New federal holiday should be recognized by employer: arbitrator

HRreporter.com
Dec. 13, 2022

The Vaughan Public Library Board operates a system of public libraries for the City of Vaughan in Ontario. It is provincially regulated and not subject to either of the federal Canada Labour Code or Interpretation Act.

The collective agreement between the library board and its union, CUPE, contained an article that listed 11 holidays that they would recognized as paid holidays for which employees would either receive the day off or receive premium pay if they work, along with “any other day proclaimed as a holiday by the federal, provincial or municipal governments.”

The collective agreement did not include the federal holiday of Remembrance Day, which wasn’t recognized as a public holiday in Ontario.

In June 2021, the federal government’s Bill C5 came into force, amending both the Canada Labour Code and Interpretation Act to create a new holiday on Sept. 30 of each year – the National Day for Truth and Reconciliation (NDTR). The province of Ontario did not recognize the day as a public holiday under the provincial Employment Standards Act, 2000.

Ottawa as left it up to the provinces and territories to determine if the NDTR will be a statutory holiday in those jurisdictions.

Union pushed for new holiday to be recognized
Also in 2021, the board and the union were in collective bargaining for a new agreement. The union tabled a proposal to recognize the NDTR as a holiday under the agreement, but the board disagreed. The union withdrew the proposal, indicating that it would pursue the issue through arbitration. They reached a new collective agreement in December 2021.

The union filed a grievance alleging that the library board violated the collective agreement by failing to recognize the NDTR as a public holiday. It argued that the holiday provision was clear in capturing any new holiday that was proclaimed by one of the three levels of government, so the NDTR should be included.

The library board countered that the NDTR was not recognized as a holiday by the province or the City of Vaughan. It also said that the day should be considered a “day of learning” rather than a day off, and since it operated the city’s libraries, it was well-positioned to promote the purpose of the NDTR to its employees.

The library board also argued that the absence of Remembrance Day from the collective agreement indicated that the parties never intended to observe all federal holidays, and the union signed off on the collective agreement after the NDTR after the holiday was proclaimed. If the union wanted this holiday, it should have done so during the bargaining process, during which it withdrew the proposal, said the board.

Two arbitrators, one in Ontario and one in B.C., have determined that the NDTR should be included in collective agreements that allowed the addition of holidays declared by federal or provincial governments.

No need for additional negotiation
The arbitrator noted that there have been many decisions in similar circumstances where the NDTR was recognized as a public holiday where a collective agreement includes the words “proclaimed as a holiday by the federal, provincial, or municipal governments.” In such cases, there was no burden for the union to negotiate the addition of the new holiday, as the wording in the collective agreement already did so, said the arbitrator.

The fact that the library board was not a federally regulated workplace didn’t matter, as the parties chose to include federally proclaimed holidays in their list of paid holidays. The clear wording of the collective agreement prescribed that the NDTR be recognized along with the holidays already listed, the arbitrator said.

The fact that the other federal holiday, Remembrance Day, wasn’t treated as a paid holiday by the parties was irrelevant as well. When that holiday was added to the federal Holidays Act in 2018, the union didn’t seek to have it treated as a paid holiday. The union’s choice regarding that day couldn’t be automatically applied to any other federal holidays, particularly since the union was seeking for the NDTR to be recognized, the arbitrator said.

As for the union’s proposal that it withdrew during collective bargaining, the arbitrator noted that the union put the library board on notice that it would take the issue to arbitration and that its position hadn’t changed that it would continue to seek enforcement of the NDTR as a paid holiday.

The arbitrator determined that the NDTR should have been recognized by the library board as a paid holiday under the collective agreement. The library board was ordered to compensate all affected employees for any losses stemming from the violation of the agreement, and to recognize Sept. 30 as a holiday going forward.