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IS OVERTIME MANDATORY UNDER THE EMPLOYMENT STANDARDS ACT?

Employees cannot generally be required to work more than 8 hours a day or 48 hours a week in Ontario.  There are some exceptions to this rule.  One of those exceptions is that if an employee was hired before September 4, 2001, when the new legislation took effect, and has an arrangement with the employer that provides that the employee is willing to work, at the employer=s request, more hours per day than the number of hours in her regular work day, the 8-hour limit does not apply.  The arrangement does not have to be in writing.  If both parties have agreed to revoke the arrangement, of course, it no longer exists. 
 
An employee who works for the Toyota plant in Cambridge and who was hired before September 4, 2001 recently filed a complaint with the Ministry of Labour alleging that his employer was making him work more than 8 hours in a day without falling into the exception outlined above.  He said that he did not have an arrangement with his employer whereby he was  willing to work at the employer=s request more hours per day than the number of hours in his regular work day of 8 hours.
 
When the applicant went to the Canada Employment Centre to inquire about the Toyota position he was handed a brochure which indicated that he would be required to work overtime when requested.  Before the employee was even offered a job he was required to watch a 9 minute video about the position which indicated that a normal day could include up to an hour of overtime
 
When employees applied for their job at Toyota they indicated on their application that they were willing, upon request, to work overtime. 
 
The employee who filed the complaint was initially hired under a one year contract.  The contract made it clear that during that time the employee was required to support overtime when he was requested to do so.  The employee signed a second contract under the same terms and soon thereafter accepted a full time position, subject to a 6-month probationary period.  Because of the wording of the last agreement the employee signed, that one offering him a 6-month probationary period before becoming a full time employee, the employee claimed he had no Aarrangement@ with the employer to work overtime.
 
The offer letter started out by offering him a full time probationary position and then listed the terms and conditions of that position.  One of the listed conditions was the requirement to work overtime.  The employee argued that after he finished his 6-month probationary period, all of those terms were at an end.
 
The reality is that many of the terms listed, including vacation entitlement and hourly rate, of course, survived the probationary period.
 
 
The Ministry of Labour officer involved focused on the particular wording of the Act.  She focused on the words Awilling@ and Arequest@. The Employment Standards officer who investigated this matter found that the employer, historically, was not in the habit of Arequesting@ overtime but rather Arequired@ it.  She found that since working overtime was a requirement of the job from day one, there was never a practice of employees being Awilling@ and the employer Arequesting@.  Rather, she found that the employer Arequired@ the overtime and there was nothing optional about it.  
 
At this point, one might argue that the Arequest@ and Awillingness@ happened the day the employee accepted the job.  If they did not want to voluntarily enter into the arrangement they should have looked for work elsewhere.  This is a fair argument.      
 
The problem is that before September 4, 2001, it was illegal to Arequire@ any employee to work more than 8 hours a day without their consent no matter what pieces of paper they had signed.  Before September 4, 2001, there was no way that employees could voluntarily contract out of the requirements of the Employment Standards Act no matter how many pieces of paper they signed.  It was clear that Toyota required employees to seek approval if they were not going to work overtime.  In effect, the Employment Standards Act officer found that Toyota was breaching the Employment Standards Act before September 4, 2001 by requiring overtime and was not going to reward Toyota for that breach by calling it a Avoluntary@ arrangement as required by the new provisions of the Act.  It should be noted that before September 4, 2001, no employees were ever disciplined or terminated for refusing to work overtime.  On the other hand, the Employment Standards Act officer found that Toyota conveyed quite clearly to its employees that working overtime was a requirement of the job.
 
So in the end, the employees won.  The employer could not prove that before September 4, 2001 it had a voluntary arrangement with these employees whereby they willingly worked all overtime requested. 
This case raises some interesting issues.  If for 5 years before September 4, 2001 an employee worked overtime whenever requested except once every 6 or 7 months, would an Aarrangement@ have existed?  Would the employer have to prove that the employee always agreed to work overtime without exception in order for an arrangement to be said to exist?
 
This decision may seem unfair to those who can=t figure out why a grown adult who voluntarily takes a job which he knows requires overtime can=t be held to his commitment.  One has to keep in mind that the reason that employees could not contract out of this and many other sections of the Employment Standards Act before September 4, 2001, was because often these alleged Aagreements were actually coerced in the first place. 
 
Employers have an incredible amount of power in the workplace.  It is not that difficult to show up at an employee=s work station and hand them a piece of paper and tell them to sign it.  You don=t have to threaten to terminate them out loud.  Just give them the right look and they know what's going to happen if they don=t sign the agreement.  It is for this reason that it was illegal to require anything of an employee not condoned by the Act.  That condition still applies to many provisions of the Employment Standards Act, but overtime is no longer one of them if you were hired after September 4, 2001.  Now, with the right paper work, you can agree to work more than 8 hours a day and be forced to stick with that commitment.

 
As published in the Hamilton Spectator, September 30, 2002
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com