On December 5, 2017, the Minister of Labour issued an order in council amending the current Employment Standards Regulations (Regulations) and further amending the Employment Standards Code (Code). Except where expressly indicated below, the Regulations and amendments come into force on January 1, 2018.

A summary of the changes to the Regulations and further amendments to the Code follow.

Updates to Overtime, General Holiday Pay, Vacation Pay, and Minimum Wage Exemptions

  • Provides updated definitions for certain exemptions such as dealers and advisers under the Securities Act and insurance agents.

No Deductions from Pay for Faulty Work or Uniforms

  • Employers cannot deduct from earnings for faulty work. Faulty work includes any act or omission of an employee that results in a loss to the employer.
  • Employers cannot deduct or receive payment out of earnings for the furnishing, use, repair or laundering of uniforms, or special articles of wearing apparel.

Rules for Averaging Agreements

  • Employees working under an averaging agreement are entitled to the greater of overtime for (1) hours worked in excess of the scheduled hours (or 8 hours if scheduled for less), or (2) hours worked in excess of an average of 44 hours a week.
  • Employers must specify the work schedule in the averaging agreement, including all workdays and the number of hours to be worked on each of those workdays.
  • Employers can make temporary changes to averaging agreements, if they provide 2 weeks' notice. Notice is not required if there is an accident, urgent work is necessary, or there are unforeseen or unpreventable circumstances.
  • If the employee's employment ends during an averaging period, then the employee's overtime is to be calculated as if they worked out the remaining hours in the averaging period.
  • Averaging agreements can be cancelled with 30 days' notice by the employer, or by employees, if a majority of the affected employees consent.
  • Employers must post an averaging agreement on the employer's website and in a conspicuous place in the workplace, and provide a copy to all employees bound by the agreement.

Flexible Averaging Agreements

  • These agreements are available only at the request of a full-time employee.
  • They can specify a daily overtime threshold that can exceed the employee's scheduled hours of work (to a maximum of 10 hours).
  • The averaging period cannot exceed 2 weeks.
  • Employees are entitled to overtime, if they exceed the maximum threshold or exceed an average of 44 hours in a week.
  • These agreements must specify all work days and the number of hours to be worked on those days.
  • Flexible time is time worked over the scheduled hours, but less than the maximum threshold. For flexible time worked, the employer must provide time off at the employee's regular wage rate. Time off must be provided before the end of the next averaging period or paid at the employee's regular wage rate.
  • If the employee's employment ends during an averaging period, then the employee's overtime is to be calculated as if they worked out the remaining hours in the averaging period.
  • Flexible averaging agreements can be cancelled with 30 days' notice.
  • Employers must provide a copy of the agreement to the employee subject to it.

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