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Holiday
Information…
A
reference guide for businesses on statutory holiday legislation…
IMPORTANT:
Businesses may be
affected by a variety of legislation.
Labour legislation will be a consideration for all businesses
while retail, service, hospitality and related businesses must also
consider the provisions of the Retail Business Holiday Act and its
affect on the ability of a business to be open to the public
. PERSONNEL
& STAFFING ISSUES: What
are the public holidays here?
From a
business perspective, the answer depends on whether the business is
governed by federal or provincial labor law.
For example, many in the transportation and communications fields
are regulated under federal law which has slightly different provisions
than Ontario law. Since
most local businesses are the subjects of Ontario law, the information
summarized here is based on the laws of this province.
The Province of Ontario recognizes eight paid public or
"statutory" holidays every year:
•
New
Year's Day •
Good Friday
• Victoria
Day
• Canada
Day
• Labour
Day • Thanksgiving
Day
•
Christmas
Day
•
Boxing Day (December 26)
Of
these holidays, some are observed strictly on a specific date no matter
what day of the week they happen to fall on.
New Year's, Canada Day, Christmas and Boxing Day are observed as
they occur. Good Friday is
perhaps the most confusing to calculate as the date is fixed according
to the lunar cycle each year. The Victoria Day holiday is the first
Monday before May 24th and Labour Day is always the first Monday in
September. Thanksgiving Day
is always the second Monday in October.
A few other peculiarities occur around such dates as Easter
Monday and Remembrance Day. They
may affect the operation of schools, banks, some levels of government
and a few collective agreements in unionized workplaces but they are not
general business holidays. One
other exception remains: Civic
Holiday. Observed on
the first Monday each August, this date is not a statutory holiday, is
unique to Ontario, and not is affected by provisions of the Retail
Business Holidays Act. It is for this reason that various retail establishments
often open on the date featuring sales or special promotions
Who
qualifies for a paid public holiday?
A
full-time or part-time worker must satisfy three criteria in order
to receive a "paid holiday":
1) the
employee must have been employed for 3 months or more.
2) the
employee must have earned wages on at least 12 days during
the four workweeks before the holiday.
3) the employee must have worked on his/her regularly scheduled
day
before and after the holiday.
Who
doesn't qualify for a paid public holiday?
Some
workers do not qualify for a paid public holiday even though they meet
all 3 criteria listed above. If
it is the employees' decision
to accept or turn down work that is offered, the employee may not
qualify for holiday pay. For
example, an "on call" worker such as someone working for a
temporary help agency and working by assignment.
Other ineligible workers include:
-
professionals such as doctors, lawyers and teachers
- taxi drivers
- apartment
building superintendents or caretakers who live in
the
building
- students who
instruct or supervise children or work at a camp
or
recreational program for a charitable organization
- domestic
workers who work less than 24 hours per week
- babysitters
and companions
- commercial
fishers and some farm workers
- commissioned
sales people who normally work away from their
employer's
place of business (except route sales people)
- workers in
landscape of gardening who grow flowers, trees or
shrubs
for sale.
Can
an employer ask employees to work on a public holiday?
It
depends! Some
employees may be required to work on a public holiday while others get a
choice. Workers in the
following businesses may be required to work on a holiday:
- hotels,
motels, tourist attractions and resorts
- restaurants
and taverns
- hospitals
and nursing homes
- continuous
operations such as an oil refinery or a security
company.
In other types of businesses, employees may decided whether to work
or not. In cases
where trade unions represent workers, the union may decide on behalf of
those it represents.
How
do you pay an employee whose regular work schedule means working on a
paid holiday?
The
employee gets regular wages for all hours worked on the holiday BUT
still has a right to another work day off with pay.
This is called a "substitute holiday".
Employers are required to see that any substitute holidays are
taken before the employee's yearly vacation.
How
does an employer compensate an employee who works on a public holiday
but doesn't want a substitute holiday?
The
employee gets one and one-half times the regular wage for regular hours
worked on the holiday AND a regular day's pay to cover the holiday not
taken.
If
an employee doesn't qualify for a paid public holiday, is the employee
required to work on the holiday?
Yes,
the employee must work if required by the employer to do so.
The employee must be paid at the rate of one and one-half times
regular pay for all hours worked on the holiday provided that no
substitute holiday is to be given.
CAUTIONS!
