Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 5 - STATUTORY HOLIDAYS

ESA Section 45 – Statutory holiday pay


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains how pay for a statutory holiday is calculated for employees who are either given a day off on a statutory holiday, or given a different day off instead of the statutory holiday. 


Text of Legislation

45. (1) An employee who is given a day off on a statutory holiday, or is given a day off instead of the statutory holiday under section 48, must be paid an amount equal to at least an average day's pay determined by the formula

amount paid ÷ days worked

where
amount paid

is the amount paid or payable to the employee for work that is done during and wages that are earned within the 30 calendar day period preceding the statutory holiday, including vacation pay that is paid or payable for any days of vacation taken within that period, less any amounts paid or payable for overtime, and

days worked

is the number of days the employee worked or earned wages within that 30 calendar day period.

(2) The average day's pay provided under subsection (1) applies whether or not the statutory holiday falls on the employee's regularly scheduled day off.


Policy Interpretation

Subsections (1) & (2)

An employee who is not eligible for a statutory holiday under s.44 of the Act is not entitled to statutory holiday pay whether or not the statutory holiday is worked. They are entitled to be compensated in the same manner as any other working day.

An employee who is entitled to a statutory holiday in accordance with s.44 must be paid at least an average day’s pay. This applies whether the statutory holiday falls on the employee’s working day or if the employee has the statutory holiday off work. In both cases, even if no work is actually performed on the statutory holiday, the employee is entitled to an average day’s pay.

Shift straddling midnight:

Part 5, Statutory Holidays refers to “calendar days” and therefore if the shift straddling midnight ends on the 30th calendar day preceding the statutory holiday the time worked on that calendar day will be considered part of the 30 calendar day period.

Calculating an “average day’s pay”

An average day’s pay is calculated by dividing the amount paid or payable in the 30 calendar days before the statutory holiday by the number of days worked, as noted below:

  • “Amount paid” includes regular wages, commissions, statutory holiday pay and annual vacation pay, but does not include overtime pay. Payments from benefit plans are not considered wages for the purposes of this section.
  • “Days worked” includes, for the purposes of this section, any days when wages were earned. This would include days of paid annual vacation, or other paid statutory holidays that occur in the 30 calendar days prior to the statutory holiday.

Example

Jenny works in the hospitality industry and has normally scheduled days off on Thursday and Friday. January 1, New Year’s Day (a statutory holiday), falls on Thursday, her day off. Although she does not perform any work on this day Jenny is entitled to a paid statutory holiday because she has:

  • been employed at least 30 calendar days before the statutory holiday; and
  • worked or earned wages in at least 15 of the 30 calendar days preceding the statutory holiday; 19 8-hour shifts in the 30 calendar days preceding January 1 plus one paid statutory holiday (Christmas Day).

    Jenny is entitled to be paid the following for January 1:

Normal hourly rate: $12.00/hr

Wages earned on 19 working days: $1824.00

Statutory holiday pay received for December 25 (8 hours x $12.00): $96.00

Total wages preceeding 30 day period: $1920.00

Divided by days worked and days of earned wages (December 25)
[$1920 ÷ 20 days] = $96.00

Note:
If the statutory holiday falls on an employee’s day off, the employer is not required to give another day off.

Statutory holiday falls during an annual vacation

If a statutory holiday to which an employee is entitled falls during a period of vacation, their vacation time or pay should not be reduced as a result of the statutory holiday. If the employee is eligible for the statutory holiday in accordance with s.44, the employee would be entitled to an average day’s pay in accordance with s.45 of the Act.

Employees covered by a collective agreement

Under s.3 of the Act, where a collective agreement contains any provision respecting statutory holidays, the provisions of this section do not apply. If a collective agreement does not contain any provision respecting statutory holidays, Part 5 is deemed to be incorporated in the collective agreement as part of its terms.

Where there is a collective agreement, the enforcement of matters relating to Part 5 is through the grievance procedure, not through the enforcement provisions of the Act.


Related Information

Related sections of the Act or Regulation

ESA

ESR

Other

See Employment Standards Factsheets

Factsheets

Statutory Holiday Dates

Statutory Holidays

Commissioned Sales

High Technology Professionals

High-End Commission Sales

Collective Agreements and the Employment Standards Act