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.
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 $19.47 = $584.10
15h. B x $19.18 = $287.70
Total = $871.80 ÷ 45h. = $19.37 (average rate)
One will thus calculate:
40h. x $19.37 (average rate) = $774.80
2. Overtime : +
5h. x $19.37 x 150% = $145.28
Total = $920.08 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 $19.47 = $292.05
15 h B x $19.18 = $287.70
15 h other $15 = $225.00
Total = $804.75$
$804.75 ÷ 45 h = $17.88 (average rate)
One will thus calculate:
1. Regular time :
40 h x $17.88 = = 715,20$
2. Overtime :
5h. x 17,88$ x 150% = 134,10$
= 849,43$ 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:
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.
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)
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