Employment and Labour Blog: Flex time anyone?


The Ontario Government has just amended the Employment Standards Act again. See Bill 66, “Restoring Ontario’s Competitiveness Act, 2019”. Publishers of statute texts will never be able to keep up. The lucky thing for them is that the new changes will help the printers get their work done at a reduced cost. Under the new amendments there should be less overtime paid at time and one half. Through the statutorily facilitated new rules for averaging hours, employers can work employees up to 60 hours a week two of every four weeks provided they reduce the hours in the other two weeks to 24. This would be classic hills and valleys scheduling: one week up, one week down, repeatedly. But, some employees might like such a schedule.

By working 60 hours in week one and 24 in week 2, the average is 42 per week. Instead of 16 hours of overtime pay at time and one half equalling 24 paid hours, employees earns 84 hours of straight time pay - no overtime. But what the employee gets instead is four days off every second week. Those extra two days off every other week are probably worth 8 hours of lost pay. 

To achieve this kind schedule the employee needs the employee to agree. That agreement must still be in writing. It must have a start and end date. In a non-unionized situation, the agreement can only be for two years. All those details are arranged between the parties. There is no role for The Ministry. There is no obligation to seek permission. There is no duty to tell anyone official. As the Ford Government would say: “no red tape. We are open for business!”

The statutory backdrop is that no employee can be required to work more than 8 hours in a day or more than 48 hours in a week without a government permit. The permit which is easy to secure allows up to 60 hours a week to be worked. But, the employee still has to agree. No agreement, no extended hours.

The law also provides that overtime must be paid at time and one half for work after 44 hours. That means 16 hours of overtime pay for the hours from 45 to 60. No agreement, overtime must be paid.

What the amendments do is allow the employer and employee to trade overtime pay for reduced hours in a schedule that is more flexible. If this opportunity is attractive to employees they can approach the employer too. Depending on the nature of the work, flex time may be much easier to acquire.

The other simple change is the period of scheduling is up to four weeks. This means the possible hourly combinations are limited and not too complicated.

All these changes really do make averaging hours easier to do. Both employees and employers should be happy. Maybe they will be able to compete more effectively too. Time will show whether the flex time opportunity is effective.