A sort-of new holiday

A year ago, the federal government created a new holiday – the National Day for Truth and Reconciliation (NDTR) – on Sept. 30. The date, also referred to as Orange Shirt Day, was already being used to honour Indigenous children who were forced to attend residential schools, and the 2021 legislation turned it into a holiday for federal government employees and any employers governed by the Canada Labour Code.

Although it’s a worthy reason to take time out for sober reflection, it’s not a statutory holiday for everyone.

When the feds proclaimed the holiday, they added it to the Canada Labour Code, the Bills of Exchange Act, and the Interpretation Act – which, again, apply to federally regulated employers. The federal Holidays Act, which includes holidays to be recognized across Canada such as Canada Day, Victoria Day, and Remembrance Day, was not amended.

This meant that it was up to individual jurisdictions to decide if they were going to recognize the NTDR with a day off for workers. This has left a mixed bag of observance for the day, including differing circumstances for unionized workplaces.

Nova Scotia, Prince Edward Island, and the Northwest Territories have made the NTDR a statutory holiday of varying degree in their jurisdictions, while giving the choice to businesses to open or not. Some other jurisdictions are giving provincial or municipal employees the day off, but not for workers in general – although many are committed to observing the day in some other way.

Read more: How to honour Indigenous people on National Day for Truth and Reconciliation

Holiday for some, not for others

What’s a little interesting around the status of the NTDR is how in some unionized workplaces it’s a day off and others it’s not – depending on the wording in their collective agreements, not any action taken by the employers.

One British Columbia employer thought that it could operate on Sept. 30 as it would on any other business day, since the province declared it to be a day of commemoration but not a statutory holiday for provincially regulated employers. In early 2021, before the federal government declared the day to be a federal holiday, the union proposed to add the NTDR to the collective agreement’s list of holidays, but the employer declined.

However, no change was made to the wording of the agreement’s holiday provision, which listed the holidays to be recognized by the employer followed by the statement, “or any other day proclaimed by the provincial or federal government when the company is forced by legislation to close down its operation. The union grieved after workers weren’t given the day off and an arbitrator found that the provision’s intention was to add new statutory holidays when proclaimed by either the provincial or federal government. In addition, the use of the word “or” wasn’t intended to require a choice, but rather how a day would become a holiday – either on the list or as a newly proclaimed holiday. The employer was ordered to make the NTDR a holiday under the collective agreement.

Wording can be everything. An Alberta employer found itself in the same position after the first NDTR last year. Its collective agreement listed 11 days to be treated as holidays and stated that more would be included “should the federal and/or provincial government add any statutory holidays.” The employer allowed employees to sign up for unpaid time off if they wished to personally observe the day, but it otherwise treated Sept. 30 as a regular operational day. This led to the union filing a grievance over whether the NDTR should be a holiday for its workforce.

The arbitrator determined that the intention of the holiday provision was to add only provincial statutory holidays that applied to the employer’s operations and the use of the term “and/or” meant that either the provincial or federal government could adopt a new holiday that applied provincially. He also noted that most of the employer’s clients treated it as a regular business day, so giving employees the day off would put the company at a competitive disadvantage – which was contrary to the agreement’s status objective of enhancing competitiveness. The arbitrator found there was no intention in the agreement to include federal holidays that didn’t legally apply to the employer’s operations.

Read more: Reconciliation efforts are about day-to-day interactions, but employers struggle without standardized processes, say experts.

The National Day for Truth and Reconciliation is a step in the right direction reconciling a part of our history that has been mostly ignored by many. But it’s not a holiday for everyone, and many employers have their own choices to make about how to acknowledge and observe it – as long as they’re sure that it isn’t actually a holiday for their workforce.