July 1 fell on a Sunday and employer declared that would be the day of the paid holiday, with the Monday a regular day
This instalment of You Make the Call involves a dispute between a union and an employer over the Canada Day statutory holiday.
Canada Bread Company in North Bay, Ont., had a collective agreement with its union that recognized 11 paid holidays, including one each employee got for her birthday. Employees would receive either a paid day off of be paid 1.5 times their regular pay for working on the holiday. To be eligible for the paid holiday, employees must have worked the full regular shift before and following the holiday.
In 2012, Canada Day (July 1) fell on a Sunday. Since Sunday was a regular day of operation for Canada Bread, the company declared Sunday, July 1 would be the holiday and employees would receive the day off with pay. They would then work July 2 for regular pay. This differed from the federal Holiday Act, which stipulated July 2 would be the day of observance since July 1 wasn’t a normal business day.
The union said nothing until after the holiday, when on July 3 it filed a grievance on behalf of all employees arguing Canada Bread couldn’t unilaterally declare what day the holiday could be when legislation stated that when July 1 fell on a Sunday, the legal holiday would be observed on July 2. The union said that to allow the company to make such a declaration would be to contract out of the Ontario Employment Standards Act, 2000 (ESA), and give the company free rein to choose when any holiday was observed.
Canada Bread argued that the collective agreement provided a greater benefit than employment standards legislation — 11 paid holidays compared to nine legislated by the ESA — so the legislative holiday provisions didn’t apply. The union insisted that the issue wasn’t the number of holidays, but when they should be observed, and the company shouldn’t have the right to unilaterally decide when those holidays would be. If allowed to decide when Canada would be observed, the company could theoretically declare that Christmas would be observed in February and all the other paid holidays could be during a plant shutdown in October, said the union.
You Make the Call
Did Canada Bread have the right to decide when Canada Day would be observed?
OR
Was the company obligated to follow the legislated observance on Monday, July 2?
If you said Canada Bread had the right to set the Canada Day holiday as Sunday, July 1, you’re right. The arbitrator found the union’s claim that the company could declare any day for the public holidays was absurd and was not contemplated by the parties in the collective agreement. However, it was likely the parties contemplated this exact situation, allowing a one-day adjustment to Canada Day when it fell on a Sunday, a regular work day for Canada Bread. This was backed up by the fact that in 2007, the last time Canada Day fell on a Sunday, under a previous collective agreement, the company did the same thing. It wasn’t challenged by the union at the time.
Since the collective agreement provision should be interpreted narrowly as only pertaining to Canada Day and enshrining a past practice, the overall effect of the collective agreement holiday provisions was to still provide a greater benefit than employment standards legislation and allowing the Canada Day shift was reasonable, said the arbitrator.
“The detriment to employees that may result from the one-day adjustment permitted by (the collective agreement), which adjustment can only occur at intervals of several years, does not counterbalance the benefit of the extra one, two or three paid holidays provided by the collective agreement above and beyond those provided by the ESA,” said the arbitrator.
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