Act respecting labour standards Chapter IV - Larbour standards (Section 39.1 to 97)

Application of workweek

The number of hours of the regular workweek determined in section 52 does not apply, as regards the computing of overtime hours for the purpose of the increase in the usual hourly wage, to the following employees:

Interpretation

The length of the regular workweek determined in section 52 (40 hours) does not apply to the workers mentioned in this provision for the purposes of increasing the wage rate. They must, however, be remunerated for the hours worked over and above 40 hours per week, but at the regular rate, without an increase. In all cases, whatever the employee’s remuneration method (by the hour, the week or other), he must receive at least the minimum wage for all of the hours worked, even those exceeding 40 hours per week, unless it is an employee excluded from the application of the minimum wage.

1. (Paragraph repealed).
2. a student employed in a vacation camp or in a social or community non-profit organization such as a recreational organization

   Interpretation

   The number of hours of the regular workweek does not apply to a student employed in a vacation camp, whether it is profit-oriented or non-profit. Nor does it apply to a student employed in a social or community non-profit organization, such as a recreation centre.

   The intention of the legislator is to focus the source of the exception on the goal sought by the employer organization and not on the work done by the student for the organization.

   The recreation department of a city or a municipality

   In the case where a city or a municipality hires students by way of its recreation department, the situation may be analyzed from two different standpoints depending on the internal organization of the municipality:

   1. The recreation department is a distinct legal entity
      Frequently, the recreation department working in a city is a separate legal entity. This non-profit organization is independent, separate from the city itself. It does not generate a profit; its social and community vocation is obvious. Hence, a student working within the framework of such a structure is subject to the exception stipulated in subparagraph 2) of section 54 ALS (also see the interpretation of subparagraph 2) of section 77 ALS and of paragraph 1) of section 2 RLS).
   2. The city or the municipality hires directly
      The situation differs when the city, without going through an "intermediary", proceeds directly and for its own benefit to hire a student.

      Despite the fact that the social vocation of the city is recognized in that it is acting on behalf of the municipal community, its activities and powers are very broad. The various purposes of all its activities do not meet the definition of a "social or community non-profit organization" within the meaning of subparagraph 2) of section 54 (also see the interpretation of subparagraph 2) of section 77 ALS and of paragraph 1) of section 2 RLS).

3. the managerial personnel of an undertaking

   Interpretation

   The managerial personnel of an undertaking, referred to in the third paragraph, is someone who has a decision-making power and who acts as the employer’s representative in its relations with the other employees. It should be recalled that “intermediary” or “junior” managerial personnel are referred to here, since under paragraph 6) of section 3 senior managerial personnel are excluded from the application of the Act respecting labour standards.

   The notion of managerial personnel has been studied many times in judicial precedents. The title is not necessarily a criterion. Certain criteria of appreciation have been elaborated in order to determine whether the duties of an employee correspond to those carried out by a member of managerial personnel:

   • Relations with senior management: participation in decisions, the preparation of the employer’s policies, etc.;
   • The powers granted by senior management: responsibility for the establishment (opening – closing), autonomy with respect to orders, advertising, power to sign cheques or other documents, etc.;
   • The powers held over other employees: hiring, dismissal, reprimand, supervision, power to give orders, ability to set conditions of employment, control over or authorization of absences, vacations and expenses, etc.;
   • Conditions of employment: schedules and vacations, method of remuneration, own office, etc.

4. an employee who works outside an establishment whose working-hours cannot be controlled;

   Interpretation

   The aim of this exception is not to exclude all employees working outside the employer’s establishment. The notion of "whose working hours cannot be controlled" is therefore decisive.

   In order for the exception to apply, it must be absolutely impossible for the employer to exercise a control over his employee’s work schedule. It is not enough for the employer to ignore or not count the working hours. When the employer has the possibility of knowing the work schedule, of verifying how the employee uses his time and of imposing certain obligations in this respect, the employee’s working hours can be controlled within the meaning of the Act.

   Consequently, the exception is only applicable in those cases where the employee is entirely free to come and go without the employer having the possibility of controlling his working hours. See the exception to the application of the minimum wage provided for in paragraph 4) of section 2 RLS in the case of an employee remunerated entirely on commission who works in a commercial activity outside the establishment and whose working hours cannot be controlled.

5. an employee assigned to canning, packaging and freezing fruit and vegetables during the harvesting period;
6. an employee of a fishing, fish processing or fish canning industry;
7. a farm worker;

   Interpretation

   
   A farm worker (see the interpretation at the start of the division on wages under section 39.1 ALS) is a person who performs farm-related tasks as part of a farming operation.

   In the expression "farm worker", the dominant aspect is growing. The tasks for which he is hired must be of a farming nature. To be able to consider an employee a farm worker, he must participate in working the soil and the land with a view to producing plants or animals. An employee who devotes all of his work time in the fields to ornamental crops would be considered a farm worker. However, the proportion of time devoted to other duties may result in the exception related to a farm worker not being applicable.

   To determine if you are in the presence of a farming operation, it is necessary to look for the goal, the main purpose of the operation in question. This analysis must be made according to the normal and usual activities of the undertaking.

   The jurisprudence considers that the operation of a farm comprises not only the exploitation of the proceeds of the soil but also the raising of farm animals and the sale of cultivated products. When it is a corporation that operates the farm, this operation must be its main activity; otherwise the exclusion does not apply.

   Farm workers are also referred to in section 78 ALS.

8. (Paragraph repealed).
9. an employee whose exclusive duty is to take care of or provide care to a child or to a sick, handicapped or aged person, in that person’s dwelling, including, where so required, the performance of domestic duties that are directly related to the immediate needs of that person, unless the work serves to procure profit to the employer.

   Interpretation

   Since June 1, 2004, the length of the regular workweek has not applied to an employee who takes care of or provides care to a child, a sick, handicapped or aged person when three conditions are met:

   1. The employee must take care of or provide care to the person in the person’s dwelling;
   2. The employee must perform this work on an exclusive basis; and
   3. This work must not serve to procure profit for the employer.

   These three conditions are explained in the interpretation of paragraph 2) of section 3 ALS.

However, the Government may, by regulation, prescribe the number of hours it determines as the regular workweek for the categories of employees mentioned in subparagraphs 2, 5 to 7 and 9 of the first paragraph.

1979, c. 45, s. 54; 1986, c. 95, s. 202; 1990, c. 73, s. 16; 1999, c. 40, s. 196; 2002, c. 80, s. 14.

Interpretation

While the regular workweek of forty hours set in section 52 of the Act does not apply to these employees, the government reserves the right to set by regulation a regular workweek that it will determine, where necessary, for the employees referred to in subparagraphs 2), 5), 6), 7), and 9) of section 54 ALS.