A Labour Arbitrator decided that the National Day of Mourning for Her Majesty Queen Elizabeth II was not a statutory holiday under five private sector collective agreements in British Columbia.
In Construction Labour Relations Association of British Columbia v United Association of Plumbers And Pipefitters, Local 170, 2023 CanLII 3049 ("CLRA Decision"), Arbitrator Randall Noonan was asked to decide whether the September 19, 2022 National Day of Mourning ("NDM") was a statutory holiday for the purpose of five collective bargaining agreements applicable to private sector construction workers represented by two unions in British Columbia.
In early September 2022, Her Majesty Queen Elizabeth II passed away. To mark the Queen's passing, the Prime Minister's Office declared the day of her state funeral, September 19, 2022, a "National Day of Mourning" in Canada (the "2022 Statement"). The statement said the NDM would "be designated a holiday for the public service of Canada, and other employers across the country are also invited to recognize" the NDM.
In response to this announcement, the Construction Labour Relations Association of British Columbia ("CLRA") advised its employer members to follow one of two options:
- Do not recognize September 19 as a holiday. In doing this you must be prepared for the possibility a labour arbitrator could retroactively declare it a holiday.
- Recognize September 19 as a holiday for 2022 and close whichever work sites you are able to while providing overtime compensation to employees working on that day. If you elect to follow this option, please notify the unions you work with that you are doing so without prejudice to your interpretation that the Collective Agreement does not require you to do so.
(emphasis in original)
Ultimately, a number of CLRA members decided to recognize the day as a holiday and either closed their work sites or paid overtime, while other members made the opposite choice and treated it as a regular workday and not a statutory holiday.
Two unions grieved whether the NDM was a statutory holiday, covered by their collective agreements. One collective agreement stated that "any day that may be declared a holiday in the future by the Government of Canada or by the Province of British Columbia" would be a statutory holiday. Three collective agreements had substantially similar language as this collective agreement. The fifth collective agreement also had similar language, but used the term "established" instead of "declared". The Arbitrator was tasked with deciding whether the NDM was "declared" or "established" as a holiday.
The unions relied on various statements by government officials and historical proclamations to argue the NDM was a "declared" holiday. This included a 1952 proclamation by the federal Attorney General declaring a "Public Holiday" following the death of King George VI. Further, the unions attempted to compare the NDM to cases addressing the "National Day for Truth and Reconciliation" (the "NDTR").
While the Arbitrator agreed that a legislative enactment was not necessary for a holiday to be "declared", he found neither the federal nor provincial governments chose to declare the NDM as a holiday that relates to private sector employees.
The Arbitrator contrasted the federal government's approach to NDM with NDTR, the latter having involved the enactment of specific legislation to amend the Canada Labour Code and include the NDTR as a holiday with the former.
Moreover, the Arbitrator contrasted the 2022 Statement with the 1952 proclamation for a Day of General Mourning for the passing of King George VI. The 1952 proclamation expressly created a "Public Holiday" generally, whereas the 2022 Statement specified that the holiday was for the "public service of Canada", and that other employers were merely "invited" to recognize the holiday. In addition, the Arbitrator noted that the Premier's office made it clear that provincial public-sector employers were told to honour the NDM, but the same did not apply to private sector employers, who were simply encouraged "to find a way to recognize or reflect on the day in a way that is appropriate for their employees".
Takeaways for Employers
We understand that the CLRA Decision is the first reported case in Canada to consider whether the NDM was a "declared" or "established" holiday for private sector workers. Private sector employers should take note of this decision if they have any outstanding grievances or pending arbitrations in relation to its refusal to treat NDM as statutory holiday for the purpose of their collective bargaining agreement.
The authors would like to acknowledge the assistance of Cameron Penn in the preparation of this blog.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.