According to the employee handbook policy 3.6, it says that we are entitled to annual vacations. It also discusses statutory holidays. It states "all field operation employees may be paid as above or be given another day off with pay at some other time in addition to pay for the hours worked on the holiday." The Labour Code gives guidance that the time off will be determined by agreement by the employee and the employer, and needs 70% agreement of all employees.
The employee handbook also discusses the averaging period that allows CHC to employ it's staff in "continuous operations". This section does not comply with the Labour Code. Since according to the Labour Code, a company can average its hours to ensure that employees do not exceed the maximum hours permitted under the labour code. The code does not give any minimum hours to be worked, and therefore CHC's policy to not pay us if we do not meet the hours worked is not a valid argument.
Further to this, all employees subjected to Labour Codes of Canada are entitled to Vacation, or Vacation Pay in lui. My contract gives me a daily rate and a monthly basic salary. Hours worked have no bearing in any discussion of vacation pay. Further to this, my contract states that I work 6 weeks with 6 weeks leave, and that I am expected to do 2 weeks of training per year. The wording of "time off" is very clear, it is not vacation, or statutory holiday time off. The labour code is also very clear that under averaging that time off is not vacation.
I have received two different explanations as to why I do not receive vacation pay. One reason given was that I do not work enough hours, and the other was that I am deemed to have taken my vacation in my time off. The first reason is not valid according to the Labour Code dealing with vacation pay, and the second explanation is not valid due to Labour Code dealing with averaging hours. The Labour Code is very clear. All employees subjected to Canadian Labour Code are entitled to Statutory Holidays, or pay in lui, and all employees are entitled to Vacation with pay or Vacation Pay in lui.
After I received these different explanations, I asked for a copy of the Labour agreement that CHC has with Labour Canada, and I was not provided this. I am entitled to this information. I also have not had any further explanation since I sent an email dealing with this last year. One of my colleagues was informed that he should speak with C B to have the CHC policy explained to him.
Division IV
Annual Vacations
Definitions
183. In this Division,
"vacation pay"
«indemnité de congé annuel »
"vacation pay" means four per cent or, after six consecutive years of employment by one employer, six per cent of the wages of an employee during the year of employment in respect of which the employee is entitled to the vacation;
"year of employment"
«année de service »
"year of employment" means continuous employment of an employee by one employer
(a) for a period of twelve consecutive months beginning with the date the employment began or any subsequent anniversary date thereafter, or
(b) for a calendar year or other year determined by the employer, in accordance with the regulations, in relation to an industrial establishment.
R.S., 1985, c. L-2, s. 183; 1993, c. 42, s. 19.
Annual vacation with pay
184. Except as otherwise provided by or under this Division, every employee is entitled to and shall be granted a vacation of at least two weeks with vacation pay and, after six consecutive years of employment by one employer, at least three weeks with vacation pay in respect of every year of employment by that employer.
R.S., c. L-1, s. 40; R.S., c. 17(2nd Supp.), s. 10; 1976-77, c. 28, s. 49; 1977-78, c. 27, s. 11.
Granting vacation with pay
185. The employer of an employee who under this Division has become entitled to a vacation with vacation pay
(a) shall grant to the employee the vacation to which the employee is entitled, which shall begin not later than ten months immediately following the completion of the year of employment for which the employee became entitled to the vacation; and
(b) shall, at such time as is prescribed by the regulations, pay to the employee the vacation pay to which the employee is entitled in respect of that vacation.
R.S., c. L-1, s. 41; R.S., c. 17(2nd Supp.), s. 11.
Vacation pay
186. Vacation pay shall for all purposes be deemed to be wages.
R.S., c. L-1, s. 42.
General holiday during vacation
187. Where one or more general holidays occur during a vacation granted to an employee pursuant to this Division, the vacation to which the employee is entitled under this Division may be extended by one day for each such holiday, and the employer shall pay to the employee in addition to the vacation pay the wages to which the employee is entitled for those general holidays.
R.S., c. L-1, s. 43; 1977-78, c. 27, s. 12.
1. For workers subject to averaging, how are standard hours, maximum hours and overtime calculated?
The standard hours of work of an employee subject to averaging are 40 times the number of weeks in the averaging period; maximum hours of work are not to exceed 48 times the number of weeks in the averaging period. For example, in a two week averaging period, standard and maximum hours are 80 hours and 96 hours, respectively.
At the end of each averaging period, overtime is paid to employees who work hours in excess of the standard hours, excluding those hours for which overtime has been paid already, in the averaging period. The calculation of overtime owing is based on standard hours that are reduced, pursuant to section 6(7) of the Canada Labour Standards Regulations, by 8 hours for each day in the averaging period which is a day:
· of bereavement leave with pay;
· of annual vacation with pay;
· of leave of absence with pay under subsection 205(2) of the Code;
· general or other holiday with pay; or,
· that is normally a working day in respect of which the employee is not entitled to regular wages (for example, when an employee is off on unpaid sick leave).
Under paragraph 6(7)(e) of the Canada Labour Standards Regulations, it is important to note that, in general, every day for which an employee is scheduled to work is "normally a working day".
It is usually the case that an employee receiving a base salary is considered to be "entitled to regular wages" for the purposes of paragraph 6(7)(e) of the Regulations. Therefore, no reduction is made in standard hours for the averaging period for an employee, who is absent from work on paid sick leave.
Averaging provisions under section 169 of Part III of the Canada Labour Code and section 6 of the Regulations are meant to address hours of work for both scheduled and non-scheduled workers.
· Scheduled workers who can average are workers whose schedules vary, such as airline pilots who may be scheduled for flights of varying durations.
· Non-scheduled workers are those for whom work is sporadic and unreliable such as non-driving workers employed by a moving or trucking company where employees work only as work becomes available.