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Interpretation / jurisprudence

Interpretation: spreading the overtime hours, article 3.01

Payroll register and monthly report inscriptions when spreading overtime hours

The employer must note the real worked hours in the payroll register and monthly report even if there is an agreement to spread the overtime hours on a different schedule.

Appendix 2 and 3 of the decree both stipulate that the employer must indicate the employee's worked hours for each week.

Example:

 Week 1Week 2Week 3Week 4 Average
Worked hours
60 20 60 20 40
Paid hours
40 40 40 40 40 regular hours
Payroll register
60 20 60 20 effective inscription
Monthly report
60 20 60 20 effective inscription

 

Interpretation: calculation of overtime, article 3.02

1. Work for two companies

If the Parity Committee can show that the creation of the two companies is a subterfuge to avoid the payment of overtime and that the employee who works for these two companies carries out more than 40 hours per week, there is overtime.

Jurisprudence :

Alliance sécurité et investigation vs. Minimum Wage Commission
Court of Appeal, October 23, 1981
Judges Montgomery, Paré and Jacques

2. Overtime and different time rates

How to calculate the overtime pay when there are two wage rates?

If Monday to Friday the employee carries out hours of class A and class B for a 40 hours total and that Saturday, he works 8 hours of class A, these 8 hours are payable overtime at the rate of class A since one can identify which work was carried out after 40 hours.

If this identification is impossible, one must presume that the overtime hours were worked in the same proportion as the total hours of the week.

Here is an example:
An employee carries out in the same week 30 hours of class A and 15 hours of class B work for a 45 hours total.

The first step is to calculate the average rate due:

30h. A x $18.07 =
15h. B x $17.60 =
Total =
$542.10
$264.00 
$806,10 ÷ 45h. = $17.91 (average rate)

 One will thus calculate:

1. Regular time :
40h. x $17.91 (average rate) =
2. Overtime :
5h. x $17.91 x 150% =
Total =

$716.53

+ $134.35
$850.88 Due


How to calculate overtime pay when there are three different wage rates?

Here is another example:
An employee works a total of 45 hours in one week, distributed as follows:
15 hours of class A, 15 hours of B and 15 hours of other work (not subject to the decree), paid at $15 / hour.

First step: calculation of the average rate due:

15 h A x $18.07 =
15 h B x $17.60 =
15 h other $15 =
Total
$760.05 ÷ 45 h =

$271.05
$264.00 
$225.00
$760.05$
$16.89 (average rate)

One will thus calculate:

1. Regular time :
40 h x $16.89 =
2. Overtime :
5h x $16.89 x 150% =

$675.60$

+$126.68 
$802.28 Due

3. Calculation of overtime pay when not worked statutory holidays occur

The following example shows how to calculate the overtime when a holiday occurs and the employee doesn't work:

Monday Tuesday Wednesday Thurday Friday Saturday Total
7h Stat. hol.
7h 7h 7h 7h 7h 42 hours

The total of the week will be divided into 35 regular hours + 7 statutory holiday hours = 42 hours.
40 regular hours must be paid + 2 overtime hours (time and a half), since the 7 hours of holiday on Monday "are considered as working days" according to article 3.02, 2nd paragraph.

This example applies only when the holiday is not worked.

4. Calculation of overtime pay when worked statutory holidays occur

When the statutory holiday is worked, one cannot include the hours paid for the holiday in the calculation of overtime. However, the wage rate for the hours worked on the holiday must be increased by 50%, as provided by article 7.07.

Example 1:

Monday Tuesday Wednesday Thurday Friday Total
7h 7h worked
7h stat. Hol.
7h 7h 7h 28 hours
+ 7h stat. Hol.
+ 7h worked Hol.

The 7 hours of paid statutory holiday do not enter into the calculation of overtime since the holiday was worked. The 7 worked hours of the legal holiday are added to the 28 regular worked hours, for a total of 35 worked hours. There is no overtime as concerns the normal week. However, the hourly rate for the hours worked on the statutory holiday must be increased by 50% in accordance with article 7.07.

Example 2: application of both articles : 3.02 (standard week) and 7.07 (worked holiday)

Monday Tuesday Wednesday Thurday Friday Saturday Total
7h 7h worked
7h stat. Hol.
7h 7h 7h 7h 35 hours
+ 7h stat. Hol.+ 7h worked Hol.

According to article 3.02 :

The hours of the week taken into account for the calculation of overtime are:
35 regular hours + 7 hours worked during the holiday = 42 hours. (The 7 hours paid as statutory holiday do not count because the holiday was worked.)
The employer must calculate 40 regular hours AND 2 hours of overtime, paid at time and a half according to article 3.02.
Also, according to article 7.07, the 7 hours worked on the holiday must be paid at time and a half.
There will be a total of 9 hours paid at time and a half.
Thus, 42 hours - 9 hours at time and a half = 33 regular hours.

In conclusion, there are:

  • 7 hours paid for the statutory holiday (art. 7.01)
  • 7 hours worked holiday paid at time and a half (art. 7.07)
  • 2 hours of overtime (art. 3.02)
  • 33 regular hours