Labour minister says 'enforcement is back in style' when it comes to employment standards
The Ontario government’s move to banish the 60-hour work week is being met with criticism from labour groups and employers.
Wayne Samuelson, of the Ontario Federation of Labour, told the Canadian Press the legislation doesn’t necessarily mean the end of the 60-hour work week or that employers won’t coerce staff to work longer hours.
“The 60-hour work week is there if the ministry says OK and employees sign something,” said Samuelson. “What employee in a non-union workplace is not going to sign some document if the employer puts it in front of them?”
Employers were upset because the province said it would put more resources into enforcing workplace laws.
Len Crispino, president and CEO of the Ontario Chamber of Commerce, said there is “excessive reliance” on enforcement.
“We certainly believe that to the extent there might be a few bad apples out there that of course the minister should go after them,” Crispino told the Canadian Press. “But we just don’t believe from the data that we’ve got that the issue is as widespread perhaps as the minister might imply.”
Labour Minister Chris Bentley said the move will protect workers, increase awareness of workplace rights and provide more rigorous enforcement of employment standards.
“This legislation, if passed, would let vulnerable workers decide, without undue pressure, whether to work extra hours,” said Bentley. “We will also make sure employees know their rights and employers understand their obligations. Backing this up will be tougher enforcement against those who refuse to operate responsibly, preying on workers and undermining competitors.”
The legislation forms part of a broader strategy to ensure compliance with the Employment Standards Act, 2000, which covers such things as termination, severance and vacation pay
“The law as written contains the enforcement tools, they just need to be used,” said Bentley. “Last year there more than 15,000 claims against employers and only one prosecution was started. Starting today, enforcement is back in style.”
What the government is proposing
The proposed legislation, the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, would require employers to apply to the government to have their employees work more than 48 hours in a week.
Currently, employers can have employees work more than 48 hours a week, up to a maximum of 60 hours, without applying to the Ministry of Labour, if they have the written agreement of their employees to do so. Some employees have complained about feeling pressured to agree to extra hours, the government said.
Under the new legislation, employees would also have to agree in writing to work more than 48 hours. In addition, the proposed legislation would require employee agreement and the employer to apply to the government for overtime averaging.
•In all circumstances, employees would have to agree in writing to work hours more than 48 in a week.
•When employers apply to the Ministry of Labour to work the extra hours, they would find that online filing, better ministry information, simple forms and timely responses would streamline the process for them, the government said. A lead-in period would allow employers time to apply to the ministry before the law comes into effect.
•The ministry could then consider such things as the employer's employment standards compliance history and health and safety of workers in determining whether an approval should be given.
•The ministry would conduct spot checks at some workplaces to ensure that written agreements are in place, that employees have been given the required information sheet, and that employees have signed willingly.
•For agreements made on or after Jan. 1, 2005, the day the act would come into force if passed, employers asking employees to sign agreements would have to provide employees with a Ministry of Labour-produced information sheet so that they are fully informed about their rights, including the right to refuse to work hours beyond 48 in a week.
•Written agreements signed before the proposed act comes into force would still be valid, but employers would have to provide employees who signed the agreements with the information sheet by April 1, 2005.
•Employees would still have the right at any time to revoke their agreements to work extra hours after providing two weeks' written notice to their employers. Employers could also revoke agreements with reasonable notice.
Example 1
The following is an example provided by the Ontario government of how the new regulations would work:
Because of booming business and Jen's expertise in production, Jen's company would like her to work 54 hours a week. Jen would also like to work these hours, knowing she will be paid overtime for any hours in excess of 44 in a week.
Jen's employer would have to apply to the Ministry of Labour with its plan to have her work 54 hours in a week and Jen's written agreement would be required before she works these hours. Before she signs the agreement, her employer must give Jen the Ministry of Labour-produced information sheet setting out her rights, including the right to refuse work hours beyond 48 in a week.
After 30 days, if the company has not heard that its application has been refused, it can have Jen begin working up to 54 hours a week.
Her company would subsequently receive an approval, refusal, or modification from the Ministry of Labour.
