Post-strike statutory holiday pay

Our collective agreement states that employees are entitled to statutory holiday pay if they have been employed for at least three months preceding the holiday. We just settled a lengthy strike, and a statutory holiday is approaching. Are we required to pay statutory holiday pay to the striking employees?

Colin Gibson
Question: Our collective agreement states that employees are entitled to statutory holiday pay if they have been employed for at least three months preceding the holiday. We just settled a lengthy strike, and a statutory holiday is approaching. Are we required to pay statutory holiday pay to the striking employees?

Answer: British Columbia’s Employment Standards Act provides that statutory holiday pay is payable to employees who have been employed for at least 30 calendar days, and have worked or earned wages for at least 15 of the 30 calendar days immediately preceding the holiday. Under s. 3 of the act, however, this provision is inapplicable to employees covered by a collective agreement that contains language dealing with statutory holidays.

Collective agreements typically specify the requirements an employee must meet in order to qualify for statutory holiday pay. For example, an employee may need to have worked on the working days immediately before and after the holiday, and/or may need to have been employed by the employer for a specified period of time.

The right of striking employees to statutory holiday pay will often turn on the particular language of the collective agreement. However, the arbitral decisions rendered in this area have not always been consistent.

In British Columbia Rail Ltd. a legal strike ended shortly before Labour Day. The collective agreement provided that to qualify for holiday pay, an employee needed to have “rendered compensated service” on at least 12 of the 30 calendar days immediately preceding the holiday. The employer argued the striking employees were not entitled to be paid for the holiday.

Relying upon an earlier decision involving the same parties, the arbitrator ruled that although a literal interpretation of the language supported the employer’s position, a “purposive approach” based on “what seasoned labour relations practitioners would accept as a sensible judgment” did not. Allowing the grievance, the arbitrator cited with approval the following passage from an earlier judgment:

“… in most instances it is reasonable to infer that a qualifying pay provision of a collective agreement was not intended to defeat a claim for statutory holiday pay where the apparent failure to satisfy the provision is attributable to the lack of scheduled work due to a lawful strike or lockout.”

A different result was reached in Penticton (City) v. C.U.P.E., Loc. 608, where the bargaining unit employees engaged in a 12-day illegal strike which included Good Friday and Easter Monday. After the strike ended, the union argued the striking employees were entitled to statutory holiday pay for these two days because, under the collective agreement, entitlement to such pay was based on employment status, not days worked. The relevant provision read:

“No employee shall receive holiday pay for a statutory or public holiday unless he has been continuously employed for a period of 30 calendar days immediately preceding the holiday. A layoff not exceeding five calendar days shall not be deemed to be a break in service for the purpose of this section.”

The arbitrator ruled the employees were not entitled to statutory holiday pay under this language. The main issue was whether it could reasonably be inferred that the phrase “continuously employed for a period of 30 calendar days immediately preceding the holiday” was intended to allow employees who engaged in an illegal strike to claim an entitlement to statutory holiday pay. The arbitrator concluded it could not. The arbitrator also noted that although a leave of absence would not break a period of “continuous employment” for the purpose of such a provision, an illegal strike would do so.

In UPM-Kymmene Miramichi Inc., the collective agreement provided that employees were entitled to statutory holiday pay if they had been “at work” at least 30 calendar days prior to the holiday. A legal strike occurred and ended just before Canada Day. The employees returned to work as scheduled by the employer a few days after the holiday. The arbitrator ruled that as the employees were at work on the last scheduled workday immediately before, and the first scheduled workday immediately after, the statutory holiday, they were entitled to be paid for the holiday.

For more information see:

British Columbia Rail Ltd., [1994] B.C.C.A.A.A. No. 81 (Kelleher)

Penticton (City) v. C.U.P.E., Loc. 608, (1985), 21 L.A.C. (3d) 233 (B.C. Arb. Bd.)

UPM-Kymmene Miramichi Inc., [2005] NBLAA No. 3 (Gorman)

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at cgibson@harrisco.com or (604) 891-2212.

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