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How to apply public (statutory) holidays on a non-working day

Written with Yosie Saint-Cyr

In general, under Employment/Labour Standards legislation, when public (statutory) holidays fall on non-working days, the employer must provide a substituted day off, which is another working day off work designated to replace a public holiday. Employees are entitled to be paid public holiday pay or an average day’s pay or regular pay for a substituted holiday depending on the province or territory of employment. However, many jurisdictions have public holiday provisions different from this general rule.

This article briefly sets out the minimum requirements and variations by jurisdiction that employers must follow under employment/labour standards legislation regarding public holidays that fall on non working days.

In the federally regulated jurisdiction. Under the Canada Labour Code , employers are required to provide employees with a day off with regular pay on a public holiday. The public holiday provisions of the Code do not apply to employers and employees who are parties to a collective agreement that provides rights and benefits greater than those in the Code and where there is provision for third party settlement.

As a rule, if a public holiday falls on a Saturday or Sunday for an employee (whether full-time or part-time), the employee is entitled to a holiday with pay on the working day immediately preceding or following the public holiday.

If one of the above holidays fall on a non-working day other than Saturday or Sunday, then a holiday with pay is to be added to the employee’s annual vacation or granted at another mutually convenient time.

When the parties are subject to a collective agreement, the employer may substitute any other holiday for a public holiday provided for in the Code, if the substitution is agreed to in writing by the employer and the trade union. In the case of employees who are not subject to a collective agreement, an employer may substitute any other holiday for a public holiday if the substitution has been approved by at least 70 percent of the affected employees. The employer must post a notice of the substitution for at least 30 days before the substitution takes effect.

In Ontario. Employers are required to provide employees with a day off with public holiday pay on a public holiday.

As a rule, if a holiday falls on a day that is not ordinarily a working day for the employee or during a vacation, the employer must either (a) provide another day off with public holiday pay, not later than three months after the public holiday, or no later than 12 months with the employee’s consent; or (b) if the employer and employee agree, pay public holiday for the day.

In Alberta. Employers are required to provide employees with a day off with an average day’s pay (regular wages) on a public holiday.

As a rule, if a public holiday falls on a non working day (other than vacation) for an employee (whether full-time or part-time), for most employees this is Saturday or Sunday, the employee is not entitled to a holiday with pay and the employer is not required to provide a substituted day off with pay. Eligible employees are entitled to the day off with pay only if the public holiday falls on a day that is normally a working day for employees.

However, if an employer and employees’ want to substitute another day for the public holiday, this arrangement is acceptable if employees are clearly informed in writing prior to the change and employees do not lose any public holiday entitlements because of this change. Also, employers are allowed to provide a greater benefit than the minimum requirement afforded in the Code and could offer employees entitlement to a holiday with pay on the working day immediately preceding or following the public holiday that falls on a non working day such as Saturday and Sunday.

In British Columbia. Employers are required to provide employees with a day off with an average day’s pay on a public holiday.

As a rule, when a public (statutory) holiday falls on a non working day, an eligible employee is entitled to an average day’s pay and the employer does not have to provide another day off.

However, an employer and an employee or employees can agree to substitute another day off for a public holiday. The Act and Regulation apply to the substitute day as if it were a public holiday. Also, employers are allowed to provide a greater benefit than the minimum requirement afforded in the Act and could offer employees entitlement to a holiday with pay on the working day immediately preceding or following the public holiday that falls on a non working day such as Saturday and Sunday.

In Manitoba. Employers are required to provide employees with a day off with regular pay on a public holiday.

As a rule, when a holiday falls on a non working day, employees are entitled to a substituted day off with regular wages no later than their next annual vacation or at a time agreed to with the employer. However, if New Year’s Day, Canada Day or Christmas Day falls on a Saturday or Sunday that is not a normal working day, employees must be provided a day off with regular wages on the first working day after the holiday.

An employer may substitute another day for a holiday if this is done in accordance with a collective agreement, with the agreement of the union or, if no union exists, with the agreement of a majority of the employees.

