HomeMy WebLinkAboutUnion/Group 24-05-07In the matter of an arbitration pursuant to the collective agreement
BETWEEN:
The Ontario Public Service Employees’ Union, Local 259
(“the Union”)
And
Grand River Conservation Authority
(“the Employer”)
RE: Group Grievance 2022-0259-0005 & Policy Grievance 2022-0259-0004
Before: Matthew R. Wilson
For the Employer:
Glenn Christie, Counsel
Karen Armstrong, Deputy CAO, Secretary-Treasurer
Krista Bunn, Human Resources Manager
For the Union:
Daniel Bastien, Grievance Officer
Dan Pinto, Local President
Rebecca Mitchell, Shop Steward
William Scott, Shop Steward
A video hearing was held on April 30, 2024.
AWARD
1. The grievances deal with the Union’s claim for holiday pay for the National Day of
Mourning (“NDM”) following the passing of Her late Majesty Queen Elizabeth II.
The NDM was September 19, 2022.
2. The parties made their submissions based on an agreed statement of facts. The
relevant portions are set out below.
AGREED STATEMENT OF FACT
. . .
THE GRIEVANCES
6. On September 27, 2022, the Union filed a policy grievance (2022-0259-
0004) on behalf of all employees and a group grievance (2022-0259-0005)
on behalf of 39 grievors. Both grievances stated that the Employer has
violated the Collective Agreement Article 20 and any other legislation or
relevant article that may apply alleging the Employer has “(f)ailed to give
entitlements owed and agreed pertaining to the Federal Government
Proclaimed Holiday on September 19th, 2022. [Tabs 3 and 4 – Policy
Grievance and Group Grievance]
. . .
THE COLLECTIVE AGREEMENT
11. The relevant section of the Collective Agreement is below:
ARTICLE 20 - PAID HOLIDAYS
20.01 The following shall be recognized as holidays to be paid at
the employee’s straight time hourly rate multiplied by the number of
hours the employee would normally have worked on such day:
New Year's Day Civic Holiday
Family Day Labour Day
Good Friday Thanksgiving Day
Easter Monday Remembrance Day
Victoria Day Christmas Day
Canada Day Boxing Day
or days celebrated in lieu thereof, regardless of the day on which it
falls. And any other day proclaimed as a holiday by the Federal or
Provincial Governments.
NATIONAL DAY OF MOURNING IN CANADA
12. On September 8, 2022, Buckingham Palace announced the passing of
Her Majesty Queen Elizabeth II.
13. On September 13, 2022 at a press conference, the Prime Minister
stated that “declaring an opportunity for Canadians to mourn on Monday is
going to be important.”
14. There was some initial confusion in the news media as to whether the
Prime Minister had declared a holiday for federally regulated employers.
15. The Prime Minister’s office released a statement in the afternoon of
September 13, 2022 which stated, in part:
The Prime Minister, Justin Trudeau, today announced that
September 19, 2022, will be a National Day of Mourning in Canada,
to mark the passing of Her Majesty Queen Elizabeth II.
[…]
It will be designated a holiday for the public service of Canada, and
other employers across the country are also invited to recognize
the National Day of Mourning. [Tab 7 – Statement of the Prime
Minister]
16. Under a section marked “Quick Facts”, the announcement stated:
[…]
Statutory holidays in Canada can only be granted through
legislation, which must pass through the House of Commons and
the Senate, and receive Royal Assent.
The Government of Canada has consulted the provinces and
territories, who will determine an appropriate way to mourn Her
Majesty Queen Elizabeth II in their jurisdictions.
17. The Federal Minister of Labour, Seamus O’Regan Jr., further clarified
the status and expected treatment of the National Day of Mourning on
Twitter, stating:
September 19, 2022 will be a holiday for federal government
employees. It will be a day of mourning for the passing of Her
Majesty Elizabeth II, Queen of Canada. Federally regulated
employers are welcome to follow suit, but they are not required to
do so. [Tab 8 – Tweet of Seamus O’Regan]
18. The Office of the Chief Human Resources Officer for federal
employees also released a statement clarifying the status and expected
treatment of the National Day of Mourning, stating:
This Day of Mourning is a one-time holiday for all persons
employed by the core public administration (CPA). It is not a
Designated Paid Holiday; however, this day is to be administered
pursuant to applicable authorities such as collective agreements
and terms and conditions of employment. [emphasis in original]
19. In accordance with the Prime Minister’s announcement, the Governor
General issued an Order in Council on September 13, 2022, which stated:
Her Excellency the Governor General in Council, on the
recommendation of the Prime Minister, directs that a proclamation
be issued requesting that the people of Canada set aside
September 19, 2022 as the day on which they honour the memory
of Her late Majesty Queen Elizabeth the Second, who passed away
on September 8, 2022. [Tab 9 – Statement of Chief Human
Resources Officer]
20. The proclamation corresponding to the National Day of Mourning was
published in the Canada Gazette on September 13, 2022 and was titled
“Proclamation Requesting that the People of Canada Set Aside
September 19, 2022, as the Day on Which They Honour the Memory of
Her Late Majesty Queen Elizabeth the Second.” [Tab 10 – Canada
Gazette]
21. Ontario Premier Doug Ford’s office released a statement to the news
media stating that the province would mark the Queen’s funeral on
September 19, 2022 as a “as a provincial day of mourning in lieu of a
provincial holiday.” The province would be holding a moment of silence at
1:00 p.m. on that day.
