Administrative Monetary Penalties (Canada Labour Code) Regulations

Administrative Monetary Penalties (Canada Labour Code) Regulations Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, pursuant to section 270a of the Canada Labour Codeb, makes the annexed Administrative Monetary Penalties (Canada Labour Code) Regulations. S.C. 2017, c. 20, s. 377 R.S., c. L-2 Definition of Act In these Regulations, Act means the Canada Labour Code. Designations The following are designated as violations that may be proceeded with in accordance with Part IV of the Act: the contravention of any provision of Part II of the Act, or of any Regulations made under that Part, that is specified in column 1 of Part 1 or 2 of Schedule 1; the contravention of any provision of Part III of the Act, or of any Regulations made under that Part, that is specified in column 1 of Part 1 or 2 of Schedule 2; the contravention of any direction issued under any provision of Part II of the Act that is specified in column 1 of Part 3 of Schedule 1; the contravention of any order made under any provision of Part II of the Act that is specified in column 1 of Part 4 of Schedule 1; the contravention of any order made or issued under any provision of Part III of the Act that is specified in column 1 of Part 3 of Schedule 2; and the failure to comply with any condition of a permit issued under section 176 of the Act, as specified in column 1 of Part 4 of Schedule 2. Types of violations A violation related to any provision specified in column 1 of a Part of Schedule 1 or 2 is classified as a Type A, B, C, D or E violation as specified in column 2 of the respective schedule. Amount The amount of the penalty for each violation is the sum of the baseline penalty amount determined under section 5 and the history of non-compliance amount, if any, determined under section 6. Baseline penalty amount The baseline penalty amount for a violation is the amount set out in column 3 of Part 2 of Schedule 3 that corresponds to the category of the person or department that is believed to have committed the violation and the type of violation the person or department is believed to have committed, as set out in columns 1 and 2, respectively, of that Part. History of non-compliance amount If the person or department that is believed to have committed the violation has a history of non-compliance, the history of non-compliance amount is equal to twice the baseline penalty amount determined under section 5. History of non-compliance A person or department has a history of non-compliance if, in the five years preceding the day on which the notice of violation is issued, the person or department was issued a notice of violation for a violation that was of the same type or of a type of a greater gravity and the person or department was ultimately considered, under section 289 or 290 of the Act, to have committed the violation or there was a final determination, under section 284 or 287 of the Act, that the person or department committed the violation; was found guilty of an offence; or was subject to an order made under section 153 of the Act. Idem For the purposes of subsection (2), the gravity of violation types increases in alphabetical order; and a violation, offence or order is taken into account only if it relates to the same Part of the Act – or any regulation made under the same Part – as the violation set out in the notice of violation. Early payment A person or department named in a notice of violation for a Type A, B or C violation may pay an amount equal to one half of the penalty, in complete satisfaction of the penalty, within 20 days after the day on which the notice is served. Date of payment Payment is deemed to be made if the payment is sent by regular mail, on the day indicated on the postmark stamped on the envelope or, if no postmark is legible, on the day on which the payment is received by the Department of Employment and Social Development; if the payment is sent by registered mail or courier, on the day indicated on the receipt issued by the post office or the courier or, in the absence of a receipt, on the day on which the payment is received by the Department of Employment and Social Development; or if the payment is made electronically, on the day indicated by the electronic system used by the Department of Employment and Social Development for the purpose of receiving electronic payments. Manner of service Subject to subsection (2), a notice of violation issued under subsection 276(1) of the Act is to be served in the case of an individual, by leaving a copy of it with the individual at any place or with someone who appears to be an adult member of the same household at the individual’s last known address or usual place of residence, by sending a copy of it by registered mail or courier to the individual’s last known address, usual place of residence, place of business or workplace, or by sending a copy of it by fax or other electronic means to the individual; and in the case of any other person or a department, by leaving a copy of it with the person’s or department’s authorized representative or with an officer or other individual who appears to direct or control the head office or place of business of the person or department or the authorized representative, by sending a copy of it by registered mail or courier to the person’s or department’s authorized representative or to the head office or place of business of the person or department or the authorized representative, or by sending a copy of it by fax or other electronic means to an individual referred to in subparagraph (i). Substitutional service If a person or department cannot reasonably be served by any method listed in subsection (1), the person or department may be served by leaving a copy of the notice of violation at the person’s or department’s last known address or place of business or, in the case of an individual, at the individual’s usual place of residence or workplace. Proof of service Service may be proved by an acknowledgement of service signed by or on behalf of the person or department served, specifying the date and location of service; a certificate of service signed by the person who effected the service, stating that service was made on the person or department named in the certificate and indicating the means by which and day on which service was