Plenty of exceptions to overtime rules

Different standards exist from province to province

Overtime legislation is nothing new in Canada — it’s been around since the early 1900s, and has transformed and evolved over the years.

Each province has its own set of employment standards that dictate minimums for work hours and overtime (see table). However, there are many exceptions to the rules such as collective agreements, ministerial permits and emergency situations.

“While employment standards have similarities, there are nuances,” said Deborah Zinni, assistant professor of the faculty of business at Brock University in St. Catharines, Ont. “It really depends on the party in place, lobby groups that are active at the time and the needs of the province. It’s a very tough balancing act for the government, keeping in mind the employee and employer, small or large, and the ability to pay.”

Federal legislation for overtime is covered under Part III of the Canada Labour Code, which applies to about 12,000 enterprises subject to federal jurisdiction, including banks, telecommunications or broadcasters, postal services, pipeline companies, airlines and road transportation.

This code applies to the Canadian Imperial Bank of Commerce, which was recently hit with a $600-million unpaid overtime lawsuit by bank teller Dara Fresco. (See story on page 1.) Since Fresco has chosen to take the civil procedure route in her overtime lawsuit, Human Resources and Social Development Canada (HRSDC) is “watching it with interest to see how it unfolds,” said Bruce Boughen, manager of labour standards operations, labour program at HRSDC in Ottawa.

But the government does not often see complaints against financial institutions, he said. On average, the federal labour program receives about 600 complaints per year for failure to pay overtime and about 80 per cent of these are legitimate cases. The recovery rate on wage complaints (which can include pay for vacation, termination, severance, bereavement or overtime) is fairly decent, as the government met its target to recover 75 per cent of all money owed last year.

Over the past three years, Boughen said overtime complaints have stayed at about the same level, with no marked increase. For the most part, it’s a case of an error or misunderstanding by employers and once it’s brought to their attention, they fix it right away.

“Like everything else, 80 per cent of the problems come from 10 per cent of clients,” he said.

But Zinni said some organizations still have a 1950s mentality in the workplace and try to manipulate the system or misuse the manager title to get around overtime (because most legislation does not cover managers or supervisors), while others don’t have a proper HR department to watch for legislative changes.

There also “might be a discrepancy between the requirement of law and your policy,” said Zinni. For example, a provincial government may set the standard work week at 44 hours while the employer states its usual hours are 37.5 hours.

Ultimately the issue has a lot to do with how an employee is treated at work, said Zinni.

“If managers treat you well and it’s flexible and there’s give and take, employees don’t mind doing extra,” she said. “If rules aren’t equally enforced across an organization, you’re going to end up with disgruntled people.”




LEGISLATIVE LANDSCAPE

Hours of work and overtime legislation in Canada

JurisdictionStandard hoursMaximum hours
Federal8/day, 40/week48/week
Alberta8/day, 44/week12 consecutive
British Columbia8/day, 40/weekN/A
Manitoba8/day, 40/weekN/A
New Brunswick44/weekN/A
Newfoundland and Labrador40/week14/day
NWT and Nunavut8/day, 40/week10/day, 60/week
Nova Scotia48/weekN/A
Ontario44/week8/day*, 48/week
P.E.I.48/weekN/A
Quebec40/weekN/A
Saskatchewan8/day, 40/week44/week
Yukon8/day, 40/weekN/A


*Or employee’s regular work day if more than eight hours.

Note: Some exceptions apply to federal Labour Code and provincial employment standards.

Source: Human Resources and Skills Development Canada

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