22. The Queen’s state funeral was held on September 19, 2022.
THE PARTIES’ SUBMISSIONS
3. The Union presented two grievances in support of its position that the NDM had
been proclaimed a public holiday within the meaning of Article 20.01 of the
collective agreement. It relied on the customary principles of contract
interpretation to argue that a liberal construction of Article 20.01 included the
NDM since it was proclaimed as a holiday within the definitions found in Black’s
Law Dictionary. The Union pointed to the various communications by officials
and politicians of the federal government as being sufficient to establish a
proclamation.
4. The Employer argued that a day proclaimed by the federal government is not
necessarily a holiday and certainly not a paid holiday within the meaning of
Article 20.01. This is why there was a separate announcement to employees of
the federal government who were granted a holiday for the NDM. While the
Employer did not dispute the Union’s articulation of the principles of
interpretation, it argued that the interpretation urged by the Union was so broad
that it would capture every day proclaimed by the federal government.
5. There was significant overlap in the authorities referred to me in this matter.
These were as follows: Black’s Law Dictionary, 6th ed. (West Publishing, 1990);
Maple Leaf Consumer Foods (Hamilton Facility) v United Food and Commercial
Workers Canada, Local 175, 2011 CanLII 6860 (Surdykowski); Gorge Vale Golf
Club and CUPE, Local 50, 2022 CarswellBC 3385 (Love); Corporation of the City
of London and Canadian Union of Public Employees, Local 101, 2022 CanLII
135041 (Bendel); Construction Labour Relations Association of British Columbia
v United Association of Plumbers and Pipefitters, Local 170 and Millwrights
Union, Local 2736, 2023 CanLII 3049 (Noonan) upheld 2023 BCLRB 80;
Vaughan Public Library Board and CUPE 905.17 (Part-Time and Casual) and
905.18 (Full-Time) (Beatty); Malton Village of the Regional Municipality of Peel
and CUPE Local 966, 2023 CanLII 16682, (McNamee); The Alberta Union of
Provincial Employees v. Covenant Health, 2023 CanLII 54527 (AB GAA);
Vancouver Terminal Elevators’ Association v. Grain Workers’ Union ILWU Local
333, 2023 CarswellNat 3631 (Sims); The Canadian Union of Public Employees,
Local 38 v. The Municipal Corporation of the City of Calgary, 2023 CanLII 99802
(Robertson); London City Employees Union (CUPE, Local 107) v. Corporation of
the City of London, 2023 CanLII 100239 (Anderson); The Ottawa Police
Association and The Ottawa Police Services Board, 2023 CanLII 25852
(Waddingham), quashed on judicial review 2023 ONSC 6225 (CanLII) (Div. Ct.).
ANALYSIS
6. The issue before me is whether the employees are entitled to have September
19, 2022 – the National Day of Mourning – treated as a holiday under Article
20.01 of the collective agreement.
7. There is no dispute that I must apply a “plain and ordinary” meaning to the words
of the collective agreement and that such an interpretation should be applied
liberally. I must determine whether “And any other day proclaimed as a holiday
by the Federal or Provincial Governments” includes the NDM.
8. It must first be considered what the federal and provincial governments
proclaimed with respect to the NDM. It is not uncommon for the Government of
Canada to issue proclamations and those proclamations are not necessarily
public holidays. In Ottawa Police, the Divisional Court identified several
examples such as the Day of Mourning following the death of Prince Phillip (April
28, 2021), a day for remembrance of the 2017 Quebec Mosque Attack (April 28,
2021), in recognition of the efforts of Canadians during the pandemic (March 31,
2021), among others. It was not suggested to me that these were public holidays
under the parties’ collective agreement.
