Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS

ESR Section 37.64 – Oil and gas field workers under section 37.6 - overtime wages 


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

The overtime provisions set out in section 40 of the Act do not apply to oil and gas field workers referred to in section 37.6 of the Regulation.

An employee must be paid overtime only when the amount of the salary plus overtime is greater than the amount of the salary plus bonus for a pay period. Employees who are entitled under the compensation system to receive a bonus must receive the greater of their salary plus bonus or their salary plus overtime for every pay period.


Text of Legislation

Oil and gas field workers under section 37.6 — overtime wages 

37.64  (1)  Section 40 of the Act [overtime wages] does not apply in respect of employees referred to in section 37.6 of this regulation but the conditions of employment respecting entitlement to overtime wages established in this section apply instead.

(2)  Subject to subsection (5), if an employee referred to in section 37.6 works over 8 hours a day, the employer must pay the employee as follows:

(a) 1 1/2 times the amount of the employee’s regular salary for the time over 8 hours;

(b) double the employee’s regular salary for any time over 12 hours.

(3)  Subject to subsection (5), if an employee referred to in section 37.6 works over 40 hours a week, the employer must pay the employee 1 1/2 times the employee’s regular salary for the time over 40 hours.

(4)  For purposes of calculating weekly overtime under subsection (3), only the first 8 hours worked by the employee in each day are counted, no matter how long the employee works on any day of the week.

(5)  If during the pay period in respect of which subsection (2) or (3) applies the employee is entitled under the compensation system to a bonus, allowance or remuneration, other than a bonus, allowance or remuneration that is based on geographic location of the employee’s residence, then the employer must pay the employee the greater of the following:

(a) the sum of that bonus, allowance or remuneration and the employee's regular salary for that pay period;

(b) the wages to which the employee is entitled for that pay period including the overtime wages under subsections (2) to (4).

(6)  For purposes of references in the Act, or in section 37.63 (3) of this regulation, to section 40 of the Act [overtime wages] or to "overtime wages", those references are to be read as references to the employee’s entitlement to overtime wages as established by this section.


Policy Interpretation

Subsection (1)

The overtime provisions set out in section 40 of the Act do not apply to oil and gas field workers referred to in s. 37.6 of the regulation. The provisions set out in this section apply instead.

Subsection (2)

An employee must be paid overtime only when the amount of the salary plus overtime is greater than the amount of the salary plus bonus for a pay period.

If an employee is entitled to a bonus under subsection 5, and the employee’s salary plus bonus is more than the employee’s salary plus overtime calculated under this subsection, subsection 5 applies. If the salary plus bonus is less than the salary plus overtime earned under this subsection, overtime must be calculated and paid as follows:

An employee under this section who works more than 8 hours in a day must be paid 1.5 times their regular salary for any time worked over 8 hours up to 12 hours in a day. The formula for calculating an employee’s regular hourly rate from his or her “regular salary” is set out in reg. 37.62.

An employee under this section who works more than 12 hours in a day must be paid double their regular salary for any time worked over 12 hours in a day.

Example

 

Sun.

Mon.

Tues.

Wed.

Thurs.

Fri.

Sat.

TOTAL

Hours worked

 

8

10

8

13

8

 

47

Regular rate

 

8

8

8

8

8

 

40

1.5 x regular rate

 

 

2

 

4

 

 

6

2 x regular rate

 

 

 

 

1

 

 

1

Overtime entitlement:

 

Daily overtime on Tuesday

2 hours @ 1.5 times (time worked over 8/day but less than 12/day)

Daily overtime on Thursday

4 hours @ 1.5 times (time worked over 8/day but less than 12/day)

 

1 hour @ 2 times (time worked over 12/day)

 
 

Subsections (3) and (4)

An employee must be paid overtime only when the amount of the salary plus overtime is greater than the amount of the salary plus bonus for a pay period.

If an employee is entitled to a bonus under subsection 5, and the employee’s salary plus bonus is more than the employee’s salary plus overtime calculated under this subsection, subsection 5 applies. If the salary plus bonus is less than the salary plus overtime earned under this subsection, overtime must be calculated and paid as follows:

An employee who works more than 40 hours in a week must be paid 1.5 times their regular salary for the time worked over 40 hours in the week. Under s.1 of the Act a “week” for purposes of weekly overtime is a period of 7 consecutive days beginning on Sunday at 12:01 a.m. and ending at midnight the following Saturday.

Only time worked within this 7-day period can be considered for the purposes of overtime. Therefore, if a shift straddling midnight ends on a Sunday the time worked on Sunday will be applied to the time worked on Saturday.

When calculating weekly overtime wages, only the first 8 hours worked each day are counted towards the 40 hours in the week.

Example

 

Sun.

Mon.

Tues.

Wed.

Thurs.

Fri.

Sat.

TOTAL

Hours worked

 

8

8

8

8

8

5

45

Regular rate

 

8

8

8

8

8

 

40

1.5 x regular rate

 

 

 

 

 

 

5

5

2 x regular rate

 

 

 

 

 

 

 

 

Overtime entitlement:
Weekly overtime on Saturday - 5 hours @ 1.5X (for the 5 hours over 40/week)

 

Example

 

Sun.

Mon.

Tues.

Wed.

Thurs.

Fri.

Sat.

TOTAL

Hours worked

6

10

4

14

8

8

4

54

Regular rate

6

8

4

8

8

6

 

40

1.5 x regular rate

 

2

 

4

 

2

4

12

2 x regular rate

 

 

 

2

 

 

 

2

Overtime entitlement:
When calculating overtime, daily overtime is calculated separately from weekly overtime.


Daily overtime on Monday

2 hours @ 1.5 times (time worked over 8/day)

Daily overtime on Wednesday

4 hours @ 1.5 times (time worked over 8 but less than 12/day)

 

2 hours @ 2 times ( time worked over 12/day)

Weekly overtime on Friday

2 hours @ 1.5 times (for the 2 hours worked over 40/week)

Weekly overtime on Saturday

4 hours @ 1.5 times (for the 4 hours worked over 40/week)

 
 

Subsection (5)

If an employee works overtime during a pay period and also earns a bonus, (excluding a bonus based on geographic location of the employee’s residence such as the Northern Allowance), the employer must pay the greater of the following amounts for that pay period:

  • the salary plus bonus, or
  • the salary plus overtime.

If the amount of the salary plus bonus is greater than the amount of the salary plus overtime, the employer must only pay the salary plus bonus, and is not required to pay overtime as well.

 Subsection (6)

Wherever the Act or the regulation refer to overtime wages in relation to oil and gas field workers, those references refer to the overtime entitlements established by this section, not to section 40 of the Act.


Related Information

ESA

  • s. 1, Definition of "week"
  • s. 40, Overtime

ESR

  • s.37.5, Oil and gas field workers paid by an hourly rate – exclusion from section 36(1) of the Act
  • s. 37.51, Specific oil and gas field workers paid by an hourly rate – rest periods and pay for interruption in rest periods
  • s. 37.61, Oil and gas field workers under section 37.6 – exclusion from section 36(1) of the Act
  • s. 37.62, Oil and gas field workers under section 37.6 – “regular salary”
  • s. 36.63, Oil and gas field workers under section 37.6 – paydays and bonus pay
  • s. 37.62, Oil and gas field workers under section 37.6 – overtime wages
  • s. 37.65, Oil and gas field vacuum workers under section 37.6 – rest periods and periods and pay for interruption in rest periods
  • s. 42, Exclusions from hours-of-work requirements

Appendix 3 – Oil & gas well drilling & servicing occupations - hourly rate of pay