'The applicable interpretive principle is that eligibility for benefits should be construed liberally,' says arbitrator
A BC provincially regulated employer violated its collective agreement by not recognizing the National Day of Mourning for Queen Elizabeth II as a holiday for its employees, an arbitrator has ruled.
Prt Growing Service is a tree seedling supply company based in Victoria, BC. The bargaining unit for its employees devolved from that of the main public service in BC, and its collective agreement had identical language regarding paid holiday as the Main Public Service Collective Agreement.
The agreement included a provision that listed 12 days designated as paid holidays, plus a statement allowing the addition of “any other holiday proclaimed as a holiday by the federal, provincial or municipal governments for the locality in which an employee is working…”
An Ontario company’s collective agreement allowed for the NDM to be added as a holiday by referring to definitions in federal legislation.
Federal proclamation
On Sept. 13, 2022, the Prime Minister’s office announced that Sept. 19 would be a National Day of Mourning (NDM) to mark the death and funeral service of the queen and it would be a holiday for the Federal Public Service. The same day, the proclamation was issued.
Also on Sept. 13, the Premier of BC stated that the “national holiday” would be observed by federal employees and the provincial government was advising provincial public-sector employers “to honour this day in recognition of the obligations around federal holidays in the vast majority of provincial collective agreements.”
On Sept. 15, the Prime Minister and the Minister of Canadian Heritage referred to Sept. 19 as a “national day of mourning.”
Prt did not recognize Sept. 19 as a paid holiday and carried on business as usual. The union filed a grievance claiming that the company violated the holiday provision of the collective agreement.
An Ontario employer did not have to add the NDM as a holiday because the federal government didn’t specifically proclaim it as a holiday, an arbitrator ruled.
Previous arbitration decision
The union referred to a 2022 arbitration decision that found that its collective agreement with Prt provided for the recognition of the National Day of Truth and Reconciliation (NTDR) when it was first observed on Sept. 20, 2021. It argued that the collective agreement had already been interpreted as allowing a new federal holiday and Prt should follow that decision.
The union also pointed to the federal Interpretation Act, which included “any day appointed by proclamation to be observed as a day of general prayer or mourning…” in its definition of “holiday,” and the BC Interpretation Act, that included “a day set by the Parliament of Canada or by the Legislature, or appointed by proclamation of the Governor General or Lieutenant Governor, to be observed as a day of general prayer or mourning.”
As the NDM was a day of mourning proclaimed by the federal government, it should be included as a holiday under the collective agreement, said the union.
The arbitrator noted that it was an established principle that collective agreement provisions dealing with the eligibility of benefits should be interpreted liberally and in favour of delivering “the full measure of the negotiated benefit.”
The arbitrator disagreed with the union that the previous decision relating to the NDTR already decided the issue, because the circumstances around that holiday were different. For the NDTR, the federal government enacted legislation that amended the Canada Labour Code and added the holiday to the list of holidays in the code. It did not do so for the NDM, said the arbitrator, adding that there had been several cases involving both the NDTR and the NDM since that 2022 decision.
The collective agreement for Ottawa police only required the proclamation of a ‘day’, not a holiday, to be added to the holiday list, an arbitrator ruled.
No geographic restriction for non-specific proclamation
The arbitrator found that the holiday provision did not restrict adding a new holiday only for those specifically proclaimed for BC or specifically for the public or private sector. Regardless, the proclamation of a day of mourning, applied to federal public sector employees across Canada including BC, said the arbitrator.
The arbitrator also found that the use of the word “locality” meant that employees in an area where the municipality declared a holiday would receive that holiday, but it didn’t limit broader proclaimed holidays.
“In my view, [the holiday provision] is a benefit-conferring provision and the applicable interpretive principle is that eligibility for benefits should be construed liberally and that exceptions to eligibility should normally be construed narrowly,” said the arbitrator. “The words dealing with ‘locality’ ought not to be construed to deny the benefit where a locality is not specified in a proclamation by the federal government.”
The arbitrator also found that the BC government recognized that the holiday should be granted under obligations around federal holidays in the vast majority of provincial collective agreements, including this one.
The arbitrator determined that Prt’s employees were entitled to the NDM as a holiday under the collective agreement. Prt was ordered to “make whole all employees employed” by the company on Sept. 19, 2022 in relation to holiday entitlements. See Prt Growing Service Ltd. and BCGEU (National Day of Mourning), Re, 2023 CarswellBC 1721.
