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

Chapter IV - Larbour standards (Section 39.1 to 97)

Division II - Hours of work (Section 52 to 59.0.1)

Section 57

Working periods

An employee is deemed to be at work


Section 57 establishes, for each of the situations described in the four subparagraphs that make it up, a presumption that the employee "is deemed to be at work" (see the interpretation in section 55 ALS on overtime). This presumption may be overturned by evidence submitted by the employer. The evidence that the employer may submit ensues from the obligation that he has to establish the framework for the performance of the work in terms of what he asks the employee to do, how to do it, as well as the time that is to be devoted to this work. The employer has this obligation for each of the situations described in the four subparagraphs of this section.

  1. while available to the employer at the place of employment and required to wait for work to be assigned;


    This paragraph provides for three conditions of application:

    1. the employee must be at his employer’s disposal;
    2. the employee must be on the work premises; and
    3. the employee must be obliged to wait for work to be assigned.

    When these three conditions are met, the employee is deemed to be at work. This is a simple presumption, namely it may be overturned by another proof submitted by the employer as mentioned previously.

    The mandatory nature of the availability is a decisive factor. The voluntary availability that an employee offers to his employer out of professionalism or for another reason would not entail the application of section 57.

    This availability must be required by the employer as part of the performance of work. If the conditions of performance are such that this availability is required despite the fact that the employer did not request it expressly, the employee could benefit from the wages corresponding to the time devoted to the performance of his task, save for its unreasonable nature, which would then have to be demonstrated by the employer.

    Some facts may point to the existence of this obligation imposed on the employee. The normal work schedule, the nature of the undertaking’s activities and the quantity of work to be done during a given period are all criteria that should be analyzed.

    The idea is to evaluate the constraint imposed by the employer on the employee to reserve his availability during the stipulated period because he is likely to do the work required.

    On the subject of availability, it is important to take into account the global context of the situation. For example, a bus driver hired to do a trip extending over several days cannot be considered as being "at his employer’s disposal" twenty-four hours a day during the period in question.

    Moreover, an employee hired to meet the needs of the resident clientele of a residential centre, with the obligation of remaining on site during a specified work shift and of performing the necessary work when required, could be considered as being at his employer’s disposal. However, an employee with a pager and who is at home could not claim payment for his hours of availability given that he is not on the work premises.

    In the case of the caretaker of an apartment building, it may be hard to determine the number of hours devoted to work since he generally lives in the building for which he is responsible. Here once again, the employer must indicate to the employee the timeframe allocated for the work to be done. However, it may be necessary to evaluate the number of hours that the employee must devote to his work and the number of hours of availability required by the employer taking into account various elements such as the number of apartments, the nature of the building, the various tasks to be performed and their frequency, etc.

    However, it should be pointed out that the required availability cannot extend to the daily periods when the caretaker is in his apartment and he may be disturbed at various times. During these periods, it is only when the employee is called upon to perform precise tasks and which he has noted down or for which he can evaluate the time required for their performance, that the Commission can claim the corresponding wages.

  2. subject to section 79, during the break periods granted by the employer;


    This paragraph refers to all categories of breaks excluding the break for meals stipulated in section 79 ALS. This provision creates no obligation for the employer to grant his employees a coffee break. However, when he does, he must remunerate the employees for this period.

  3. when travel is required by the employer;


    Since May 1, 2003, the Act has stipulated that the time required for trips made at the employer’s request is deemed to be time devoted to work and gives entitlement to wages. The time devoted to the normal trip made by the employee, as for all employees in Québec, to travel to his place of work in the morning and to return home at the end of the day is not covered by this paragraph. However, any other travel situation required by the employer could be considered. See the general criteria for interpreting section 57 ALS as well as the interpretation given in section 85.2 ALS.

  4. during any trial period or training required by the employer.

    This paragraph establishes the interpretation found in the jurisprudence whereby an employee is entitled to receive a wage when he is taking part in a trial (see the interpretation of section 40 ALS) or training period done at the employer’s request, whether inside or outside the establishment. This time must be considered time worked. The Act does not permit the imposing as a hiring condition of a period during which free work is obliged or imposed by the employer (see the interpretation of section 85.2 ALS).

1979, c. 45, s. 57; 2002, c. 80, s. 15.