Statutory Holiday Pay - Act Part 5, Section 45
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.
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
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
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.
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.
An employee 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, their day off. Although the employee doesn't perform any work on this day, they're entitled to a paid statutory holiday because they have:
- 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; (The employee worked 19 eight-hour shifts in the 30 calendar days preceding New Year’s Day plus they were entitled to an average day’s pay for Christmas Day.)
The employee is entitled to be paid the following for January 1:
Normal hourly rate: $15.00/hr
Wages earned on 19 working days: $2,280.00
Statutory holiday pay received for Christmas Day (8 hours x $15.00): $120.00
Total wages for 30 day period: $2,400.00
Divided by 20 (days worked and Christmas Day statutory holiday pay earned)
[$2,400 ÷ 20 days] = $120.00
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 sections of the Act or Regulation
- s.1, Definition “statutory holiday”
- s.3, Scope of this Act
- s.44, Entitlement to statutory holiday
- s.46, If an employee is required to work on statutory holiday
- s.48, Substituting another day for a statutory holiday
- s.57, Annual Vacation
- s.1, Definition “farm worker”
- s.1, Definition “manager”
- s.34.1, Farm workers
- s.36, Exclusion from statutory holiday pay requirements
- s.37, Fishers
- s.37.8, Exclusions – high technology companies
- s 37.9, Silviculture workers
- s.37.14, Commission Sales