Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases and pointed out that the federal Holidays Act explicitly designated three holidays — Cana- da 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 re - ferred to any holidays authorized by law, not specifically the Holidays Act. This meant that the new National Day for Truth and Recon- ciliation should be included as a holiday for National Grocer employees, as it was includ- ed in the Canada Labour Code's list of general holidays. Not limited to legal holidays The Ontario arbitrator found that the collec- tive agreement used the same language to in- clude legal holidays declared by both the fed- eral 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 com- pany's argument, the provision would have a different meaning for holidays declared by the federal government than for those de- clared 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 col - lective agreement wasn't amended to include it as a paid holiday. This was indicative that "the Holidays Act does not govern the inter- pretation of [the paid holiday provision] re- garding 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 gov - ernment 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 dealer - ship Richmond Suburu, operated by Olym- pic 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 gov - ernment." The union wanted the new holiday included under the collective agreement be- cause it fell within the meaning of that state- ment. 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 regulat - ed, the new holiday didn't apply. Like Nation- al 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 in - clusion 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 holi- days. 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 statu - tory 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 provin - cial 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 agree - ment aligned with the provincial legislation didn't take away from that. "I find the disputed proviso unambigu- ously encompasses holidays proclaimed by the federal government, regardless of whether the employer is obligated by statute to rec- ognize 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 "delin - eate circumstances by which a holiday is es- tablished" 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 pro - vincial or by the federal government," said the B.C. arbitrator in determining that the collec- tive 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.). « from NEW HOLIDAY on page 1 Ontario agreement referred to both federal and provincial holiday declarations Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as workplace holiday parties, disability accommodation, and workplace sexual harassment. You can view the blog at www.employmentlawtoday.com. "The Holidays Act does not govern the interpretation of [the paid holiday provision] regarding the declaration of federal holidays," the arbitrator said.

• Cover