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(This pamphlet should be read in conjunction with
Pamphlet 4 of this series.)
Part III of the Canada Labour Code (Labour
Standards)
The Canada Labour Code provides for nine paid holidays
per year. The following questions and answers, based on Division V -
General Holidays of Part III of the Code, will be of
interest to employers and employees under federal jurisdiction.
Pamphlet 1 - Summary of this series describes the types of
businesses covered by the Code. It is available from any
Labour Program office of Human Resources Development Canada and on
the HRDC website.
1. What is a "continuous operation"?
A continuous operation is as follows:
- any industrial establishment in which, in each seven-day
period, operations once begun normally continue without
cessation until the completion of the regularly scheduled
operations for that period;
- any operations or services concerned with the running of
trains, planes, ships, trucks and other vehicles whether in
scheduled or non-scheduled operations;
- any telephone, radio, television, telegraph or other
communication or broadcasting operations or services; or
- any operation or service normally carried on without regard to
Sundays or public holidays.
The idea is that in these operations, they do not have the luxury
of shutting down for holidays or only operating during normal
business hours such as Monday to Friday from 9 to 5. These types of
operations run "continuously", without regard to holidays
or weekends. As a result, special provisions exist in the law to
accommodate these operations.
2. Are all employees in such industries considered under
a �continuous operation�?
Not always. For example, in some trucking enterprises, the
organization is divided into various components such as drivers,
loaders, dispatchers, mechanics, etc. Many of the above workers may
be necessary to the operation of the running of trucks, so are
considered to be employed in a "continuous operation".
For others, such as office staff, they usually work in support of
the operation by handling paperwork, billing, payroll, etc. Under
these circumstances, they are not considered to be employed in a
"continuous operation" since their presence is not
required outside of normal business hours to keep the trucks
running.
However, if they regularly need to work weekends and holidays,
take calls from drivers on the road, or are generally concerned with
dispatching, it may be appropriate to determine that certain office
staff are employed in a continuous operation.
3. If an employee's pay varies from day to day, how do I
calculate "a regular day's pay" for general holiday pay?
Under these circumstances, a regular day's pay is calculated by
taking an average of the last twenty days worked (not counting
overtime) before the holiday. A collective agreement may contain a
different method. This is acceptable under the Code.
4. Can I simply add a few cents to the mileage rate or
hourly rate instead so that it includes general holiday pay? What if
the employee agrees to a flat rate for each holiday?
The law does not allow general holiday pay to be included in a
per mile rate, or some other form of rate of pay. The regulations
say that a normal day's pay is calculated as in item 3 above. Even
if the employee agrees to an alternate arrangement, the law will not
allow the employee to settle for less than the minimum required by
law.
5. If an employee in a continuous operation refuses to
come to work as scheduled or books off on a general holiday, is the
employee still entitled to the general holiday pay?
No. If the employee is called to work on a general holiday and
does not come, or makes him/herself unavailable to work (booking
off), then the employee is not entitled to be paid for that day.
For example, if work is offered or available on a general holiday
and an employee "books off", then the employee is
considered to have made him/herself unavailable for work. The term
"booking off" may exist in certain industries that have
established a known practice that includes the ability of employees
to physically remove their name from the work schedule on certain
days. Under that industrial practice, an employee has now
"booked off" and made him/herself unavailable for work.
Simply stating a preference ahead of time as to days off does not
mean that an employee would refuse a shift if offered. The employee
must have actually turned down an available shift or not
reported for work after having been called to work on that general
holiday for denial of the general holiday pay to be effective.
6. What are the special provisions for general holiday in
a continuous operation?
The Code allows for flexibility in giving employees
their entitlement to general holidays, to accommodate the operation.
As a result, the employer chooses which of the following
entitlements an employee will be afforded:
- the employee may be given the general holiday off with pay; or
- the employee may be required to work on the general holiday
and receive a regular day's pay plus time and one-half for the
actual hours worked on the holiday; or
- the employee may be required to work on the holiday as a
regular work day, while getting a day off with pay at another
more mutually convenient time, usually by adding it to the
employee's vacation entitlement; or
- if there is a collective agreement in place that states that
the employee is paid for the first day on which the employee
does not work after that day.
For information only. For interpretation and application
purposes, please refer to Part III of the Canada Labour Code
(Labour Standards), the Canada Labour Standards Regulations,
and relevant amendments.
Additional copies of this publication can be obtained from:
Public Enquiries Centre
Human Resources Development Canada
140 Promenade du Portage, Phase IV, Level 0
Gatineau, Quebec
K1A 0J9
Fax (819) 953-7260
www.hrdc-drhc.gc.ca
�Her Majesty the Queen in Right of Canada, 2003
Cat. No. MP43-345/4-1-2003
ISBN 0-662-67259-3
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