Employer tried to change wording in collective bargaining negotiations
An Ontario employer must recognize the National Day of Truth and Reconciliation as a holiday under a holiday provision requiring it to add “any proclaimed holiday” to its holiday list, an arbitrator has ruled.
Synergy North Corporation is an electricity service provider in the Thunder Bay and Kenora, Ont., area. It is a provincially-regulated employer with a unionized workforce.
The collective agreement included an article listing holidays recognized by Synergy, which numbered 12 including one floater day, plus “all proclaimed holidays.” Employees with 30 days of continuous service received pay for these days while not having to work and overtime pay if they did have to work.
On June 3, 2021, the federal government passed legislation making the National Day for Truth and Reconciliation (NDTR) a federal holiday to be observed on Sept. 30 each year. Three federal acts were amended to include the new holiday – the Bills of Exchange Act, the Interpretation Act, and the Canada Labour Code.
New holiday not initially recognized
Synergy did not recognize Sept. 30 as a holiday in 2021 and 2022. However, when the next round of collective bargaining began in early 2023, the union proposed adding the NDTR to the holidays listed in the collective agreement. However, Synergy countered with a proposal that the phrase “all proclaimed holidays” be changed to “all provincially proclaimed holidays.” The union didn’t agree and they determined that the matter would be resolved through the grievance procedure.
The union filed a grievance arguing that the phrase “all proclaimed holidays” in the holidays provision meant that the NDTR should be included as a recognized holiday for Synergy employees. Synergy maintained that the phrase was restricted to only to holidays proclaimed by the Ontario provincial government, as it was a provincially-regulated employer.
The union pointed out that the plain and ordinary meaning of “all proclaimed holidays” did not restrict it to holidays only proclaimed in Ontario. The principles of contract interpretation supported “a practical, common-sense approach, not dominated by technical rules of construction,” the union said, adding that restrictions should not be read into the agreement that were not negotiated by the parties.
The union also noted that Synergy sought to amend the holidays provision to achieve the restricted interpretation that it wanted, meaning that the employer believed that the current language required the NDTR to be included.
Provincially-regulated employer
Synergy contended that it was subject to the provincial legislative framework, so it was automatic that only provincial holidays should be recognized and that holidays provision should be interpreted as only adding provincially proclaimed holidays. It also argued that it did not provide the new holiday for the first two years after the NDTR was proclaimed by the federal government and the union did not grieve, so past practice was an aid to interpreting the collective agreement.
The arbitrator found that the holidays provision already included entitlement to holidays established federally, provincially, and municipally, as the sources of the listed holidays – including Canada Day, Christmas Day, and Boxing Day – were all levels of government. As a result, “all proclaimed holidays” could not be restricted to only provincial proclamations and could not be the intention of the parties, the arbitrator said.
The arbitrator also found that it was irrelevant that Synergy fell under provincial jurisdiction as an employer, as the laws and regulations of other levels of government could affect its operation. Past practice also didn’t matter, because there was no ambiguity to the collective agreement’s language, the arbitrator said.
“The entitlement is clear on its face. It is an unrestricted additional benefit under the recognized holidays provision: ‘all proclaimed holidays,’” said the arbitrator.
The grievance was upheld and Synergy was required to recognize the NDTR as a holiday for its workforce. See Synergy North Corporation v. Power Workers’ Union, Canadian Union of Public Employees, Local 1000, 2023 CanLII 121442.
