Canada Occupational Health and Safety Regulations

20.1 (1) For the purposes of section 146.5 of the Act, the regular rate of wages of an employee who is paid on a basis other than an hourly rate is calculated or determined in accordance with this section.

(2) Subject to subsections (4) to (6), if the employee worked for at least one hour during the four-week period preceding a week in which the employee attends the appeal proceeding as a party or in response to a summons by the Board, the employee’s regular rate of wages for that week is calculated by dividing the wages that the employee earned in that period by the hours that they worked during the same period, excluding overtime hours.

(3) Subject to subsections (4) to (6), if the employee did not work for at least one hour in the period referred to in subsection (2) but did work for at least one hour in the preceding four-week period, their regular rate of wages is calculated using the formula set out in subsection (2) but in respect of the preceding four-week period.

(4) Subject to subsections (5) and (6), if the employee is paid, in whole or in part, on a commission basis and the employee has completed at least 12 weeks of continuous employment for their employer, the employee’s regular rate of wages for the week in which the employee attends the appeal proceeding as a party or in response to a summons by the Board is calculated by dividing the amount of wages that they earned in the 12-week period preceding that week by the number of hours that the employee worked during that period, excluding overtime hours.

(5) Subject to subsection (6), if a collective agreement that is binding on the employee and employer sets out a regular rate of wages that is applicable to the employee, or a method for calculating it, that rate, or the rate calculated following that method, is the employee’s regular rate of wages.

(6) In the following circumstances, an employee’s regular rate of wages is the minimum wage rate referred to in Part III of the Act:

• (a) the employee’s regular rate of wages cannot be calculated or determined in accordance with any of subsections (2) to (5) because the employer is not required, under paragraph 24(2)(d) of the Canada Labour Standards Regulations, to keep records of hours worked by the employee each day and the employer cannot otherwise determine the number of hours that the employee worked during the applicable period; or

• (b) the employee’s regular rate of wages, as calculated or determined in accordance with any of subsections (2) to (5), is less than that minimum wage rate.

(7) For the purposes of subsections (2) to (4), vacation pay, general holiday pay, personal leave pay, pay for leave for victims of family violence, bereavement leave pay, overtime pay and pay received under section 146.5, subsection 205(2) or 251.12(5) or section 288 of the Act are not taken into account in the calculation of wages earned.

(8) For the purposes of this section, week means the period between midnight on Saturday and midnight on the immediately following Saturday.