Striking workers not entitled to holiday pay

Employees of an Ontario company who returned to work after Labour Day when the strike ended on the previous Friday are not entitled to holiday pay, an Ontario arbitrator has ruled.

Workers at M&I Air Systems Engineering in Mississauga, Ont., went on strike on Monday, Aug. 28, 2006, after their union, Local 252 of the Canadian Auto Workers, could not reach a new collective agreement. Included in the old agreement was an article outlining designated paid holidays.

Employees were required to work on the “qualifying days,” which were the business days immediately before and after each holiday, in order to be paid for the holiday. The exception to this would be if the company was given reasons for the absence or if it authorized a leave of absence. A point of contention in the negotiations was the fact management wanted to change the exception by giving it discretion to approve or reject an employee’s reason for absence.

After continued bargaining, a settlement was reached on the first day of the strike and most employees showed up for work the following day, Aug. 29, 2006. However, the settlement was rejected by union membership and the strike resumed. This time, employees elected not to return to work until the settlement was ratified on Friday, Sept. 1, 2006.

The employees agreed to return to work the following Tuesday, the day after Labour Day. The union insisted employees should be paid for the holiday but the company disagreed, saying they were not entitled to payment because they did not have an acceptable reason for their absence from work the day before. The union filed a grievance, arguing the strike the day before the holiday was a valid reason for absence.

The arbitrator pointed out that a strike is an action where employees choose to forfeit compensation and benefits by not working. Holiday pay is part of their compensation. “When the reason for absence from work on a qualifying day is that the employees are on strike and choosing not to work,” the arbitrator said, “it would not be reasonable for the employer to still be required to pay for the holiday.”

The arbitrator explained that would be essentially subsidizing the strike, which the employer cannot be expected to do. See M & I Air Systems Engineering v. C.A.W. Canada, Local 252, 2007 CarswellOnt 8626 (Ont. Arb. Bd.).

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