When Ontario premier Dalton McGuinty announced his intention last October to create a new holiday in February, more than a few unionized employees wondered if they would be eligible. Several disagreements had been publicized in the media even before the holiday was celebrated when employers announced that they would not give their workers the day off.
The ability to choose to recognize a new holiday or not in unionized Ontario workplaces arises from subsection 5(2) of the Employment Standards Act, 2000. It states that “If one or more provisions in an employment contract … provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract … apply and the employment standard does not apply.”
The standard test to establish whether an agreement provides a greater benefit comes from a court case, Queen’s University v. Fraser. It creates a “metaphorical scale” with two pans: one contains the employment standard and the other contains all holiday rights and protections, broadly construed, from the collective agreement. Citing the case, the arbitrator in Decor Entry Systems and the International Association of Machinists points out that “all terms and conditions in the collective agreement must therefore be considered” and mentions qualifiers for receiving pay and premium pay for working the day.
An interesting example of this balancing is an arbitration between Sing Tao Newspapers and the Communications, Energy and Paperworkers concerning vacations. The arbitrator found that the employer’s practice of buying back all of employees’ vacations (something the employees apparently appreciated) created a greater right or benefit than the ESA, which requires that vacations be taken as time off.
There are two leading cases. In Decor, the collective agreement was held not to provide a greater benefit than the employment standard. The company wanted to observe some paid holidays on non-working days and pay straight time on the holiday, thus depriving the employees of both time off work and money. In Sysco Food Services of Ontario and C.A.W. – Canada, the company provided an extra paid holiday, but wanted the right to unilaterally schedule work on any holiday. This was not found to be a greater benefit either.
Arbitrator Burkett has written one of the early awards regarding Family Day in U.S. Steel Canada and the United Steelworkers, Local 8782. Like the two other awards, it is straightforward: the employer relied on the greater benefit of the collective agreement to refuse to recognize the holiday. All three upheld the employer’s right in this regard.
However, three points should be made regarding union arguments he did not accept. The first argument was that the modified language in the 2000 version of the ESA required specific agreement language contracting out of each ESA right. The second was that the test described above from Queen’s University no longer applied. The third was that the comparison should be between the individual mid-winter holiday provided by the ESA and any similar holiday (or lack of holiday) in the agreement.
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