Overtime Employment Standards – Construction Industry

Overtime requirements for construction jobs in the Province of Manitoba are governed either by the Employment Standards Code or The Construction Industry Wages Act (CIWA). For construction jobs that fall outside of CIWA, generally, employers must pay their employees overtime if they exceed 8 hours per day and 40 hours per week. However, Averaging Agreements and Averaging Permits allow for employees to work over the standard hours set out in the Employment Standards Code subject to specific rules.

The standard hours of work for the construction industry are as follows:

• Residential Construction/Home Building Sector
  • 8 hours per day and 40 hours per week
• Landscaping
  • Same as residential construction/home building sector but varied from April 15 to November 30 each year (10 hours per day, 50 hours per week and 2,080 hours per year)
  • According to the Employment Standards postings, a landscaping business involves construction or maintenance of a landscape, including lawn cutting, fertilizing, applying sod and controlling weeds. They do not include the maintenance or cleaning of parking lots or snow removal, or working with inventory or customers at a gardening/landscaping retail outlet.
• Industrial, Commercial, and Institutional Construction Sector (Falls under CIWA)
  • 10 hours per day and 40 hours per week
• Heavy Construction Sector (Falls under CIWA)
  • 50 hours per week outside of Winnipeg
  • 50 hours per week in Winnipeg from April 1 to October 31
  • 48 hours per week in Winnipeg from November 1 to March 31 the following year

Any hours worked in excess of these standard hours must be paid at 1 ½ times the employee’s regular wage rate as overtime.

Construction jobs that fall under the CIWA are not eligible for an Averaging Agreement as the standard hours are set out above. Construction jobs that are exempt from the CIWA are the:

• House building sector (minus major building construction projects);
• Renovations and redecorations (unless there is structural or architectural work);
• Onsite maintenance by regular maintenance staff;
• In-shop prefabrication of structures (both whole and partial prefabrication); and
• Construction of farm buildings.

To assist in determining whether a specific type of job falls within the CIWA and under which heading, click here (https://web2.gov.mb.ca/laws/statutes/ccsm/c190.php?lang=en) to view the definitions section of the Act or contact the Manitoba Employment Standards Branch.

Overtime Arrangements

Working overtime will arise out of an agreement between the employee and the employer, the employee voluntarily working overtime at the request of an employer, or in declared emergencies. An employee cannot work overtime without the permission of their employer. Some construction jobs are governed by collective agreements that specify different hours or employees may have an Individual Flextime Agreement with their employer which can also differ from the standard hours set out above.

Arrangements can be made between the employee and the employer for overtime hours to be banked for paid time off. If this agreement is made, every hour of overtime worked will amount to 1 ½ hours of paid vacation time banked at the regular wage rate. The employee then must take the banked time off within 3 months of the time being earned unless the Employment Standards authorizes a longer period. This time off must also occur during the employee’s regular working hours. If the banked time is not used within the 3 month period, the employer will pay out the remaining banked time at the regular wage rate.

Averaging Agreement

For employees to qualify to enter into an Averaging Agreements with their employer, they must work at least 30 hours a week regularly and they cannot be part of a union. The employees cannot fall under any of the sectors covered by The Construction Industry Wages Act. The Averaging Agreement can be entered into by employers and an individual employee or a group of employees without approval from Employment Standards. This Agreement will change the standard of hours worked up to a maximum of 12 weeks in one cycle. Employees can be required to work up to 12 hours a day and 60 hours a week over this 12 week cycle, but the average hours per week must be 40 hours or less. The following is a list of requirements that the Averaging Agreement must have:

• Must be in writing;
• Be made at least one week before the new schedule beings;
• Specify the employee or group of employees the agreement applies to;
• Be signed by the employer and employee or by at least 75% of affected employees;
• Specify the start and end dates, to a maximum of three years;
• Specify the length of the averaging cycle to a maximum of 12 weeks;
• Specify the new work schedule to reflect daily and weekly hours; and
• Be posted on the premises where the affected employees can see it. If employees do not work in a common location, a written agreement should be provided to each affected employee.

An employee can still be entitled to overtime pay if they work over the standard hours set out in the Averaging Agreement. This is calculated by taking the number of weeks in a cycle and multiplying it by 40 hours per week to get the maximum regular hours in a cycle. If an employee works over the maximum regular hours in a cycle, they are entitled to be paid 1 ½ times their regular hourly wage for every hour of overtime worked.

For more information on Averaging Agreements click here (insert link: https://www.gov.mb.ca/labour/standards/doc,averaging_agreements,factsheet.html#q2113)

Averaging Permits

If an employer seeks to propose an agreement that exceeds the 12 hours a day, 60 hours a week, or the 12 week cycle, they must submit an application to Employment Standards for an Averaging Permit. An employee survey must be conducted of all of the employees affected by the proposed agreement. A minimum of 75% of employees must agree to the proposed agreement for the permit to be granted. The maximum period of the permit remains at 3 years and the average of the cycle must also be 40 hours per week.

An employee can still be entitled to overtime pay if they work over the standard hours set out in the Averaging Permit. For every hour of overtime worked the employee is entitled to 1 ½ times their regular hourly wage.

For more information on Averaging Permits or to download the application form, click here (https://www.gov.mb.ca/labour/standards/doc,varying_hours_work,factsheet.html)

If you have any further questions or need advice about your particular situation, please contact our office.