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Guide Interpretation

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Part I - Act respecting labour standards

CHAPTER IV - Labour standards

Wages

Sections
39.1
40
40.1
41
41.1
42
43
44
45
46
47
48
49
50
50.1
50.2
51
51.0.1
51.1

Section 40

Minimum wage

The minimum wage payable to an employee shall be determined by regulation of the Government.

An employee is entitled to be paid a wage that is at least equivalent to the minimum wage.

Interpretation

Paying an employee a wage that is less than the minimum wage established by the regulation is prohibited.

The right to the minimum wage implies that employees must obtain the equivalent of the minimum wage for each hour worked, regardless of the payment method determined by the employer.

Learning or trial periods

"Learning", "initiation" or "trial" periods must be remunerated (see the presumption in subparagraph 4) of section 57 ALS). The Act does not allow an employer to impose, as a hiring condition, a period during which the acceptance of free work is obliged or imposed by the employer. Criteria such as subordination, control, availability and work may be used to establish the right to wages.

Moreover, certain exclusions exist for trainees or students who are following an apprenticeship or programme of vocational training recognized by law (see the interpretation of paragraphs 2) and 3) of section 2 RLS).

Voluntary work

It is sometimes hard to determine what constitutes voluntary work.  During the study on the definition of the term "employee" (s. 1, para. 10), it was mentioned that the Act respecting labour standards does not deny the existence of voluntary work. However, alleging that the smooth operation of the enterprise does not require the hiring of new employees, that the applicant(s) has (have) no experience or that the workers agreed to work for free does not justify non-compliance with labour standards. In this context, one cannot claim that the worker agreed to work on a voluntary basis.

Certain criteria may be used when analyzing a situation and determining whether a worker is carrying out work on a voluntary basis or if, on the contrary, he is carrying out the work without being paid even though he should be paid under the Act.

  • Is "the employee" performing any work whatsoever?
  • Is there a relationship of subordination between the employer and the "employee"? Must he comply with the employer’s requirements as to the way the work is carried out, the work schedule or his availability for work? Does the employer count on the employee’s services?
  • The type of undertaking may also prove to be pertinent. Thus, voluntary work should not exist in a profit-oriented undertaking.

Agreement of no effect

It should be reiterated that labour standards are of public order. Any stipulation or agreement which contravenes a labour standard is absolutely null (s. 93 ALS). The amount of minimum wage payable is a standard. Public order requires that the employee receive the minimum wage for all hours worked. Therefore, it is prohibited to stipulate a lower wage than that provided by the Act and its regulations; even more so, it is prohibited to stipulate that there will be no wage at all.

1979, c. 45, s. 40; 2002, c. 80, s. 9.

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