Canada Labour Standards Regulations

6 (1) Where the nature of the work in an industrial establishment necessitates that the hours of work of certain employees be irregularly distributed with the result that those employees

• (a) have no regularly scheduled daily or weekly hours of work, or

• (b) have regularly scheduled hours of work that vary in number from time to time,

the hours of work of each of those employees in a day and in a week may be calculated as an average over an averaging period of two or more consecutive weeks.

(2) The averaging period referred to in subsection (1) may be changed in accordance with these Regulations, but shall not exceed the number of weeks necessary to cover the period in which fluctuations in the hours of work of the employees take place.

(3) Before averaging hours of work under subsection (1) or changing the number of weeks in the averaging period, the employer shall, at least 30 days before the date on which the averaging or the change takes effect,

• (a) post a notice of intention to average hours of work or change the number of weeks in the averaging period, containing the information set out in Schedule IV; and

• (b) provide a copy of the notice to the Head of Compliance and Enforcement and every trade union representing any affected employees who are subject to a collective agreement.

(4) Where averaging of hours of work is in effect, the employer shall post a notice containing the information set out in Schedule IV.

(5) Where the parties to a collective agreement have agreed in writing to average the hours of work of employees or to change the averaging period and the written agreement is dated and contains the information set out in Schedule IV, the employer need not satisfy the requirements of subsections (3) and (4).

(6) Where the hours of work of employees are calculated as an average pursuant to subsection (1),

• (a) the standard hours of work of an employee shall be 40 times the number of weeks in the averaging period;

• (b) the maximum hours of work of an employee shall not exceed 48 times the number of weeks in the averaging period; and

• (c) the overtime rate referred to in paragraph 174(1)(a) of the Act shall be paid or, subject to subsection 174(2) of the Act, the time off referred to in paragraph 174(1)(b) of the Act shall be granted for those hours worked in excess of the standard hours of work referred to in paragraph (a), excluding those hours for which a rate at least one and one-half times the regular rate of wages has been paid prior to the end of the averaging period.

(7) Subject to subsection (8), the standard hours of work and the maximum hours of work calculated in accordance with subsection (6) shall be reduced by eight hours for every day during the averaging period that, for an employee, is a day

• (a) of annual vacation with pay;

• (b) of general or other holiday with pay;

• (c) of leave of absence with pay under subsection 205(2) of the Act;

• (d) of personal leave with pay;

• (e) of leave for victims of family violence with pay;

• (f) of bereavement leave with pay;

• (f.1) of medical leave of absence with pay; or

• (g) that is normally a working day in respect of which the employee is not entitled to regular wages.

(8) The standard hours of work and the maximum hours of work calculated in accordance with subsection (6) shall not be reduced by more than 40 hours for any week that, for an employee, is a week

• (a) of annual vacation with pay;

• (b) of leave of absence with pay under subsection 205(2) of the Act;

• (c) that is normally a working week in respect of which the employee is not entitled to regular wages;

• (d) of leave for victims of family violence with pay; or

• (e) of medical leave of absence with pay.

(9) The standard hours of work and the maximum hours of work calculated in accordance with subsection (6) shall be reduced by 40 hours for every period of seven consecutive days, in the averaging period, during which an employee is not entitled to regular wages.

(10) Where an employee whose hours of work are averaged pursuant to subsection (1) terminates the employee’s employment during the averaging period, the employer shall pay the employee’s regular rate of wages for the actual hours worked during the completed part of the averaging period.

(11) If, during the averaging period, an employer lays off or terminates the employment of an employee whose hours of work are averaged under subsection (1), the employer shall pay the employee at the overtime rate of wages established under paragraph 174(1)(a) of the Act for any hours worked, but not previously paid, in excess of 40 times the number of weeks in the completed part of the averaging period.

(12) An employer who has adopted an averaging period under subsection (1) shall not alter the number of weeks in the averaging period or cease to calculate the average hours of work of employees unless the employer has, at least 30 days before making either change,

• (a) posted a notice of the change; and

• (b) provided a copy of the notice to the Head of Compliance and Enforcement and every trade union representing any affected employees who are subject to a collective agreement.

(13) If, before the end of an averaging period, an employer alters the number of weeks in the averaging period applicable to employees or ceases to calculate the average hours of work of employees, the employer shall, for each hour worked in excess of 40 times the number of weeks in the completed part of the averaging period,

• (a) pay those employees at the overtime rate referred to in paragraph 174(1)(a) of the Act; or

• (b) subject to subsection 174(2) of the Act, grant those employees time off in accordance with paragraph 174(1)(b) of the Act.