Interpretation Guidelines Manual
|ESA Section 46 - If employee is required to work on statutory holiday|
Text of Legislation
This section explains the statutory holiday wages that must be paid to eligible employees who work on statutory holidays.
(a) 1 1/2 times the employee's regular wage for the time worked up to 12 hours,
(b) double the employee's regular wage for any time worked over 12 hours, and
(c) an average day's pay, as determined using the formula in section 45 (1).
An eligible employee, as noted in s.44, who works on a statutory holiday is entitled to time and one-half for the first 12 hours worked and double time for any work over 12 hours. They are also entitled to an average day's pay in accordance with s.45 of the Act.
Tony, working in the hospitality industry and entitled to statutory holidays under section 44 of the Act, is given December 25 (Christmas Day) as a day off but is required to work on New Year's Day, January 1. Tony works 10 hours on January 1. He worked 19 8-hour shifts in the 30 calendar days preceding January 1 and had one paid statutory holiday (Christmas Day).
This employee is entitled to be paid the following for January 1:
Normal hourly rate: $12.00/hour
Wages earned on 19 working days: 19 days x 8 hours x $12.00 = $1824.00
Statutory holiday pay received for December 25: 8 hours x $12.00 = $ 96.00
Total Wages in preceding 30 day period: = $1920.00
divided by 20 days worked and paid for [$1920/20 days] = $ 96.00
Wages earned on January 1: 10 hours @ 1-1/2X $12.00 = $ 180.00
Average day's pay based on above calculation = $ 96.00
Total statutory holiday wages owing = $ 276.00
What wages are owed to an employee whose shift starts on a statutory holiday but finishes on a regular working day?
What wages are owed to an employee whose shift starts on a regular working day but ends on a statutory holiday?
If a shift continues over midnight but started on the day before the statutory holiday, there is no entitlement to statutory holiday pay even for the hours of work actually performed on the statutory holiday (because the start of the shift commenced on the day before the statutory holiday.
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
Statutory Holiday Dates
Collective Agreements and the Employment Standards Act