In Saskatchewan. Employers are required to provide employees with a day off with either regular pay or public holiday pay on a public holiday.

When a public (statutory) holiday falls on a non working day, an entitled employee must receive the regular daily wage.

As a rule, where the following public (statutory) holiday falls on a Sunday (e.g.: New Year’s Day, Christmas Day or Remembrance Day), the holiday is to be observed on the following Monday, except for establishments normally open on Sundays. The Act does not mention Saturday.

However, The Director of Labour Standards may authorize that a public holiday be observed on a specified working day other than the public holiday. Employers can apply for a permit from the Director of Labour Standards allowing the public holiday to be observed on another day. The Director may order that the holiday be observed on another day if a majority of the employees agree. If the employees are represented by a trade union, the trade union and the employer may agree in writing to observe the public holiday on another day.

In New Brunswick. Employers are required to provide employees with a day off with regular pay on a public holiday.

Holiday provisions under the Employment Standards Act do not apply where a collective agreement provides for at least six paid holidays, including New Brunswick Day, or provides for vacation and holiday benefits which together equal or exceed the legislated minimum. A payment of three percent of gross wages is considered equivalent to the holiday provisions of the Act. Employees must nevertheless be paid at least 1½ times their regular rate of wages for the time worked on a public holiday.

As a rule, if the holiday falls on a non working day or an employee’s vacation, the employer must designate a working day no later than the employee’s next vacation to be deemed as a public holiday. However, the employer, with the agreement of employee or the employee’s representative, can pay regular wages for the holiday and not provide another day off.

If the holiday falls on a working day, an employer may substitute another working day for the holiday with the agreement of the employee. This day must be scheduled no later than the next vacation of the employee.

In Newfoundland and Labrador. Employers are required to provide employees with a day off with regular pay on a public holiday.

As a rule, when a holiday falls on a non-working day, the employee is entitled to have his or her next working day off or another day off as agreed upon by the employer and the employee. Where a public holiday occurs during an annual vacation, the latter must be extended by one working day.

A collective agreement may provide for holidays that differ from the public holidays described in the Act. However, a provision in a collective agreement is void if it reduces or tends to reduce the number of annual public holidays to which an employee would be entitled under the Act.

In Nova Scotia. Employers are required to provide employees with a day off with pay on a public holiday.

As a rule, if a holiday falls on a non-working day, employers must grant their employees a substituted day off with pay either (a) on the first working day after the holiday; (b) on the day immediately following the annual vacation; or (c) on another time mutually agreed upon.

An employer may substitute a holiday for another day where:

  • a class of employees are represented by a trade union and the parties to a collective agreement notify the Director of Labour Standards in writing that a specified day has been designated in the collective agreement as a holiday in lieu of a general holiday under the Code; or
  • employees are not represented by a union, or a collective agreement does not provide for general holidays, and the employer applies to the Director of Labour Standards to substitute another day for a holiday designated under the Code. The Director of Labour Standards must be satisfied that a majority of the affected employees agree before approving the substitution.

In Prince Edward Island. Employers are required to provide employees with a day off with regular pay on a public holiday. Employees covered by a collective agreement are exempted from the holiday provisions of the Act.

As a rule, if a holiday falls on a non-working day, the employer must grant the employee a day off with pay on the next working day after the holiday, on the first day after the employee’s vacation or on another day mutually agreed upon. If a holiday occurs during an employee’s vacation, the period of vacation is extended by one working day.

In Quebec. Employers are required to provide employees with a day off with an average daily pay on a public holiday.

The public holiday provisions of the Act do not apply to employees covered by a collective agreement or a decree who are entitled to at least the same number of paid holidays, in addition to the National Holiday, as are provided in the legislation. The same applies to other employees in the same establishment who are entitled to a number of days off with pay, in addition to the National Holiday, at least equal to what is provided in the collective agreement or decree.

