Holiday hullabaloo

When the British Columbia government introduced Family Day as a statutory holiday, workers heaved a sigh of relief. For many, the much-needed day off serves as a break smack dab in the middle of a harsh winter.

But for employees at Walter Energy in Vancouver, the holiday was not observed. Whereas the union demanded compensation for working on a government-designated day off, the employer argued that because Family Day was not explicitly named in the collective agreement, it had to do no such thing.

Mark Brown, presiding over the case, agreed with the latter.

The collective agreement
between Walter Energy’s Willow Creek Coal Partnership and the Construction and Allied Workers Union ran from 2010 to 2013. The days to be observed as holidays were specifically listed and limited to New Year’s Day, Good Friday, Victoria Day, Canada Day, B.C. Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day.

But when the B.C. Family Day Act was implemented back in 2012, it also amended the Employment Standards Act by adding Family Day to the definition of "statutory holiday."

In 2013, Walter Energy did not observe Family Day. This spawned a grievance from the union, which argued its workers were entitled to the day off and, if not that, then the appropriate compensation under the collective agreement. Had the union gotten its way, staffers would have received time and one-half for working on Family Day, as they would have on any other statutory holiday.

According to the Employment Standards Act, if a collective agreement contains a statutory holiday provision, then the named statutory holidays of the ESA will not apply. Essentially, a collective agreement might override a provision of the ESA that has otherwise already been included in the contract.

This, however, requires a specific modification. The ESA now includes Family Day, and there was no specific modification in this particular agreement.

"Therefore, it is wholly artificial to assert that the parties made a specific modification to this new obligation before it even came into existence," the union said.

However, Walter Energy maintained it abided by the collective agreement. Only a written agreement between both parties would have the power to alter the contract, and since that did not happen, Family Day need not have been compensated for.

Furthermore, the agreement named Boxing Day as a holiday, which was considered an extra day off. At the time of ratification, the ESA had only named nine holidays, one less than the collective agreement. In the employer’s view, its workers were receiving a bonus day off in its stead.

In making his decision, Brown took into account the direct meaning, rather than the intended meaning, of the collective agreement.

In the case at hand, the parties incorporated ESA-named holidays into the collective agreement, save for the provisions specifically modified by the contract, Brown noted. By amending the number of statutory holidays in the collective agreement — that is, including Boxing Day — the parties specifically modified it. Therefore, the ESA obligations did not apply.

"In agreeing to a modification, rather than having the ESA apply, the parties could have negotiated a provision to include any future statutory holidays enacted by the government, as many collective agreements do," he added.