Including work on a holiday in overtime calculation

Question: If an employee works on a statutory holiday, should I include the hours worked when calculating any overtime pay owing to the employee for the week?

Answer: The answer depends on the jurisdiction in which the employee works since statutory holidays are covered by the Canada Labour Code (for federally regulated employees) and provincial/territorial employment/labour standards laws. Please review the table below for the rules in each jurisdiction.

Jurisdiction

Hours worked on
holiday included when calculating overtime

Hours worked on
holiday excluded when calculating overtime

Canada Labour Code

x

Alberta

x1

British Columbia

x2

Manitoba

x3

New Brunswick

x

Newfoundland and Labrador

x

Northwest Territories

x

Nova Scotia

x

Nunavut

x

Ontario

x4

Prince Edward Island

x5

Quebec

x

Saskatchewan

x

Yukon

x


*Notes

1. If the employee is paid at least 1.5 times his regular rate for the hours worked.

2. If an employee earns statutory holiday pay and weekly overtime pay, the employer is not required to pay both. The B.C. Employment Standards Interpretation Guidelines Manual states, “Where an employee earns two combined entitlements, they do not ‘double up’ but, rather, the employee would get paid in a fashion that provides the greater benefit to the employee.”

3. The Employment Standards Code is unclear on this issue. Employment Standards has indicated that its administrative policy for dealing with overtime in a week in which a statutory holiday occurs is as follows: If an employee works on a statutory holiday and receives premium pay for those hours, the hours worked are excluded from the overtime calculation. However, the hours paid for the statutory holiday are included. Employers are advised to contact Employment Standards if they have questions on the policy.

4. In Ontario, if an employee works on a statutory holiday and receives premium pay for those hours, the hours worked on the holiday are excluded from the overtime calculation. If an employee works on a statutory holiday and receives regular pay for those hours along with a substitute day off work, the hours worked on the holiday are included for the calculation of overtime.

5. The Prince Edward Island Employment Standards Act does not specifically address this issue. However, we have received information from Employment Standards that its policy is to exclude statutory holidays (worked or not worked) when calculating overtime for the week in which the holiday occurs. For more information, please contact Employment Standards.

Choosing a day for a substituted holiday

Question: If an employer in a workplace with no collective agreement wants to substitute another day for a statutory holiday, does it need the employees’ permission?

Answer: In general, employers need employees’ permission. Here is more detail on what is required in each jurisdiction across the country:

Canada Labour Code: At least 70 per cent of employees affected by the change must agree to it.

Alberta: Employers may substitute a statutory holiday for another day if they clearly inform their employees in advance and the employees do not lose their entitlement to any of the statutory holidays because of the substitution.

British Columbia: A majority of employees affected by the change must agree to the substitution of the day.

Manitoba: A majority of employees affected by the change must agree to it in writing.

New Brunswick: Employees must agree to it.

Newfoundland and Labrador: A majority of employees must agree to it.

Northwest Territories: A majority of employees must agree to it. If they do, the employer may apply to the Employment Standards officer to substitute another designated holiday for any statutory holiday.

Nova Scotia: A majority of employees affected by the change must agree to it. If they do, the employer may apply in writing to the director of Labour Standards for permission to make the substitution.

Nunavut: A majority of employees affected by the change must agree to it. The employer must also apply to the Labour Standards officer for permission to make the change.

Ontario: The employer may provide the substituted day off no later than three months after the holiday or, with the employee’s written agreement, no later than 12 months after the holiday.

Prince Edward Island: The employer and the employees must agree on the substituted day.

Quebec: Employers must provide the day off within three weeks before or after the actual holiday in a workplace without a collective agreement. This does not apply to the national holiday, which falls on June 24. For the national holiday, the substitute holiday must be taken on the working day before or after June 24.

Saskatchewan: A majority of employees affected by the change must agree to it. The employer must also apply to Employment Standards for a permit allowing for the substitution.

Yukon: A majority of employees affected by the change must agree to it.

Annie Chong is the manager of the payroll consulting group at Carswell, a Thomson Reuters business. She can be reached at annie.chong@thomsonreuters.com or (416) 298-5085

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