Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS
ESR Section 44 – Exclusions from overtime pay requirements
This regulation identifies when certain types of workers are excluded from the overtime provisions of s.40 of the Act.
44. Section 40 of the Act does not apply to any of the following:
(a) a bus operator
(i) while waiting during the course of a charter trip or excursion,
(ii) for lay-over time, or
(iii) for any time that the bus operator is not operating a bus, if the cause is completely beyond the employer's control;
(b) a truck driver or a truck driver's swamper or helper who, at a location more than 160 km from home, is employed on a truck that
(i) has a mechanical breakdown, unless
(A) the breakdown resulted from the employer's negligence, or
(B) the truck driver, swamper or helper was actively engaged in repairing the truck, or
(ii) is immobilized due to weather conditions, road blockage, an accident or any other cause completely beyond the employer's control;
(c) a miner employed underground for time spent underground after the miner's regular shift, if the cause is completely beyond the employer's control;
(d) a first aid attendant for any time spent accompanying a person being transported to a medical practitioner, hospital or other destination in the course of the attendant's first aid duties and while returning from the destination to the attendant's normal place of employment.
Definitions under the Employment Standards Regulation are interpreted narrowly because they take away benefits and protection conferred by the Act. For purposes of this section, the situation must meet the circumstances described before the employee is excluded from the overtime provisions in s.40.
The Employment Standards Act operates on the premise that employees are entitled to be paid for work performed. Under this section of the Regulation, it is recognized that there may be certain circumstances where an employee is not performing the normal functions of their job, through no fault of their own, nor due to circumstances that are under the control of the employer.
For purposes of calculating any overtime entitlement, the Director will not include any time spent in the situation(s) described in this section. While overtime rates do not apply, the employee may still be entitled to wages at regular rate, if the employee is at a place designated by the employer, and available for work.
(Refer to s.1(2) of the Act that states "an employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee's residence".)
The onus is on the employer to show that "the cause is completely beyond the employer's control."
Related sections of the Act or Regulation