A union and employer disagreed about what their contract covered in regards to new statutory holidays, after the Government of Ontario’s Family Day holiday was enacted in 2007.
The union and the employer disagreed about the scope of the contract language they had negotiated concerning paid holidays.
During collective bargaining in 2007, the union proposed adding another paid holiday to the collective agreement.
The union proposed a number of different days. The employer resisted. However, after the union relented on its proposals for a specific day, the parties agreed to accept the potential for a new holiday.
The collective agreement language they agreed upon said this: “In the event that the Government of Ontario proclaims a new statutory or recognized Holiday, the Company agrees to add the holiday to the Collective Agreement effective the date of the proclamation.”
To the surprise of both parties, the government of Ontario did enact such a holiday. Family Day was proclaimed in December 2007 and the employer acknowledged the holiday according to the terms of the collective agreement.
However, during bargaining for a renewal agreement in 2010, the employer suggested some “housekeeping” changes to the contract. The employer proposed to add Family Day into the list of recognized holidays and to remove the proclamation language from the agreement.
Disagreement about future holidays
The union did not agree to the proposal to remove the proclamation language on future holidays and rejected the employer’s insistence on making formalization of the recognition of Family Day contingent on removing the proclamation language.
The union grieved and the dispute went to arbitration.
The union said there was no ambiguity about the language that was agreed to in the 2007 agreement. The language the union gained on the recognition of future holidays was a substantive right. The proposed removal of the proclamation language was not in any sense a “housekeeping” measure and it was improper for the employer to attempt to make its formal recognition of Family Day contingent on the removal of the language that the parties had bargained.
The employer said that the language bargained in 2007 allowed for the addition of one more recognized holiday if the government of Ontario were to proclaim one. The employer said it had met that commitment and it was under no further obligation to recognize any future holidays.
The Arbitrator disagreed.
Parties unprepared
It was clear that the parties agreed to language intended to recognize a holiday in the event that one were to be proclaimed in the future. However, the Arbitrator said, the parties did not put their minds to what would happen after that.
“Had they done so, they might have agreed that the proclamation clause would have effect only for the term of that agreement or that it could operate on a ‘one-off’ basis.”
However, there was no such limiting language, the Arbitrator said.
“Instead, the clause creates a clear obligation to include a newly proclaimed holiday into the Collective Agreement. Unless and until that clause is removed from the Collective Agreement it remains operative and effective. The chances of it creating any actual liability in the foreseeable future is only theoretical because there is almost no likelihood of the Ontario Government proclaiming another statutory or recognized holiday during the term of this Collective Agreement. Nevertheless, it must be concluded that the proclamation clause creates a substantive and continuing obligation to recognize a newly proclaimed recognized holiday. Neither the extrinsic evidence nor the words themselves support a conclusion that this was a ‘one-off’ agreement or that the words would cease to have effect at any specified time.”
The grievance was allowed.
