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Interpretation / jurisprudence

Interpretation: paid holidays, article 7.01

1. The compensatory leave for the National Holiday

The last subparagraph of article 7.01 of the decree indicates that the compensatory leave for the 24th of June is governed by the provisions of the National Holiday Act. Here is what is said in article 6 of the Act:

Compensatory holiday
Every employer must grant a compensatory holiday of a duration equivalent to a holiday regular day of work where the 24th of June falls on a day that is not a regular working day for the employee.
The compensatory holiday must, in all cases, be taken the working day preceding holiday or following the 24th of June. However, if, at that time, the employee is on annual leave, the holiday is taken at a date agreed upon by the employer and the employee.

Therefore:
1. The employer cannot pay the 24th of June if this holiday falls on a day which does not coincide with a working day, the employer must give a compensatory leave.
2. The compensatory leave must be given the working day preceding or following June 24 and not in the 3 weeks which precede or follow it.

2. Recovery of a holiday paid in addition to the minimum required by the decree

An employer pays the Good Friday and the Easter Monday. Three months later, he realises that the decree requires the payment of only one of these two holidays. The employer recovers the payment of one of the two holidays on the pay of July. Does he have the right to do this?

No. It is about a liberality which cannot be taken back by the employer. It is necessary for the Parity Committee to claim the amount withheld from the wages for July.

Also note that article 49 of An Act respecting labour standards forbids any deduction of pay which is not accepted by the employee.

3. The non permanent employee and the Statutory Holidays

The Decree provides that the employee who is not a regular employee is entitled to the same 8 statutory holidays than any employee under the jurisdiction of An Act respecting labour standards.

These holidays as well as the calculation of the indemnity and the compensatory holiday are defined at articles 7.07.1, 7.07.2 and 7.07.3.

4. Determination of the work shift

An employee begins his shift on June 30 at 22:00 hours and finishes it at 6:00 hours on July 1. Did the employee work the holiday? Does it have to be paid in time and a half for a worked statutory holiday?

Jurisprudence has shown that it is the beginning of the shift which determines the date. Thus in our example the 8 hours worked should appear on June 30 on the time sheet of the employer.

Jurisprudence:

"Where the issue before the board is to determine whether an employee who commences his shift on the day before a statutory holiday but who completes that shift in the early hours of the day on which the statutory holiday falls due, has worked on the "day" of the holiday, a majority of arbitrators have taken the position that the time the shift actually commenced, and not a period running from midnight to midnight, will determine the day the shift occurred and whether the employee worked on the day of the holiday".

Brown-Beaty, Canadian Labour Arbitration (third edition) p 4-21 (December 1995)

However, it is necessary nevertheless to take into account the system established by the employer for his pay records. If one cannot note a system in place, or in ambiguous cases, the Parity Committee will adopt the policy establishing the date of the shift according to the hour of its beginning. (Example: Work begun July 1 at 23:00 hours and finished on July 2 at 7:00 hours involves 8 hours paid at time and a half because worked on a holiday).

Interpretation: statutory holiday which coincides with a working day, article 7.02

1. Working day

To determine if the holiday coincides or not with a working day, see the interpretation of article 1.01, g)

2. Payment of a holiday which coincides with a working day

SECTION UNDER REVIEW

3. Carry over of a statutory holiday without written agreement

A) Carry over of a holiday to more than 3 weeks without written agreement:
The carry over of the holiday is regarded as non-valid: there is a claim for the holiday and the Parity Committee considers that the hours worked at the time of the holiday were due at the rate of time and a half.

B) Carry over of a holiday within 3 weeks without written agreement:
In the case of the carry over of holidays, which coincide with a working day, but without written agreement, the carry over will be regarded as non-valid. However, the Parity Committee will not claim compensation for the statutory holiday, but will regard the hours worked at the time of the holiday as being due at time and a half.

4. Payment of a statutory holiday carried over

When a holiday is carried over, the date of the statutory holiday is changed to the date to which the holiday is carried over. The calculation of the payment of a carried over holiday must thus be done on the basis of this new date. It is necessary to refer to the day to which it was carried over to calculate what the employee "would receive if the day had not been a holiday".

Interpretation: statutory holiday during a layoff, or absence, article 7.06

1. Payment for a holiday which falls during an absence

What is the payment for a holiday which falls during:

  • a) 14 days of authorised leave?
  • b) 13 days of illness?
  • c) 21 days of layoff?

One must initially determine whether the statutory holiday falls on a day usually worked by the employee. If so, article 7.02 applies, i.e. he or she must receive an indemnity for the holiday corresponding to the usual wages of that day.

If the employee normally does not work that day (see interpretation of article 1.01 g), article 7.05 applies, i.e. the employee is entitled to 10 or 20% of the pay of the previous period. In this case, if the employee did not have wages during the preceding pay period, the payment will be equal to zero.

2. Layoff on the working day which precedes 2 or 3 holidays

According to the third subparagraph of article 7.06, the employee laid off on the working day which precedes a holiday is entitled to the payment of this holiday. What occurs when 2 or 3 holidays are consecutive as December 24, 25 and 26, or on December 31, January 1 and 2?

Let us take the example of an employee laid off on December 23:
To be entitled to the payment of December 24, he or she must have worked the last working day which precedes, and the first working day which follows, except if the employee were laid off on the last working day which precedes (which is the case here), or the first day which follows.

In this example, the employee is thus entitled to the payment for December 24. Let us now pursue the reasoning for December 25.

To be entitled to the payment of December 25, the employee must have worked the last working day which precedes. Which is the last working day? Is this on December 24 or on December 23? The last working day is December 23. The 2 or 3 holidays of Christmas must be taken in a sequence, in a block. Indeed, if the working day which precedes December 25 were on December 24, all the employees who had December 24 as a paid holiday (not worked) would not be entitled to the paid holiday of December 25.

In short, 24, 25 and 26 December must be analysed in a block. The working day which precedes these three holidays is December 23 (or an earlier date) and the working day which follows is December 27 (or a later date). The same applies to December 31, January 1 and 2.

3. Layoff (article 7.06, 3rd and 4th subparagraphs)

The layoff which is mentioned in the 3rd and 4th subparagraphs does not have to be necessarily accompanied by a Record of employment. The fact of saying to an employee that there is no more work for the moment or that he or she will be called back, constitutes a layoff.

Interpretation: statutory holidays and the collective agreement, article 7.08

Different statutory holidays for unionised employees

For unionised employees, certain statutory holidays may be different from those envisaged in articles 7.01 and 7.07.1 of the decree. It is necessary however, that they be in equal number to those envisaged in article 7.08.

In this case, to know which holidays apply, it is necessary to refer to the collective agreement, which then has precedence over the decree.