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:
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.
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 8 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.
“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).