Written by: Diana Sepúlveda
The Federal government announced yesterday that September 19, 2022 will be a National Day of Mourning to mark the passing of Her Majesty Queen Elizabeth II. The day will be a designated holiday for Federal employees.
The BC government has chosen not to follow suit, but has advised provincial public-sector employers to honour the day in recognition of the obligations around federal holidays in the vast majority of provincial collective agreements.
In the private sector, there is no obligation for employers to honour this holiday subject to language in a collective agreement that requires employers to recognize newly declared Federal holidays. For this reason, unions should carefully review the holiday provisions of their collective agreements to consider whether employers are required to give employees September 19 off with pay, or whether employees who work are entitled to a holiday premium.
Our firm has successfully represented unions in recent policy grievances arguing that National Day for Truth and Reconciliation should be recognized as a statutory holiday pursuant to several collective agreements. Most arbitrators in BC and Ontario have decided in favour of recognizing National Day for Truth and Reconciliation as a holiday for unionized employees. Summarized below is a brief review of the case law in BC so far:
In Earl's Industries v Marine Workers and Boilermakers Industrial Union, Local No. 1, Arbitrator Coleman agreed with the union’s that National Truth and Reconciliation Day satisfied the language in the Collective Agreement because the evidence established that the holiday was “generally celebrated in the area,” whether that area was the province, the lower mainland or the tri-cities area. As a result, employees who worked on that day were entitled to a paid day off, or premium pay.
In Pacific Honda -and- International Association of Machinists and Aerospace Workers Local Lodge 1857, the collective agreement’s holiday provision listed a number of holidays and added "and any other day proclaimed by the provincial or federal government where the Company is forced by legislation to close down its operation”. Arbitrator Saunders found in favour of the Union and ordered the employer to make the employees whole for losses and to recognize the day as a holiday moving forward.
In Olympic Motors (WC1) Corporation v International Association of Machinists and Aerospace Workers, Arbitrator Saunders similarly held that the phrase “or any other day proclaimed by the provincial or federal government” encompassed National Day for Truth and Reconciliation. Identical language was also interpreted in favour of the Union in Westminster Toyota and Jim Pattison Toyota – Downtown -and- International Association of Machinists and Aerospace Workers, (Matacheskie), and similar but not identical language was interpreted in favour of the Union in Johnson Controls (TYCO Integrated Fire & Security Canada) -and- International Brotherhood of Electrical Workers, Local 213 (Kandola).
In Davis Wire Industries Ltd. v. United Steelworkers Union, Local 2009, [2022] B.C.C.A.A.A. No. 79, the Arbitrator Devine found that the language "and any other day declared a Statutory Holiday by the Provincial and/or Federal Government” supported the Union’s position that National Day for Truth and Reconciliation was a holiday under the collective agreement.
In Terrapure Environmental (North Vancouver) v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 2009, 2022 BCLRB 60 (CanLII), the BC Labour Relations Board reversed a decision of Arbitrator Sullivan where he found in favour of the employer. The case was remitted back to the arbitrator for reconsideration, but a new decision has yet to be issued.
Whether these decisions will provide a strong basis for arguing that the National Day of Mourning should be recognized for your members will depend in large part on the specific language of your collective agreement. However, this area of law is evolving and the wording of your collective agreement is not the only factor to consider. The same language may, for example, be interpreted differently by arbitrators in different contexts:
In Mission Hill Vineyards and Mission Hill Wine Store v Service Employees’ International Union, Local 2, Branch 300, Arbitrator Matacheskie found that the phrase "plus all other Statutory Holidays as may be declared by the B.C. Provincial and Federal Governments” meant that both levels of government had to declare a holiday in order for it to be recognized as a holiday under the collective agreement.
Arbitrator Matacheskie also decided in favour of the employer in Collins Manufacturing v International Association of Machinists and Aerospace Workers on August 11, 2022 (unpublished). The Union has filed for review of the Collins decision with the Labour Relations Board.
If you have questions about what the National Day of Mourning announcement means for your members, please reach out to one of our lawyers who can review your specific collective agreement language.