New holiday should be included in collective agreements, say two arbitrators

Ontario and B.C. agreements had provisions leaving opening for new holiday declared by federal government

New holiday should be included in collective agreements, say two arbitrators

Two labour arbitrators — one in British Columbia, one in Ontario — have ruled that the new National Day for Truth and Reconciliation proclaimed by the federal government should have been made a holiday under the collective agreements of two companies.

In the summer of 2021, the Government of Canada passed legislation that established the National Day for Truth and Reconciliation on Sept. 30.

The collective agreement for the Cambridge, Ont., warehouse of National Grocers had a clause listing 10 holidays for which employees would receive holiday pay and a day off. The clause also contained a provision stating: “In the event that the federal or provincial governments should declare any other day(s) a legal holiday, the company agrees to recognize such day(s) as a paid holiday.”

However, National Grocer advised the union before Sept. 30, 2021, that it did not recognize the day as a paid holiday under the collective agreement and it would be a regular day of work for employees. It took the position that the legislation declared Sept. 30 as a “general holiday” and not a “legal holiday” and pointed out that the federal Holidays Act explicitly designated three holidays — Canada Day, Victoria Day, and Remembrance Day — as legal holidays. The collective agreement only incorporated federal holidays when they were expressly declared as legal holidays in the Holiday Act, the company said.

The union filed a grievance, arguing that the plain and ordinary meaning of the term “legal holiday” in the collective agreement referred to any holidays authorized by law, not specifically the Holidays Act. This meant that the new National Day for Truth and Reconciliation should be included as a holiday for National Grocer employees, as it was included in the Canada Labour Code’s list of general holidays.

Not limited to legal holidays

The Ontario arbitrator found that the collective agreement used the same language to include legal holidays declared by both the federal and the provincial government. However, Ontario doesn’t have legislation comparable to the federal Holidays Act for the purpose of declaring legal holidays. Under the company’s argument, the provision would have a different meaning for holidays declared by the federal government than for those declared by the provincial government, said the Ontario arbitrator.

The Ontario arbitrator also noted that when Remembrance Day was added as a legal holiday to the Holidays Act in 2018, the collective agreement wasn’t amended to include it as a paid holiday. This was indicative that “the Holidays Act does not govern the interpretation of [the paid holiday provision] regarding the declaration of federal holidays,” the Ontario arbitrator said.

The Ontario arbitrator added that because the collective agreement referred to holidays declared by either the federal or provincial government reflected that the parties’ intention was not to interpret it in accordance with an act that didn’t pertain to provincial declarations.

The Ontario arbitrator determined that the collective agreement was meant to add “any holiday which is legally authorized as a paid holiday by either the federal or provincial government.” As a result, the National Day for Truth and Reconciliation should have been recognized as a paid holiday and National Grocer violated the collective agreement when it failed to do so.

In Richmond, B.C., automotive dealership Richmond Suburu, operated by Olympic Motors, had a collective agreement that also listed 10 statutory holidays for which employees would receive pay and a day off. It also included the statement “or any other day proclaimed by the provincial or federal government.” The union wanted the new holiday included under the collective agreement because it fell within the meaning of that statement.

“The Holidays Act does not govern the interpretation of [the paid holiday provision] regarding the declaration of federal holidays,” the arbitrator said.

Olympic Motors disagreed, as it believed that the federal government designated the day by amending the definition of “general holiday” under the Canada Labour Code, which governs federally regulated employers. Since the dealership was provincially regulated, the new holiday didn’t apply. Like National Grocer, the company also pointed out that the day was not established under the federal Holidays Act, which proclaims holidays that must be observed across Canada.

The company also pointed out that the inclusion of “or” in the last statement meant that the collective agreement limited paid holidays to 10 and any new entitlement would be in place of one of the existing holidays. The collective agreement would have said “and any other day proclaimed…” if it contemplated adding any more than 10 paid holidays.

The B.C. arbitrator agreed with Olympic Motors that the National Day for Truth and Reconciliation was not designated as a statutory holiday under the B.C. Employment Standards Act or the federal Holidays Act. As a result, the day did not apply as a holiday “by force of statute” and the question was around the wording of the collective agreement.

Broad statement has broad application

The B.C. arbitrator found that the statement “or any other day proclaimed by the provincial or federal government” was broad enough to include general holidays under the Canada Labour Code, not just holidays applicable to provincially regulated employers and the fact that the listed holidays already in the agreement aligned with the provincial legislation didn’t take away from that.

“I find the disputed proviso unambiguously encompasses holidays proclaimed by the federal government, regardless of whether the employer is obligated by statute to recognize that holiday,” said the B.C. arbitrator. “The language at issue is a broadly worded benefit conferring provision, and the union is entitled to draw upon the full scope of its application.”

The B.C. arbitrator also found that the use of the word “or” in the provision didn’t limit the number of paid holidays to 10. In the context of its use, it was used to “delineate circumstances by which a holiday is established” beyond the “non-exhaustive list” of holidays.”

“A day may qualify as a holiday because it is one of the 10 days in the list set out in [the collective agreement], or it may qualify as a holiday because it is proclaimed by the provincial or by the federal government,” said the B.C. arbitrator in determining that the collective agreement entitled employees of the dealership to the National Day for Truth and Reconciliation in addition to the 10 holidays already listed in the collective agreement.

 For more information, see:

  • UFCW, Local 1006A and National Grocers Co. (GR0148), Re, 2021 CarswellOnt 14694 (Ont. Arb.).
  • Olympic Motors (WC1) Corp. and IAMAW, Local 1857 (National Day for Truth and Reconcilation), Re, 2021 CarswellBC 3513 (B.C. Arb.).

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