9. On September 13, 2022, the Governor General issued an Order in Council
(“OIC”) that “directs that a proclamation be issued requesting that the people of
Canada set aside September 19, 2022 as the day on which they honour the
memory of Her late Majesty Queen Elizabeth the Second…”. The OIC was not a
proclamation that September 19, 2022 was a holiday. This can be contrasted
with a proclamation issued in 1952 to recognize a Day of Mourning for the
passing of King George VI as a public holiday (see the discussion in Construction
Labour Relations Association of British Columbia (Noonan)).
10. In its capacity as an employer, the federal government announced that
September 19, 2022 would be treated as a public holiday for federal government
employees. It did not make this announcement for employees outside of the
federal government.
11. These two actions, one as the government and one as the employer, are distinct
and do not go so far as to be a proclamation that the NDM is a public holiday.
12. There is no question that the provincial government did not proclaim the NDM a
public holiday.
13. Thus, I am tasked with determining whether the language of the collective
agreement can be interpreted as meaning that any day “proclaimed” is to be
treated as a public holiday under Article 20. This is the same question identified
by the Divisional Court in Ottawa Police.
14. To reach the conclusion advocated by the Union, I would have to be persuaded
that the parties had agreed that days that were proclaimed by either the
provincial or federal governments were to be treated as public holidays. After
reviewing the language negotiated by the parties, I am unable to reach this
conclusion. The parties used the words “proclaimed as a holiday” to capture any
new days to the enumerated list of public holidays. It would be beyond a liberal
interpretation of the words, “And any other day proclaimed as a holiday by the
Federal or Provincial Governments” to include all days that were proclaimed.
15. The Employer relied on the Divisional Court’s decision in Ottawa Police where
the Court dealt with the identical issue. This case is a complete answer to the
grievances, independent of my own analysis. That case dealt with similar
language that read as follows: “any day proclaimed by the Governor General in
Council or the Lietenant Governor in Council for the Province of Ontario…. shall
be a statutory holiday”. The arbitrator held that the NDM was a statutory holiday
under the collective agreement. In finding that the result was unreasonable, the
Divisional Court held,
[37] I accept and agree with the Board’s submissions that the Arbitrator’s
interpretation of the Collective Agreements leads to an unreasonable
outcome, namely, that any proclamation would entitle OPA members to an
additional paid holiday day in the year of the proclamation and, in some
cases, annually thereafter. This would create an accumulating and
significant expense for which the Board, as employer, could not plan or
budget.
. . .
[41] A similar approach was taken in ALOC. At para. 77 of ALOC, the
arbitrator identifies that the “critical question” is what the parties intended
when they entered into their collective agreements. That approach is
repeated at para. 79, at which the arbitrator states the following: “[w]hat
really matters, though, is what the parties themselves thought when they
entered into the agreements.”
[42] That question was not asked by the Arbitrator. Instead, as submitted by
the Board, the approach taken by the Arbitrator was to determine the “plain
and ordinary meaning” of the word “proclaimed”, without asking whether the
parties intended that a holiday would be granted every time a “proclamation”
was made for symbolic reasons.
16. The Divisional Court quashed the award and dismissed the grievances.
17. The reasoning of the Divisional Court is consistent with virtually all the awards
referred to me. These awards had the same or similar collective agreement
language.
18. The one decision referred to me by the Union that reached a different conclusion
is Gorge Vale. But as has been recognized by other arbitrators, the decision
may have been informed by an inaccurate description of the agreed facts that
were presented to the arbitrator. Specifically, at paragraph 8 of the decision, the
OIC was described as granting “…all persons employed by the core public
administration (CPA)” a holiday on September 19, 2022. As explained above,
the OIC and the government’s announcement as an employer were distinct. It is
not clear whether this important fact would have affected the outcome of the
award. However, it is sufficient to distinguish the award as has been done by
other arbitrators (see for example London City Employees (Anderson) and
Malton Village).
19. For the forgoing reasons, I am satisfied that Article 20.01 of the collective
agreement requires a proclamation of a holiday to be treated as a public holiday
under that provision. The proclamation by the federal government did not go so
far as to recognize the NDM as a public holiday. This was done by a separate
announcement and limited to employees of the federal government. Thus, the
NDM was not proclaimed a public holiday and did not fall under Article 20.01 of
the collective agreement.
20. Therefore, the grievances are dismissed.
Dated this 7th day of May, 2024.
________________
Matthew R. Wilson
Sole Arbitrator