Who decides employee hours of work?

Few things are more contentious than disagreements over employee work schedules. Does the employer have the right to determine how many hours employees will work? Are there thresholds past which employees can’t be made to work, with or without their consent?

To answer these questions, we first have to recognize three different sets of work hours:

  • Regular hours of work, as defined for each specific workplace;
  • Hours in excess of regular, but lower than the threshold for overtime; and
  • Overtime work up to limits on the total number of hours that may legally be worked.

Notice here the focus is on the number of work hours, rather than the many other aspects of employee work schedules. For example, some jurisdictions have rules around work on a Sunday; others have requirements for minimum times off between work shifts. All of these are beyond the scope of this article. Here we are just looking at limits on what is sometimes termed mandatory overtime.

There are no employment standards restrictions on what employers may define as the regular hours of work (so long as these fall within the maximums described below). Of course, in a unionized environment, the regular hours of work may be set in a collective agreement. Even in a non-unionized environment, employees implicitly consent to work employer-defined regular hours when they accept employment. In other words, the regular work schedule is part of the terms and conditions of employment and employers have a right to require employees to work these hours.

The next part of this question relates to time worked between regular hours and any daily or weekly overtime thresholds. For example, the weekly threshold for overtime in Ontario is 44 hours, while most regular hours range from 35 to 40 hours per week. Where the Ontario rules apply, can employers require employee work between regular hours and this overtime threshold?

There is nothing in the Ontario employment standards that address this question. Instead, you have to look at the terms and conditions of employment. Generally, these would have to specifically grant employers the right to mandatory overtime, for this right to exist. The same answer would apply wherever there was a gap between employer-defined regular hours of work and the applicable overtime thresholds.

The other point to consider is that regular hours of work may match the applicable overtime thresholds themselves. For example, in BC daily overtime applies after 8 hours and weekly overtime after 40 hours. If these are also the employer-defined regular hours of work, then the question becomes: can employers require employees to work hours that are subject to employment standards overtime requirements?

Only two jurisdictions explicitly grant this right to employers: the Northwest Territories and Nunavut. However, Manitoba grants this right in emergency situations. One jurisdiction grants employees the right to explicitly refuse overtime work: the Yukon.

With the exception of these 3 jurisdictions (and Manitoba in emergency situations), mandatory overtime only applies if it’s part of the terms and conditions of employment. If employers wish to require overtime work, that right should be clearly identified in either individual or collective contracts of employment.

Lastly, we’re left with limits on the hours, including regular hours and overtime, that employees may legally work. Not every jurisdiction limits such hours to a specific number. There are no specific limits on maximum hours of work in British Columbia, Manitoba, New Brunswick, Nova Scotia, Newfoundland and Labrador or the Yukon.

On a daily basis, worked hours are limited to:

  • 10 hours, in the Northwest Territories and Nunavut;
  • 12 consecutive hours in Alberta and Saskatchewan; and
  • in Quebec, for most employees, to regular hours plus 4, to a maximum of 14.

On a weekly basis, worked hours are limited to:

  • 48 hours/week in the federal jurisdiction, Alberta (but no limit on compressed work weeks or weeks that are averaged) and Ontario;
  • 50 hours/week in Quebec; and
  • 60 hours/week in the Northwest Territories and Nunavut.

Note, these limits apply whether or not employees consent. Without employee consent, weekly hours of work are limited to 44 in Saskatchewan (36 for weeks with a statutory holiday). Apart from this there are also exceptions:

  • Where weekly maximums may be averaged (federal, Quebec and Nunavut);
  • Where employers may apply for variances (federal, Alberta, Ontario and Nunavut); and
  • Where these limits may be exceeded in emergencies (Alberta, Saskatchewan, Ontario, Quebec and Northwest Territories).

Alan McEwen is a Vancouver Island-based HRIS/Payroll consultant and freelance writer with over 20 years’ experience in all aspects of the industry. He can be reached at armcewen@shaw.ca, (250) 228-5280 or visit www.alanrmcewen.com for more information.

About Alan R. McEwen

HRIS/Payroll consultant and freelance writer
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