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Substituting Another Day for a Statutory Holiday - Act Part 5, Section 48

Last updated on April 1, 2021

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section outlines when an employer and an employee may substitute a different day for a statutory holiday. This section ensures that the employee is granted the same rights under the Act as if the substituted day were a statutory holiday. 

Text of Legislation

48. (1) An employer may for one or more employees at a workplace substitute another day off for a statutory holiday if the employer and the employee or a majority of those employees, as the case may be, agree to the substitution.

(2) Any employees affected by the substitution of another day for a statutory holiday have the same rights under this Act and their employer has the same duties under this Act as if the other day were a statutory holiday.

(3) An employer must retain for 4 years records of agreements made under subsection (1).

Policy Interpretation

An employer, with the agreement of an employee, or the majority of the employees, as the case may be, may substitute another day off for a statutory holiday. An agreement between an employer and one employee is permissible.

Example

Melissa asks her employer, Geoff, to substitute June 30, a Monday, for July 1, a Tuesday. Geoff agrees. Melissa takes June 30 off and is paid statutory holiday pay for the day, in accordance with s.45(1). Melissa works July 1 and is paid their regular wage for all hours worked.

This arrangement meets the intent of s.48 of the Act. Both the employer and the employee agree to the substituted day and the employee is granted the same rights under the Act as if the substituted day were a statutory holiday.

In the case of more than one employee, the majority of the affected employees must agree to the substitution.

A majority means more than 50% of those employees affected. Employees' wishes must be determined by democratic means and a written record must be kept of the decision-making process for the required 4 years pursuant to s.48(3).

When scheduling another day off for a statutory holiday, an employer must not unduly influence employees' wishes.

Employees covered by a collective agreement

If a collective agreement contains any provisions about statutory holidays that meet or exceed the requirements of Part 5, those provisions of the collective agreement replace the Act’s requirements for employees covered by the agreement. Otherwise, the Act’s requirements are deemed to be incorporated in the collective agreement.

Where there is a collective agreement, disputes respecting the application, interpretation or operation of Part 5 must be resolved through the grievance procedure, not through the enforcement provisions of the Act.

Related Information

Related sections of the Act or Regulation

ESA

ESR