Entitlement to Statutory Holiday - Act Part 5, Section 44

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section identifies when an employee is eligible for statutory holiday pay for one of the “statutory holidays” named in s.1 of the Act.

Text of Legislation

44. An employer must comply with section 45 or 46 in respect of an employee who has been employed by the employer for at least 30 calendar days before the statutory holiday and has

(a) worked or earned wages for 15 of the 30 calendar days preceding the statutory holiday, or

(b) worked under an averaging agreement under section 37 at any time within that 30 calendar day period.

Policy Interpretation

Under the definition of “statutory holiday” in section 1 of the Employment Standards Act, there are 11 named statutory holidays as shown below:

Statutory Holiday	Date
New Year’s Day	January 1st
Family Day	The Third Monday in February
Good Friday	the Friday before Easter Sunday. Easter Sunday is the first Sunday after the full moon on or following March 21st, or one week later if the full moon falls on Sunday.
Victoria Day	the first Monday before May 25th
Canada Day	July 1st (If July 1st falls on Sunday, Monday July 2nd replaces July 1st as Canada Day)
BC Day	the first Monday in August
Labour Day	the first Monday in September
National Day for Truth and Reconciliation	September 30th
Thanksgiving Day	the second Monday in October
Remembrance Day	November 11th
Christmas Day	December 25th

Subsection 44 (a) & (b)

It is a minimum requirement that an employee must be employed at least 30 calendar days in order to qualify for a statutory holiday

If an employee performs work on a statutory holiday but has not been employed for at least 30 calendar days, they are compensated in the same manner as any other working day
If a statutory holiday falls on an employee’s day off and they have not completed 30 days of employment, they are not entitled to receive any statutory holiday pay for the day.

If an employee has been employed at least 30 calendar days then one of two conditions must be met before the employee is entitled to statutory holiday pay:

has worked or earned wages on at least 15 of the 30 calendar days preceding the statutory holiday; or
has worked or earned wages under s.37 of the Act (Agreements to Average Hours of Work)

Note: “earned wages” includes paid vacation days and statutory holidays.

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.

Subsection (b)

Where an employer and an employee have made a written agreement to average the employee’s hours of work under s.37 of the Act, the employee qualifies for the statutory holiday even if they have not worked or earned wages on 15 of the 30 calendar days preceding the statutory holiday.

Example

Employees working in the food plaza of a shopping centre have signed an averaging agreement with their employer in accordance with s.37 of the Act.

The averaging agreement consists of two weeks on/two weeks off in a 4-week period as shown below:

Two weeks on/Two Weeks off - Four-week schedule to be repeated

	Sun	Mon	Tue	Wed	Thu	Fri	Sat
Week 1		12	12	12	12	12	10
Week 2		12	12	12	12	12	10
Week 3
Week 4

Exemptions: Some occupations are exempt from statutory holidays, and some have special rules. A “manager”, for example, as defined in s.1 of the Employment Standards Regulation is exempt from Part 5 in its entirety. Other occupations are also identified in the Employment Standards Regulation.

Employees covered by a collective agreement

If a collective agreement contains any provisions about statutory holidays that meet or exceed the requirements of Part 5, those provisions of the collective agreement replace the Act’s requirements for employees covered by the agreement. Otherwise, the Act’s requirements are deemed to be incorporated in the collective agreement.

Where there is a collective agreement, disputes respecting the application, interpretation or operation of Part 5 must be resolved through the grievance procedure, not through the enforcement provisions of the Act.