Arbitrator looks at B.C. government's statements after Queen's death
The national day of mourning on the day of Queen Elizabeth II’s funeral was not declared a holiday for private-sector employers in British Columbia, an arbitrator has ruled.
The Construction Labour Relations Association of British Columbia (CLRA) is an organization that represents contractors in the construction industry in BC. The CLRA has four different collective agreements with the United Association of Plumbers and Pipefitters, Local 170 covering different types of work, as well as a millwright standard agreement with the Millwrights’ Union, Local 2736.
The four Local 170 collective agreements had a holiday provision that listed recognized statutory and general holidays along with a statement that any holiday “declared” by the federal government or the BC provincial government would also be recognized as a holiday. The millwrights’ agreement stated after the list of holidays “and any one federal or provincial holiday that may be established.”
On Sept. 13, the federal government issued a statement announcing that Sept. 19 would be a national day of mourning in Canada to mark the passing of Queen Elizabeth II. The day was designated a holiday for the federal public service. The statement also encouraged other employers “across the country” to recognize the national day of mourning.
The Governor-General also issued a proclamation on Sept. 13 requesting “that the people of Canada set aside Sept. 19, 2022” to honour the late Queen.
The confusion over the national day of mourning was typical for Canada, given the different federal and provincial and territorial rules.
Recognized by provincial public sector
The BC premier’s office issued a statement that the provincial government would “join with other provinces in observing the national day of mourning” and provincial public-sector employers would recognize the day with relation to “obligations around federal holidays in the vast majority of provincial collective agreements.” The statement added that private-sector employers in the province were encouraged to “find a way to recognize or reflect on the day in a way that is appropriate for their employees.”
On Sept. 14, the CLRA issued a bulletin to its contractor members advising that Sept. 19 had not been declared a federal holiday and it was only a holiday for federal government employees. It advised members that they should either not treat the day as a holiday or do so and close worksites while providing overtime compensation to any employees who worked.
Local 170 sent a memorandum to its union members indicating that Sept. 19 was a holiday covered by one of its collective agreements with the CLRA, but not the other three because it had not been proclaimed through a legislative process specifically required in those agreements. Local 2736 told its members that it was a holiday, adding that the premier’s statement was enough to make the day “established” under its collective agreement.
An inclusive collective agreement required the employer to add both the NDTR and the national day of mourning as holidays, a BC arbitrator ruled.
Patchwork recognition by construction contractors
Some CLRA members recognized the day as a holiday and some didn’t. The unions grieved, arguing that the federal government’s proclamation, along with statements from the BC premier and the prime minister, constituted a declaration of Sept. 19, 2022, as a holiday within the meaning of the collective agreement. They also argued that the parties to the agreement intended for a day such as a national day of mourning to be recognized as a holiday – as evidenced by some CLRA members treating it as a holiday.
The arbitrator noted that there was a difference between the national day of mourning and the National Day of Truth and Reconciliation (NDTR), which was declared a federal holiday in 2021 and was included in many collective agreements with similar language. The NDTR was enacted with legislative changes to the Canada Labour Code, while there were no legislative changes of any kind for the national day of mourning, the arbitrator said.
The arbitrator found that the parties to the collective agreements agreed to be bound by what either the federal or provincial government declares to be holidays, but neither level of government declared a holiday for private-sector employees on Sept. 19, 2022.
An Alberta employer was not required to add the NDTR to its list of holidays because the collective agreement required it to be a legal holiday in the province, an arbitrator ruled.
Proclamation of holiday for public service
The arbitrator compared the 2022 federal proclamation to similar ones following the death of the King in 1952, and the latter specifically appointed a public holiday for a national day of mourning, while the 2022 proclamation requested that people set aside the day to honour the Queen’s memory.
“The statements issued by the Prime Minister’s Office are clear that the day would be designated a holiday with limited application ‘for the public service of Canada,’” said the arbitrator, adding that the proclamation would have indicated if the federal government intended the day to be a holiday applying to anyone else.
The arbitrator also found that the premier’s office stated that provincial public-sector employers were to honour the day but it didn’t apply to private-sector employers.
The arbitrator determined that the national day of mourning on Sept. 19, 2022, was not declared a holiday outside the public sector. As a result, it was not a holiday under the CLRA’s collective agreements, the arbitrator said in dismissing the grievance.
