shall provide the employee with a free period with at least 8 hours between shifts and that the total time worked on successive shifts is not greater than 13 hours or the employer and employee agree otherwise.  Further, employees are entitled to a period free from the performance of work equal to at least 24 consecutive hours in every work week or at least 48 hours in 2 consecutive work weeks.

If you require more information concerning the hours free from work, free periods, overtime pay or assistance to applications to the director of Employment Standards, please do not hesitate to contact me and I would be more than happy to assist your company.