More topics

Hours Free From Work - Act Part 4, Section 36

Last updated on April 1, 2021

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section requires an employer to provide its employees with a minimum number of hours free from work between shifts, on a weekly and daily basis. 

Text of Legislation

36. (1) An employer must either

(a) ensure that an employee has at least 32 consecutive hours free from work each week, or

(b) pay an employee 1 1/2 times the regular wage for time worked by the employee during the 32 hour period the employee would otherwise be entitled to have free from work.

(2) An employer must ensure that each employee has at least 8 consecutive hours free from work between each shift worked.

(3) Subsection (2) does not apply in an emergency.

Policy Interpretation

Subsection (1)(a)(b)

An employer must ensure an employee receives at least 32 consecutive hours away from work each week. For purposes of this section “week” is defined in s. 1 of the Act as a period of seven consecutive days beginning on any day. Since failing to receive 32 hours free from work often coincides with working overtime, and overtime is calculated on a week that runs from Sunday to Saturday, premium pay for the purposes of this section is calculated in the same manner.

If an employee does not have 32 consecutive hours free from work each week the employer must pay the employee 1.5 times the regular rate of pay for time worked during a 32-hour period sometime during the week. The Act does not specify a particular 32-hour period.

Example

Spencer works 7 days in a week starting at 9am each day as follows:

Days

S

M

T

W

T

F

S

= 34 hours

Hours

5

5

4

5

5

5

5

Spencer has not had a 32-hour break from work. To meet the requirements of this section, the employer may pay time-and-a-half for the four hours Spencer worked on Tuesday.

The payment of overtime wages under s. 40 of the Act may satisfy the requirement to pay 1 1/2 times an employee’s regular wage for hours worked during the 32 hour rest period. It is not required that an employer pay 1-1/2 times the regular wage to comply with this section in addition to the weekly overtime.

Example

Diane works seven days in a week starting at 9a.m. each day as follows:

Days

S

M

T

W

T

F

S

= 54 hours

Hours

8

8

8

8

6

8

8

Diane’s employer pays six hours of weekly overtime at time and one-half on Friday and eight hours of weekly overtime at time and one-half on Saturday (See s.40, Overtime wages.) By doing so, her employer has also complied with the requirements of this section.

For employees working under an averaging agreement under s.37 of the Act, s.37(8) and 37(9) apply with respect to the 32 hours free from work .

Subsection (2) (3)

An employer must ensure each employee be given eight hours off between shifts worked except in the case of an emergency. No additional pay is required if there is a contravention of this section, however, non-compliance may result in the issuance of a determination under s.79 of the Act, which includes a mandatory escalating monetary penalty.

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.36.

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