If it receives a refusal, Jen would have to cease working the extra hours. Ministry approval would be for a maximum period of three years, and then her employer could reapply if necessary. However, Jen's company could be subject to increased ministry scrutiny to protect against any abuses of this approval.
Jen could revoke the agreement at any time by giving her employer two weeks' notice in writing. The employer could also revoke the agreement with reasonable notice.
Example 2
Another example from the Ontario Ministry of Labour of how the new legislation will work:
Salvatore works for a company that typically has six eight-hour shifts for a 48-hour work week. Salvatore's employer would like him to work occasional extra shifts when another employee is ill or there are unanticipated production demands. They are seeking approval for hours of up to 56 a week. Salvatore does not want to work these extra hours.
Salvatore's employer asks him if he would work these hours, but he has family responsibilities and says he would rather not, and does not provide his written agreement.
Without Salvatore's written agreement, the company could not have him work these hours.
Example 3
Another example from the Ontario Ministry of Labour of how the new legislation will work:
Sami is starting to work for a company that would like him to work nine hours a day for six days for a total of 54 hours per week. Sami agrees to provide his written agreement for these hours.
Sami's company applies to the Ministry of Labour and says their employee has agreed to work these hours.
The ministry reviews the application and discovers the company has a history of contravening the Employment Standards Act.
The Ministry of Labour decides to deny the employer's application based on its history of non-compliance with the act. Sami could not work these hours.
Overtime averaging provisions
Under the proposed legislation, employers seeking to average weekly hours for the purposes of calculating overtime pay would have to apply to the Ministry of Labour as well as obtain the written agreement of employees.
Enforcement
Enhanced enforcement measures will also ensure increased compliance with the law, the government said. These new measures will include:
•stricter enforcement, including prosecutions where warranted;
•a new proposed requirement that employers be given a Ministry of Labour-produced information sheet that sets out employees’ rights about hours of work and overtime pay; and
•significantly enhanced and simplified web-based access to better information for employers and employees.
Penalties
If convicted under the act, corporations may be fined up to $100,000 for a first offence, $250,000 for a second and $500,000 for a third or subsequent offence. An individual can, on each count, be fined up to $50,000 and sentenced to up to 12 months in jail, or both.
Wayne Samuelson, of the Ontario Federation of Labour, told the Canadian Press the legislation doesn’t necessarily mean the end of the 60-hour work week or that employers won’t coerce staff to work longer hours.
“The 60-hour work week is there if the ministry says OK and employees sign something,” said Samuelson. “What employee in a non-union workplace is not going to sign some document if the employer puts it in front of them?”
Employers were upset because the province said it would put more resources into enforcing workplace laws.
Len Crispino, president and CEO of the Ontario Chamber of Commerce, said there is “excessive reliance” on enforcement.
“We certainly believe that to the extent there might be a few bad apples out there that of course the minister should go after them,” Crispino told the Canadian Press. “But we just don’t believe from the data that we’ve got that the issue is as widespread perhaps as the minister might imply.”
Labour Minister Chris Bentley said the move will protect workers, increase awareness of workplace rights and provide more rigorous enforcement of employment standards.
“This legislation, if passed, would let vulnerable workers decide, without undue pressure, whether to work extra hours,” said Bentley. “We will also make sure employees know their rights and employers understand their obligations. Backing this up will be tougher enforcement against those who refuse to operate responsibly, preying on workers and undermining competitors.”
The legislation forms part of a broader strategy to ensure compliance with the Employment Standards Act, 2000, which covers such things as termination, severance and vacation pay
“The law as written contains the enforcement tools, they just need to be used,” said Bentley. “Last year there more than 15,000 claims against employers and only one prosecution was started. Starting today, enforcement is back in style.”
What the government is proposing
The proposed legislation, the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, would require employers to apply to the government to have their employees work more than 48 hours in a week.
Currently, employers can have employees work more than 48 hours a week, up to a maximum of 60 hours, without applying to the Ministry of Labour, if they have the written agreement of their employees to do so. Some employees have complained about feeling pressured to agree to extra hours, the government said.
Under the new legislation, employees would also have to agree in writing to work more than 48 hours. In addition, the proposed legislation would require employee agreement and the employer to apply to the government for overtime averaging.