The
information contained in this article is provided only as a reference
tool and is condensed from information obtained from the Ontario
Ministry of Labour. The
Chamber strongly suggests that any business seeking detailed information
should consult the Ministry. The
Ministry of Labour's Employment Standards Information Centre will answer
questions via telephone at 1-800-531-5551. A variety of publications on
the Employmment Standards Act 2000 are available online at the
ministry's website: www.gov.on.ca/lab/main.htm
The Ontario Government's electronic laws website is an extensive reference
resource covering Ontario law: www.e-laws.gov.on.ca
The
Province of Ontario legislation governing work on public holidays and
related issues is contained within the Employment Standards Act.
Businesses may also be affected by other pieces of legislation
such as The Retail Business Holidays Act or the Ontario Human Rights
Code. Chamber Members should also understand that changes are often made
in legislation. Periodic
reviews are recommended.
RETAIL
BUSINESS HOLIDAY ACT INFORMATION
CAN
A BUSINESS OR SERVICE BE OPEN ON A HOLIDAY?
Not
all statutory holidays are business holidays. The differences
occur in the Christmas season.
The
Retail Business Holidays Act (RBHA) affects retail businesses plus
some service and hospitality businesses on a total of eight public
holidays each year.
The eight days are:
New Year’s Day, Good Friday, Easter Sunday, Victoria Day,
Canada Day, Labour Day, Thanksgiving Day and Christmas Day.
Please note that Boxing Day is no longer covered under the RBHA.
The
provisions of the Retail Business Holidays Act (RBHA) may be a source of
confusion for retailers, and some other types of businesses, on
Christmas Day, December 25,
Boxing Day, December 26, and New Year's Day, January
1. Stores
must close on Christmas Day and New Year’s Day but, in 1996, the rules
changed concerning Boxing Day.
Legislation passed in Ontario in December 1996 allows stores to
be open on Boxing Day, regardless of what day of the week it may fall.
This legislation has challenged and tested in the courts and
resulted in a Supreme Court decision confirming it as fully legal in
December 2000.
On Christmas Day and New Year’s Day all business affected by the RBHA
must close unless they qualify for an exemption.
For example, small stores under 2,400 square feet, with a maximum
of three employees, where food, tobacco, antiques or handicrafts are
sold may be open.
Gas stations and garden supply outlets are also exempt from closing
requirements.
Other exceptions affect businesses including laundromats and car
rental offices which are not defined by law as retail businesses and,
therefore, not bound by the RBHA.
December 26 was removed from the RBHA's list of holidays when most
stores must be closed under the Boxing Day Shopping Act, 1996.
However, in some areas, local municipal or regional bylaws also
are in effect and prohibit businesses from opening, or restrict hours of
operation. At
present, the City of St. Thomas and adjacent municipalities including
Central Elgin, Aylmer and Southwold have no such special by-law in place
and businesses may be open if they so choose.
For information on any other Ontario municipality, the Chamber
advises placing a call to the Clerk's Office of the municipality in
question.
The Province of Ontario has no laws which govern or limit hours of
retail operation, with the exception of the service and sale of beverage
alcohol. Establishments
licensed to sell alcoholic beverages may provide services only between
the hours of 11:00 a.m. and 2:00 a.m., except on New Year's Eve, when
they may remain open until 3:00 a.m.
It is up to the establishment to decide if it will sell alcohol
for the entire period allowed.
Beyond legal considerations of opening and closing, businesses must also
consider their obligations to employees.
Boxing Day, for example, is still considered a public holiday and
special provisions regarding rates of pay and/or time off work apply. The Ontario Ministry of Labour, Employment Standards Branch, can
provide details. Staff at the London office may be reached by calling
439-3231 or 1-800-531-5551.
Violation of RBHA allows fines to charged: a minimum of $500 for a first
offence, $2,000 for a second offence, and a minimum of $5,000 for the
third and subsequent offences.
At the discretion of the court, guilty businesses may be fined up
to $50,000 or the total amount of gross sales for the day.
For any additional information on the Retail Business Holidays Act, the
St. Thomas &
District Chamber of Commerce recommends Members contact the General
Inquiry Unit of the Ontario Ministry of Consumer and Commercial
Relations in Toronto. Telephone 1-800-268-1142 or 416-326-8555.
Anyone wishing to obtain a copy of the Retail Business Holidays Act or
other provincial legislation may place an order with Publications
Ontario at 1-800-668-9938.
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