Air Canada pilots’ holiday pay claim grounded by arbitrator’s ruling

Air Canada pilots are not entitled to holiday pay when they book off floating days provided as a substitute to general holidays, a federal arbitrator has ruled.

The Canada Labour Code grants an exception for federally regulated employees working “in a continuous operation,” to holiday pay for general holidays if they don’t report to work after being called to work, or make themselves unavailable to work when the conditions of employment on the holiday require them to be available or allow them to make themselves unavailable.

Employment with airlines and other transportations services are included in the definition of “employed in a continuous operation.”

The collective agreement between Air Canada and its pilots substitutes the statutory general holidays with nine additional days of vacation for each year. The time off associated with each day in lieu of a general holiday is bid for by the pilots and scheduled by Air Canada with the rest of their annual vacation allotment. This is permitted by the Canada Labour Code, which stipulates that “the general holidays standards do not apply where a collective agreement confers on employees’ rights and benefits at least as favourable as those conferred in respect of length of leave, rates of pay, and qualifying periods for benefits."

However, Air Canada treats all the time off for pilots equally, meaning pilots don’t receive any extra holiday pay for the holiday lieu days that are part of the agreement. The Air Canada Pilots Association (ACPA) challenged this practice, arguing that the pilots should be receiving holiday pay for the nine holiday lieu days under the code. It said that the exemption for employees who make themselves unavailable only applies to those making an individual choice. Air Canada’s scheduling and bidding system for vacation was subject to certain availability limits, which didn’t necessarily mean pilots could always schedule specific days upon which to observe general holidays, said ACPA.

The arbitrator agreed that the holiday lieu days were the equivalent of general holidays under the code and Air Canada and ACPA took advantage of the option to give flexibility on when to schedule them — a greater benefit than mandating which days are to be taken as general holidays.

The arbitrator noted that the purpose of the code’s section that allows for flexibility in collective agreements is meant to ensure clear communication to employees of which holidays are substituted for which days. The collective agreement in this case provided such clear communication, as pilots would know upon which days their general holidays would be observed because the agreement allowed them to bid on the days themselves.

“The language of the collective agreement clearly lets the pilots know that each one of them are given the ability to select nine days of their choice, subject to the vacation bid system, in place of the general holidays under the code,” said the arbitrator.

The arbitrator disagreed with ACPA’s interpretation of the exemption in the code, noting that it refers to “the conditions of employment” allow them to make themselves unavailable. The collective agreement established the vacation bid system and schedule and protected them from interruption, thus establishing the conditions of employment. As a result, the conditions of employment allowed pilots to make themselves unavailable for work by booking time off — in line with the vacation pay exemption, said the arbitrator.

“What all of this means is that when pilots book off the nine substituted general holidays and Air Canada is no longer able to schedule them for work or draft them to work pursuant to the terms of the collective agreement, they are unavailable for work in the way in which the terms and conditions of employment allow them to make themselves unavailable,” said the arbitrator in dismissing ACPA’s grievance.