•In all circumstances, employees would have to agree in writing to work hours more than 48 in a week.
•When employers apply to the Ministry of Labour to work the extra hours, they would find that online filing, better ministry information, simple forms and timely responses would streamline the process for them, the government said. A lead-in period would allow employers time to apply to the ministry before the law comes into effect.
•The ministry could then consider such things as the employer's employment standards compliance history and health and safety of workers in determining whether an approval should be given.
•The ministry would conduct spot checks at some workplaces to ensure that written agreements are in place, that employees have been given the required information sheet, and that employees have signed willingly.
•For agreements made on or after Jan. 1, 2005, the day the act would come into force if passed, employers asking employees to sign agreements would have to provide employees with a Ministry of Labour-produced information sheet so that they are fully informed about their rights, including the right to refuse to work hours beyond 48 in a week.
•Written agreements signed before the proposed act comes into force would still be valid, but employers would have to provide employees who signed the agreements with the information sheet by April 1, 2005.
•Employees would still have the right at any time to revoke their agreements to work extra hours after providing two weeks' written notice to their employers. Employers could also revoke agreements with reasonable notice.
Example 1
The following is an example provided by the Ontario government of how the new regulations would work:
Because of booming business and Jen's expertise in production, Jen's company would like her to work 54 hours a week. Jen would also like to work these hours, knowing she will be paid overtime for any hours in excess of 44 in a week.
Jen's employer would have to apply to the Ministry of Labour with its plan to have her work 54 hours in a week and Jen's written agreement would be required before she works these hours. Before she signs the agreement, her employer must give Jen the Ministry of Labour-produced information sheet setting out her rights, including the right to refuse work hours beyond 48 in a week.
After 30 days, if the company has not heard that its application has been refused, it can have Jen begin working up to 54 hours a week.
Her company would subsequently receive an approval, refusal, or modification from the Ministry of Labour.
If it receives a refusal, Jen would have to cease working the extra hours. Ministry approval would be for a maximum period of three years, and then her employer could reapply if necessary. However, Jen's company could be subject to increased ministry scrutiny to protect against any abuses of this approval.
Jen could revoke the agreement at any time by giving her employer two weeks' notice in writing. The employer could also revoke the agreement with reasonable notice.
Example 2
Another example from the Ontario Ministry of Labour of how the new legislation will work:
Salvatore works for a company that typically has six eight-hour shifts for a 48-hour work week. Salvatore's employer would like him to work occasional extra shifts when another employee is ill or there are unanticipated production demands. They are seeking approval for hours of up to 56 a week. Salvatore does not want to work these extra hours.
Salvatore's employer asks him if he would work these hours, but he has family responsibilities and says he would rather not, and does not provide his written agreement.
Without Salvatore's written agreement, the company could not have him work these hours.
Example 3
Another example from the Ontario Ministry of Labour of how the new legislation will work:
Sami is starting to work for a company that would like him to work nine hours a day for six days for a total of 54 hours per week. Sami agrees to provide his written agreement for these hours.
Sami's company applies to the Ministry of Labour and says their employee has agreed to work these hours.
The ministry reviews the application and discovers the company has a history of contravening the Employment Standards Act.
The Ministry of Labour decides to deny the employer's application based on its history of non-compliance with the act. Sami could not work these hours.
Overtime averaging provisions
Under the proposed legislation, employers seeking to average weekly hours for the purposes of calculating overtime pay would have to apply to the Ministry of Labour as well as obtain the written agreement of employees.
Enforcement
Enhanced enforcement measures will also ensure increased compliance with the law, the government said. These new measures will include:
•stricter enforcement, including prosecutions where warranted;
•a new proposed requirement that employers be given a Ministry of Labour-produced information sheet that sets out employees’ rights about hours of work and overtime pay; and
•significantly enhanced and simplified web-based access to better information for employers and employees.
Penalties
If convicted under the act, corporations may be fined up to $100,000 for a first offence, $250,000 for a second and $500,000 for a third or subsequent offence. An individual can, on each count, be fined up to $50,000 and sentenced to up to 12 months in jail, or both.
