A difference between the federal and provincial statuses of the National Day for Truth and Reconciliation has led to a series of challenges from B.C. private sector unions who want the day treated as a statutory holiday.
So far the unions appear to be winning — but it all comes down to individual contract language.
Unions have prevailed in having September 30th recognized alongside holidays like Christmas and Canada Day for their members in four out of six B.C. labour arbitration rulings posted in the last eight months.
'And' versus 'or'
The federal government has declared the National Day for Truth and Reconciliation a statutory holiday whereas British Columbia has not.
That split has seen unionized workers at private sector businesses ranging from car dealerships to wineries file grievances arguing that their collective agreements provide for the recognition of the new national holiday.
The contracts that led to the four successful cases all contained one key word: "or".
The word proved crucial in cases where employers agreed to recognize existing statutory holidays and any other holidays recognized by the provincial "or" federal governments.
By contrast, in one of the two losing battles, the collective agreement governing unionized employees at Mission Hill Vineyards and the Mission Hill Wine Shop entitled them only to statutory holidays declared by the provincial "and" federal governments.
"Applying the plain and ordinary meaning of the word 'and', I find that both the provincial and federal government must declare any new statutory holiday for it to meet the requirements," arbitrator Allison Matacheskie wrote in the Mission Hill decision.
"National Day for Truth and Reconciliation is not added to the current list of statutory holidays in the collective agreement."
Stopping short of a statutory holiday
Canada marked the first National Day for Truth and Reconciliation last year as a way to honour lost children and survivors of residential schools, their families and communities.
By contrast, National Indigenous Peoples Day on June 21 is not a federal statutory holiday, and is described by Ottawa as "a day for all Canadians to recognize and celebrate the unique heritage, diverse cultures and outstanding contributions of First Nations, Inuit and Métis peoples."
As part of the process to create a federal statutory holiday on Sept. 30, Ottawa amended legislation so federal employees and workers in industries like banking, air transportation and railways — which are governed by the Canada Labour Code — receive a paid day off work.
The federal government left it up to the provinces and territories to decide if they wanted to follow suit.
That has led to a somewhat confusing situation as provinces have acknowledged the importance of reconciliation, but largely stopped short of adding another day off to their calendars of assorted statutory holidays.
Last year, the B.C. government shut schools and advised public sector employees to observe Sept. 30 as a statutory day in "recognition of obligations in most collective agreements."
A fact sheet on the province's website says the day "should again be observed as a statutory day for remembrance [in 2022] for those employees who are normally entitled to federal and provincial statutory days."
The government says it expects many private sector employers will want to do the same.
'Forced' to close down operations
In one of the arbitration cases, the employers — Marathon Motors and Jim Pattison Industries — stressed that their fight with International Association of Machinists and Aerospace Workers was "about the cost of operating its business and not about the importance of National Day for Truth and Reconciliation."
The car dealerships asked the arbitrator in that case to follow the logic in the only other decision — apart from the winery workers — where a union has lost a bid to have Sept. 30 treated as a statutory holiday.
In that case, arbitrator Christopher Sullivan found that while their contract called for United Steelworkers working at Terrapure Environmental to get a stat on "any other day declared as a Statutory Holiday by the Provincial and/or Federal Governments" — that list didn't extend to Easter Monday.
Sullivan said the implication was that "statutory holidays like Easter Monday, i.e. federal holidays, are not recognized."
As such, he ruled against the steelworkers, finding that if National Truth and Reconciliation Day was treated as a statutory holiday then they would also have to get Easter Monday off.
The arbitrator in the Marathon Motors and Jim Pattison Industries case ultimately sided with the union.
In addition to the "and/or" debate, the arbitrator also had to consider language in the contract that says a new holiday has to involve a company being "forced by legislation to close down its operations."
The union argued that it would be "absurd" to take that wording literally, because in 2022, no private business is ever "forced" to close, which would render the promise of any new holidays meaningless.
The employer argued that the words did have meaning because the contract was certified in 1977, when the Lord's Day Act still prohibited commercial activity on Sundays and designated holidays, before it was struck down as unconstitutional in 1985.
"The Employer submits I would be exceeding my jurisdiction by rewriting or modifying the parties' collective agreement if I ignore this qualifying language," the arbitrator wrote.
But the arbitrator disagreed, saying that a "strict literal interpretation imposes a limitation that effectively means there will never be any addition to the list of designated statutory holidays."
She found the employers had violated the collective agreement and ordered them to pay the employees what they were owed.