Only limit to adding holiday was that it must be proclaimed by any level of government
The language in a British Columbia golf club’s collective agreement was broad enough to allow both the National Day of Truth and Reconciliation and the national day of mourning for Queen Elizabeth II’s funeral to be recognized as holidays, despite the fact both holidays were declared only for federally regulated workplaces.
Gorge Vale Golf Club is a golf club in Victoria. The collective agreement with its union includes a provision that outlines holidays the golf club recognizes.
The provision listed 10 holidays on which Gorge Vale was required to give employees off without loss of wages. If any of the holidays landed on a Saturday or Sunday, the golf club had to give employees the following Monday off. Any employees who had to work on a holiday were guaranteed at least four hours of work at the overtime rates prescribed in the collective agreement – one-and-a-half times the regular rate of pay for the first two hours worked and double time for all subsequent hours.
In addition to the list of holidays, the provision included the statement “and any other day proclaimed by the dominion, provincial, or municipal governments.”
In June 2021, the federal government passed legislation that added the National Day for Truth and Reconciliation (NDTR) to the Canada Labour Code and other federal acts. The day – to be observed on Sept. 30 – was declared a statutory holiday for employees within the federal jurisdiction, along with nine other holidays.
Ottawa left it up to the provinces and territories to decide whether to make the National Day for Truth and Reconciliation a holiday.
Not a provincial holiday
The B.C. government chose not to add the NDTR to its list of statutory holidays under the provincial Employment Standards Act (ESA), which already had 10 holidays.
A couple of months later, the president of the union wrote to Gorge Vale stating that the NDTR was a holiday under the collective agreement. The golf club consented to paying employees overtime rates on Sept. 30.
In September 2022, Queen Elizabeth II passed away and the federal government declared the day of her funeral, Sept. 19, a national day of mourning in Canada. The proclamation granted a holiday to “all persons employed by the core public administration.” The union informed Gorge Vale that the day of mourning should be considered a holiday under the collective agreement.
The union followed up by filing a grievance to recognize both the NDTR and the day of mourning as holidays, arguing that the collective agreement’s statement “and any other day proclaimed by the dominion, provincial or municipal governments” incorporated holidays declared by the federal government.
Gorge Vale disagreed, arguing that the NDTR and the day of mourning were not holidays under the collective agreement, nor were they provincial holidays. It added that it was open to both sides to bargain for statutory holidays, but they shouldn’t be automatically added.
A collective agreement’s language shouldn’t be interpreted in a way that creates a disadvantage for the employer absent clear language otherwise, says a labour lawyer.
Agreement could exceed provincial holidays
The arbitrator noted that the golf club was not a federally regulated workplace and the provincial ESA provided a floor for statutory holiday entitlement that a collective agreement could meet or exceed. Since the employees were subject to provincial legislation, federally declared holidays would only apply if there was clear language in the collective agreement, said the arbitrator.
Looking at the collective agreement, the arbitrator found that the holidays listed reflected provincial holidays under the ESA plus Boxing Day, which is a federal holiday and not in the B.C. ESA. The arbitrator also found that the holiday provision was plain and unambiguous – the parties designated specific dates for statutory holidays and set out a formula for adding new ones.
The arbitrator noted that the word “dominion,” while archaic, referred to the federal government. The word “and” at the beginning of the formula, implied “inclusive of” proclamations by any of the three levels of government, rather than a choice among them, the arbitrator said.
Had the golf club and the union intended to only have holidays on the dates specified in the holiday provision and to only add provincially declared holidays to the list, then the statement following the list would be unnecessary, said the arbitrator. To apply the statement “and any other day proclaimed by the dominion” would not create any absurdity, which was the limit to giving meaning to all words in the agreement, the arbitrator added.
“If I were to accede to the employer’s interpretation it would have the effect of giving no meaning to the words ‘and any other day proclaimed by the dominion,” the arbitrator said.
Employers should be cautious of open-ended contract language that can leave them open to having to had holidays like the NDTR, warns a labour lawyer.
Broad scope
In addition, the provision used the word “day” rather than “statutory holiday,” which gave a broader scope to what could be added. The only limit indicated was that the new holiday must be proclaimed, with no specification whether it be through legislation – as with the NDTR – or through a direct proclamation by the government, as with the day of mourning, said the arbitrator.
Based on the language of the collective agreement, the arbitrator determined that both the NDTR and the day of mourning should be included as statutory holidays for Gorge Vale employees and any effected employees were entitled to compensation for working on a holiday from the effective date of the declaration of each holiday.
See Gorge Vale Golf Club and CUPE, Local 50, Re, 2022 CarswellBC 3385.
