Variances

Variances allow for work schedules that do not strictly meet the requirements of the Employment Standards Act but are consistent with the intent of the Act. For example, variances must:

  • Promote fair treatment of employees and employers
  • Help employees balance work and family responsibilities
  • Benefit the majority of employees

The following sections of the Employment Standards Act can be the subject of a variance request:

  • Time period specified in the definition of "temporary layoff"
  • Section 17(1): paydays
  • Section 25: special clothing
  • Section 33: split shifts
  • Section 34: minimum daily hours
  • Section 35: maximum hours of work
  • Section 36: hours free from work
  • Section 40: overtime wages for employees not on a flexible work schedule
  • A period specified in section 37(1) number of weeks covered by an agreement to average hours of work
  • Section 64: notice and termination pay requirements for group terminations

Not all changes to work schedules need a variance. Some changes may be made by an averaging agreement: a written agreement between an employer and an affected employee.

Employers who operate without a valid variance in place may be subject to an investigation.


Employers and employees can make a joint application for a variance


Step 1: Make sure staff agree

Before applying for a variance, employers must make sure that the majority of employees who will be affected are aware of the application and approve of it.


Step 2: Complete the application form or write a letter

The employer and employees should submit a completed application form or write a letter to the Director of Employment Standards.

Or write your own letter and include the following:

  • The employer's name, address and phone number
  • A detailed description of the variance being requested and the sections of the Act involved
  • The length of time needed for the variance
  • The reason for requesting the variance
  • The group of employees affected (e.g. their occupation or classification) as well as the name of each employee who will be affected by the variance (include the names of employees within a group who will not be covered by the variance)
  • A schedule that shows a proposed shift cycle, including proposed work days and hours (for overtime variance applications)
  • A signature from the employer and more than 50 percent of the affected employees who support the application
  • The name and personal phone number for each employee who signs the application

The application or letter can be:

OR


Step 3: The Employment Standards Branch reviews the application

A variance application is usually reviewed within two weeks of receiving it. More information might be requested.

Once a variance is approved, a Variance Notice is mailed to the applicants.

Initial variance applications may be approved for up to two years. Renewed variances can be approved for up to five years.


Step 4: Implement the change and let staff know

A copy of the Variance Notice must be displayed in the workplace where all affected employees can read it.

The terms or schedule in the variance must be followed, except in circumstances beyond the control of the employer or employees.

If a variance applies to a specific employee, the employee must be identified on the variance, and the variance will end if that employee stops working.


When a variance expires


The Employment Standards Branch must receive a new variance application at least 30 days before the previous variance expires to allow time for processing. If a new variance is not issued by the time the old one expires, the employer will be required to comply with all of the requirements of the Act.


Variances can be cancelled


An employer can cancel a variance if employees are not negatively affected. To cancel they must:

  • Notify the Employment Standards Branch and the employees affected by the cancellation
  • Pay overtime to all employees who are not given the opportunity to finish their shift cycle according to the terms of the variance

Employees affected by a variance can notify the Employment Standards Branch and the employer that they would like the variance to be cancelled. If the employer wants the variance to remain in place, they must prove that more than 50 percent of affected employees support the variance.

The Director of Employment Standards may cancel a variance if the employer is not following the rules of the variance.


Employees covered by a variance can receive overtime and statutory holiday pay


Getting paid for overtime

If an employee who is covered by a variance works hours that are not part of the scheduled hours in a regular shift cycle, the extra hours must be paid at overtime rates:

  • Time-and-a-half for hours worked over the terms of the variance up to 12 hours a day
  • Double-time for any hours worked over 12 hours in a day
  • Time-and-a-half for any hours worked over an average of 40 in a week, over the course of the shift cycle

Employees covered by an overtime variance must work or earn wages for the full shift cycle. If there is not enough work for the employee to work a full shift cycle, overtime must be paid. This does not apply if an employee quits or is fired.

Regular overtime payment may apply if the employer is not following the requirements of a variance.


Statutory holiday pay

An employee covered by a variance is entitled to statutory holiday pay once he or she has been employed for 30 days. They do not need to have worked 15 of the 30 days prior to the statutory holiday.



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