As a rule, when a public holiday falls on a non working day, an eligible employee is entitled to an average day’s pay and the employer does not have to provide another day off.

When the National Holiday (June 24) falls on a Sunday. It is on Sunday, June 24th that Québec’s employees will celebrate the national holiday. This leave is no longer postponed until Monday, June 25th except for those employees who do not ordinarily work on Sunday. If an employee must work in an establishment where, due to the nature of the activities, work is not interrupted on June 24th, his employer must grant him a paid leave on the working day preceding or following June 24th, or pay him the indemnity stipulated in the Act. If an employee is on holidays on June 24th, his employer must grant him the compensatory holiday on a date agreed upon between them or pay him the stipulated indemnity.

When a public holiday occurs while an employee is on annual vacation, he or she must be provided either with holiday pay; or a substituted holiday of one day on a date mutually agreed upon by the employer and employee or fixed by a collective agreement or a decree.

Also, employers are allowed to provide a greater benefit than the minimum requirement afforded in the Act and could offer employees entitlement to a holiday with pay on the working day immediately preceding or following the public holiday that falls on a non working day such as Saturday and Sunday.

In Nunavut. Employers are required to provide employees with a day off with regular pay on a public holiday.

As a rule, Where the holiday falls on a non-working day, the employee must be paid for the holiday or receive a day off with pay at some other time convenient for him or her and the employer. This day off must be scheduled not later than the employee’s next annual vacation or the termination of his or her employment.

In addition, the Act allows a holiday to be substituted for another day during the year where:

(a) a class of employees are represented by a trade union and the parties to a collective agreement notify the Labour Standards Officer in writing that a specified day has been designated in the collective agreement as a holiday in lieu of a general holiday under the Act; or,

(b) employees not represented by a union, or a collective agreement does not contain provisions regarding general holidays, and an employer applies to the Labour Standards Officer to substitute another day for a holiday designated under the Act. The Labour Standards Officer must be satisfied that a majority of the affected employees agree before approving the substitution.

In the Yukon. Employers are required to provide employees with a day off with regular pay on a public holiday.

As a rule, when a holiday falls on a non-working day, the employee is entitled to have his or her next working day off or another day off as agreed upon by the employer and the employee. Where a public holiday occurs during an annual vacation, the latter must be extended by one working day.

A collective agreement may provide for holidays that differ from the public holidays described in the Act. However, a provision in a collective agreement is void if it reduces or tends to reduce the number of annual public holidays to which an employee would be entitled under the Act.

In the Northwest Territories. Employers are required to provide employees with a day off with regular pay on a public holiday.

As a rule, where the holiday falls on a non working day, the employee must be paid for the holiday or receive a day off with pay at some other time convenient for him or her and the employer. This day off must be scheduled not later than the employee’s next annual vacation or the termination of his or her employment.

In addition, the Act allows a holiday to be substituted for another day during the year where:

(a) a class of employees are represented by a trade union and the parties to a collective agreement notify the Labour Standards Officer in writing that a specified day has been designated in the collective agreement as a holiday in lieu of a general holiday under the Act; or,

(b) employees not represented by a union, or a collective agreement does not contain provisions regarding general holidays, and an employer applies to the Labour Standards Officer to substitute another day for a holiday designated under the Act. The Labour Standards Officer must be satisfied that a majority of the affected employees agree before approving the substitution.

It is always a good idea to carefully check the applicable legislation and/or collective agreement if the environment is a unionized one, as there may specific agreed upon rules that cannot be ignored.

if you want to know more about the rules such as what is considered pay for the public holiday? and how to calculate public holiday pay? among others, please consult the following First Reference publication, The Human Resources Advisor, Ontario, Western or Atlantic Editions. To know how to draft a public holiday policy and cover all your bases, consult the Human Resources PolicyPro, Alberta, British Columbia, Manitoba & Saskatchewan, Ontario, Atlantic Editions.

Christina Catenacci and Yosie Saint-Cyr
First Reference Human Resources and Compliance Editors

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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