Agreement allowed for federal holidays to be added by referring to federal legislation
An Ontario city’s collective agreement contained language that required it to provide a paid holiday to employees on the national day of mourning following the death of Queen Elizabeth II, an arbitrator has ruled.
The collective agreement for the City of London, Ont., and its inside workers contained a holiday provision. The provision listed 12 days over the course of each year that would be recognized as paid holidays, including one lieu day. For each of these days, employees would receive their regular rate of pay while not being required for work. Any employees required to work on those days would receive extra pay.
Following the list of holidays, the provision included the statement, “and any other day declared by a competent authority to be a holiday within the meaning of the Bills of Exchange Act.” The Bills of Exchange Act is federal legislation that states that in all the provinces, Sundays and “any day appointed by proclamation to be observed as a public holiday, or as a day of general prayer or mourning or day of public rejoicing or thanksgiving, throughout Canada” would be observed as legal holidays.
On Sept. 13, 2022, the federal government issued an order of council stating that “by this our proclamation request that the people of Canada set aside Sept. 19, 2022, as the day on which they honour the memory of Her late Majesty Queen Elizabeth the Second, who passed away on Sept. 8, 2022.”
A holiday provision in a collective agreement allowed for adding new holidays proclaimed by the federal government, an Ontario arbitrator ruled.
Holiday for public employees
The Prime Minister’s office followed up with a statement that included the fact that statutory holidays in Canada could only be granted through legislation and the individual provinces and territories would determine how to mourn the Queen in their own jurisdictions. Subsequently, Sept. 19 was recognized as “a one-time holiday for all persons employed by the core public administration” that was not a designated paid holiday but would be administered pursuant to collective agreements and terms of employment.
The Ontario government stated that it would have a “provincial day of mourning” featuring a moment of silence, but no holiday.
The union asserted that Sept. 19 should be recognized as a paid holiday under the collective agreement. The city disagreed and required employees to work regularly that day.
The union filed a grievance, pointing to the fact that similar proclamations were made by order in council following the death of previous royals, including Prince Philip, Duke of Edinburgh, in April 2021 during the period of the current collective agreement. However, the city did not treat that day as a holiday and the union didn’t challenge it at the time.
Statutory holiday pay is one of the top non-compliance issues in Canada, says a payroll consultant.
Bills of Exchange Act meaning
The union argued that the federal government proclaimed “a day of general mourning” that fell within the meaning of public holiday under the Bills of Exchange Act.
The arbitrator noted that there was no policy or rule against implied benefits such as a paid holiday, but the more serious the consequences, then the more precise language is needed to express it in order to properly ascertain the intentions of the parties.
The arbitrator found that the collective agreement’s holiday provision effectively “delegated to the government of Canada the power to add holidays by incorporating a reference to the Bills of Exchange Act.” The wording for this purpose was clear and unambiguous, the arbitrator said.
The arbitrator noted that the Sept. 13, 2022, order in counsel did not include the word “mourning,” but the French text did. Since the proper approach is to accept the more specific of the two possible meanings, the proclamation designated a day for mourning the Queen, said the arbitrator.
Adding the day of mourning for Queen Elizabeth as a holiday under a collective agreement required a proclamation that it was specifically a holiday, said an Ontario arbitrator.
Day of general mourning
The arbitrator also found that the proclamation did not have to include the word “general” to describe the mourning as noted in the Bills of Exchange Act’s holiday definition. However, the proclamation didn’t include any specifics about the mourning, which made it “general,” the arbitrator said.
In addition, the union’s failure to claim a holiday in 2021 with Prince Philip’s death “could not be reasonably interpreted as an abandonment by the union of its rights to all subsequent holidays proclaimed as days of general mourning,” said the arbitrator.
The arbitrator determined that Sept. 19, 2022, met the requirements for a paid holiday under the collective agreement. The city and the union were charged with coming to an agreement as to the compensation of employees in relation to the holiday. See Corporation of the City of London v. Canadian Union of Public Employees, Local 101, 2023 CanLII 25299.
