4A - General Holidays - Continuous Operations

Pamphlet 4A - General Holidays - Continuous Operations

(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, are they 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 himself 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 themself unavailable for work. The term "booking off" may exist in certain industries that have established a known practice that includes the ability of an employee to physically remove their name from the work schedule on certain days. Under that industrial practice, an employee has now "booked off" and made themself 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 one was 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 has a choice of how he wishes to provide general holiday entitlements to an employee:

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 their 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:

Enquiries Centre
Human Resources and
Skills Development Canada
140 Promenade du Portage,
Phase IV, Level 0
Gatineau, Quebec
K1A 0J9

E-mail: publications@hrsdc-rhdcc.gc.ca
Fax: (819) 953-7260
http://www.hrsdc.gc.ca

N^o de catalogue : MP43-345/4-1-2003
ISBN : 0-662-67259-3