Proposed ESA changes in Ont. could increase overtime

Also aimed at adding flexibility to work schedules

Calling existing legislation outdated, confusing and inefficient, Ontario’s Conservative government has released a discussion paper on its proposed changes to the province’s Employment Standards Act.

The most controversial proposals concern working hours. Currently, the ESA prescribes a 48-hour maximum work week, and eight hours per day. Employers can exceed the maximums by obtaining a permit from the minister of labour.

The amendments would eliminate the permit system and establish a 60-hour maximum work week.

They would require the employer to obtain employee consent for work weeks that extended beyond 48 hours.

However, critics argue that, given the usual power imbalance between employers and employees, many employees would feel obliged to agree to whatever the employer dictates.

The employer’s obligation to pay the overtime multiple of 1.5 would still kick in at 44 hours. However, overtime could be averaged over a three-week period.

That is, an employer could have employees work a 70-hour week, but could avoid paying overtime by cutting working hours in the next two weeks so that the average was less than 44 hours.

In a bid to permit more flexible scheduling , the proposals would allow employees to choose to work on statutory holidays without the necessity of scheduling a substitute day off.

“They would have the choice,” the paper says, “of agreeing either to time and a half for the hours worked on the holiday plus a regular day’s pay or to regular pay for the day and a substitute day off with pay.

“Provisions affecting continuous operations, hospitals, [as well as] the leisure and tourist industry would continue to apply.

“Most qualifying conditions would be eliminated, except the requirement that an employee report for and perform work on the holiday if previously agreed.

“The entitlement to a regular day’s pay for the holiday would be pro-rated.”

As well, the new legislation would create “family crisis leave”:

“A new family-leave provision would give Ontario employees, in workplaces of 50 or more employees, the right to take up to 10 days of unpaid, job-protected leave per year to deal with a family crisis, personal or family illness and bereavement situations.

“The leave would apply to a personal illness and to a family crisis, illness or death of the employee’s spouse or same-sex partner, parent, step-parent, child, step-child, brother, sister, grandparent, step-grandparent, grandchild, step-grandchild, child’s spouse or same-sex partner, father or mother of spouse or same-sex partner and any relative dependent on the employee for care or assistance.”

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