Part I - Act respecting labour standards
CHAPTER IV - Labour standards
Any work performed in addition to the regular work-week entails a premium of 50% of the prevailing hourly wage paid to the employee except premiums computed on an hourly basis.
Notwithstanding the first paragraph, the employer may, at the request of the employee or in the cases provided for by a collective agreement or decree, replace the payment of overtime by paid leave equivalent to the overtime worked plus 50%.
Subject to a provision of a collective agreement or decree, the leave must be taken during the 12 months following the overtime at a date agreed between the employer and the employee; otherwise the overtime must be paid. However, where the contract of employment is terminated before the employee is able to benefit from the leave, the overtime must be paid at the same time as the last payment of wages.
1979, c. 45, s. 55; 1990, c. 73, s. 17.
Any work performed in addition to the regular workweek of 40 hours entails a premium of 50% of the prevailing hourly wage. This means that the employee who usually receives $10.00 per hour will see his hourly wage increase by $5.00 per hour (which totals $15.00 an hour) for each hour of overtime.
Where the employee works for a set weekly wage and where he did not previously agree upon the number of working hours or the hourly rate, the wage must be computed in accordance with the regular workweek of 40 hours and the minimum wage ($9.90 an hour as of May 1, 2012) to check if the remuneration received by the employee meets the requirements of the Act.
Example For an employee who receives fixed wages of $700 per week, without the number of working hours or the hourly rate having been agreed upon, and who works 60 hours during a week:
Hourly rate = $9.90
Increased rate = $14.85
40 hours x $9.90 = $396
20 hours x $14.85 = $297
Total wages required by the Act = $693
In this example, the $700 in wages received by the employee complies with the Act, as it exceeds these requirements. It should be noted that this interpretation only applies when the hourly rate is not determined.
Seven-day week A week extends over a period of seven days and it is not permitted (except under the exception of section 53) to obtain an average by taking into account, for the following week, a number of hours less than the regular workweek.
Proof of claim To claim payment of overtime, the Commission must be in a position to prove that the employee indeed worked those hours at the request of his employer or, at least, to his knowledge (see the interpretation in section 57 ALS).
Compensatory leave It is only at the request of the employee or in cases provided for by a collective agreement or decree that an employer may replace the payment of overtime by a paid leave. Therefore, he may not impose it, since the general rule is the payment of such hours, whereas the replacement by paid leave is the exception. Each time an employee works overtime, he may ask that the payment be replaced by a leave. However, it is up to the employer to make the final decision whether or not to grant the request. If he agrees to it, the leave must be taken within the twelve months following the overtime worked (subject to the provisions of a collective agreement or a decree), at a date agreed upon by the parties.
If the leave was not taken during that period, the hours must be paid at the end of the twelve months following the time they were worked. It should be noted that a collective agreement or a decree may provide the possibility of postponing the leave until the following year, for example.
If the parties have agreed upon the date for taking the leave, it is at that time that the compensatory indemnity becomes due.
Moreover, where the contract of employment is terminated before the employee has taken his leave at the agreed upon date, the overtime hours must be paid with the last payment of wages.