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Maximum Hours of Work Before Overtime Applies - Act Part 4, Section 35

Last updated on April 1, 2021

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section establishes the maximum hours an employee can work before overtime is payable. 

Text of Legislation

35. (1) An employer must pay an employee overtime wages in accordance with section 40 if the employer requires, or directly or indirectly allows, the employee to work more than 8 hours a day or 40 hours a week.

(2) Subsection (1) does not apply for the purposes of an employee who is working under an averaging agreement under section 37.

Policy Interpretation

Subsection (1)

An employee who works more than 8 hours in a day or 40 hours in a week as required by an employer must be paid overtime rates as set out in s.40 of the Act. However, if an employee is working under an averaging agreement that has been established according to s.37 of the Act, the overtime provisions in s.37 apply.

See s.40 of the Act for information on calculating overtime rates.

For purposes of calculating overtime, the work week starts on Sunday at 12:01 am and ends at midnight the following Saturday.

This section of the Act establishes that where an employer allows an employee, directly or indirectly, to perform work, this time worked will be included in the hours of work calculation.

Example
Pat, a store clerk is scheduled to work from 9:00 am to 5:30 pm with a half hour unpaid lunch break, for a total of 8 hours worked. At 5:30 pm, Pat closes the store however, spends an additional half an hour doing the required cash out and bank deposit. Pat is entitled to receive pay for 8.5 hours worked, including overtime, one half hour at 1-1/2 X their regular rate of pay, for the half hour worked over 8 hours in the day.

Subsection (2)

Section 37 of the Act establishes different maximum hours of work before overtime applies than noted in subsection (1) and as such employees working under a s.37 averaging agreement are excluded from this section. An employee working under a s.37 averaging agreement is entitled to be paid overtime wages in accordance with that section.

Under s.72 an employer and any of its employees may join in a written application to the director to vary the provisions of s.35.

Employees covered by a collective agreement

If a collective agreement contains any provisions about hours of work or overtime that meet or exceed the requirements of Part 4, those provisions of the collective agreement replace the Act’s requirements for employees covered by the agreement. Otherwise, the Act’s requirements are deemed to be incorporated in the collective agreement.

Where there is a collective agreement, disputes respecting the application, interpretation or operation of Part 4 must be resolved through the grievance procedure, not through the enforcement provisions of the Act.

Certain employees are exempt from this section, or Part 4 entirely, under the Employment Standards Regulation.

Related Information

Related sections of the Act or Regulation

ESA

ESR