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Arbitration ruling sheds light on ‘proclaimed’ holidays in collective agreements following Queen Elizabeth II’s death

A recent arbitrator decision in Canadian Union of Public Employees and Its Locals 905.17 (Part-Time) and 905.18 (Full-Time) and Vaughan Public Library Board found that the National Day of Mourning following Queen Elizabeth II’s death was not proclaimed to be a holiday for the purposes of the relevant collective agreements as the term “proclaimed” had a specific meaning connected to a legislative process that did not occur.

This decision is important for unionized employers bound by a collective agreement that includes similar language (i.e., “proclaimed” holidays), because it can help determine what “special days” do or do not need to be treated as paid holidays.

Background

Sept. 19, 2022 was declared to be a National Day of Mourning following Queen Elizabeth II’s death earlier that month.  Vaughan Public Library did not treat the National Day of Mourning as a paid holiday for its employees, a decision which was grieved by its union (CUPE) which has two collective agreements in place (for part time and full time employees) with Vaughan Public Library.

Article 15.01 of both collective agreements provides the following paid holidays:

• New Year’s Day
• Family Day
• Good Friday
• Easter Monday
• Victoria Day
• Canada Day
• Civic Holiday
• Labour Day
• Thanksgiving Day
• Christmas Day
• Boxing Day
• And any other day proclaimed by the federal, provincial or municipal governments.

The union took the position that the National Day of Mourning should be treated as a paid holiday as it would fall under “any other day proclaimed by the federal, provincial or municipal governments.”

The union pointed to various announcements and directives released by government personnel or departments — such as statements released by the Prime Minister, or a directive issued by the Office of the Chief Human Resources Officer of the Government of Canada.  These announcements and directives apparently indicated that the National Day of Mourning would be treated as a “holiday.”

However, out of the statements and releases that the union pointed to, only two actually referred to the National Day of Mourning as a holiday.

Vaughan Public Library argued that the word “proclaimed” in the collective agreements had a specific meaning that is connected to the conclusion of a legislative process. That legislative process did not occur in this situation.  The National Day of Mourning was not made a holiday under the Canada Labour Code, the Holidays Act, or the Ontario Employment Standards Act, 2000.

The decision

Arbitrator Beatty determined that this was an issue of contract interpretation and that “proclaimed” was the key word to be interpreted in this case.  The union’s position interpreted the term “proclaimed” as a synonym for “stated,” “notified,” or “indicated.”  Arbitrator Beatty stated that the union’s interpretation was overly broad and that the term “proclaimed” actually had a specific meaning connected to a legislative process.

The legislative process by which a holiday is “proclaimed” did not occur with respect to the National Day of Mourning as it involves more than simple announcements or declarations by representatives of a government body.

As such, the National Day of Mourning was not deemed to be a paid holiday for the purposes of the collective agreements and CUPE’s grievances were dismissed.

Lessons for employers

This case is a great example of being aware that the words in a contract, such as a collective agreement, may have specific meanings that will impact the interpretation of the contract.

On a practical level, employers may be bound by collective agreements that have holiday articles containing language similar to the holiday articles that were interpreted in this case – i.e., a list of named holidays as well as language addressing “proclaimed” holidays.

This award is useful in determining when a special day does or does not need to be treated as a paid holiday.  If a collective agreement refers to “proclaimed” holidays, it is not enough for a special day to be labelled a “holiday” in a press release.  There must be a legislative process that concludes in a “proclamation”.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.