effected; or a record of electronic transmission setting out the date and time of transmission. Date service effective Service is deemed to have been effected in the case of service by registered mail or courier and in the absence of an acknowledgement of service or a certificate of service, on the seventh day after the day on which the notice is sent, as indicated on the receipt issued by the post office or the courier; or in the case of service by fax or other electronic means, despite sections 2 and 3 of the Electronic Documents and Electronic Information Regulations, on the day on which it is sent, as indicated on the record of electronic transmission. Manner A request for review made under section 281 of the Act must be in writing and must contain a statement of the grounds of review. Calculation and determination For the purpose of section 288 of the Act, the regular rate of wages of an employee who is paid on a basis other than an hourly rate of wages is calculated or determined in accordance with this section. General 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 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. Alternative four-week period 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. Employee paid on commission basis Subject to subsections (5) and (6), if the employee’s wages are 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 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. Collective agreement 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. Minimum wage In the following circumstances, an employee’s regular rate of wages is the minimum wage rate referred to in Part III of the Act: 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 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. Excluded amounts 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. Definition of week For the purposes of this section, week means the period between midnight on Saturday and midnight on the immediately following Saturday. Other information The following information is prescribed for the purposes of section 295 of the Act: the city, town or other locality and the province in which the employer is located; in the case of a violation related to the contravention of an order or a direction, information about the circumstances that gave rise to the making or issuance of the order or the issuance of the direction, as the case may be; whether the employer has complied with the provision, order or direction that gave rise to the violation and, if applicable, the date of that compliance; whether the employer has paid the penalty and, if applicable, the date when the payment was made; if applicable, the date of the review decision; and if applicable, the date of the appeal decision. Type A violations Designations, under section 2, of contraventions and failures as violations that are classified, under section 3, as Type A violations are not effective until the first anniversary of the day on which these Regulations come into force. S.C. 2017, c. 20 These Regulations come into force on the day on which section 377 of the Budget Implementation Act, 2017, No. 1 comes into force, but if they are registered after that day, they come into force on the day on which they are registered. [Note: Regulations in force January 1, 2021, see SI/2020-74.] The following definitions apply in this Schedule. business means a person other than an individual. (entreprise) large business means any business that is not a micro business or a small business. (grande entreprise) micro business means any business that, at the time a notice of violation is issued under subsection 276(1) of the Act, has fewer than five employees or, at the end of its last fiscal year before a notice of violation is issued, has less than $30,000 in annual gross revenue. (micro entreprise) small business means any business, other than a micro business, that, at the time a notice of violation is issued under subsection 276(1) of the Act, has fewer than 100 employees or, at the end of its last fiscal year before a notice of violation is issued, has less than $5 million in annual gross revenue. (petite entreprise) Part 1 of Schedule 2 to the Administrative Monetary Penalties (Canada Labour Code) Regulations3 is amended by adding the following after item 48: SOR/2020-260 Item 463 of Division 1 of Part 2 of Schedule 1 to the Administrative Monetary Penalties (Canada Labour Code) Regulations6 is replaced by the following: Item 488 of Division 1 of Part 2 of Schedule 1 to the Regulations is replaced by the following: Item 509 of Division 1 of Part 2 of Schedule 1 to the Regulations is replaced by the following: Division 1 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 534: Division 1 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 550: Item 628 of Division 1 of Part 2 of Schedule 1 to the Regulations is repealed. Item 633 of Division 1 of Part 2 of Schedule 1 to the Regulations is repealed. Item 80 of Division 2 of Part 2 of Schedule 1 to the Regulations is replaced by the following: Item 121 of Division 2 of Part 2 of Schedule 1 to the Regulations is replaced by the following: Division 2 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 130: Division 2 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 135: Item 734.1 of Division 4 of Part 2 of Schedule 1 to the Regulations is replaced by the following: Item 749 of Division 4 of Part 2 of Schedule 1 to the Regulations is replaced by the following: Division 4 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 796: Division 5 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 279: Division 5 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 345: Division 5 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 360: Item 109 of Division 6 of Part 2 of Schedule 1 to the Regulations is replaced by the following: Item 125 of Division 6 of Part 2 of Schedule 1 to the Regulations is replaced by the following: Division 6 of Part 2 of Schedule 1 to the Regulations is amended by adding the following after item 166: Part 1 of Schedule 2 to the Administrative Monetary Penalties (Canada Labour Code) Regulations2 is amended by adding the following after item 28: Part 1 of Schedule 2 to the Regulations is amended by adding the following after item 42: Division 1 of Part 2 of Schedule 2 to the Regulations is amended by adding the following after item 31: