May 23, 2023
Summary
This grievance involved a dispute over whether the National Day for Truth and Reconciliation (“NDTR”) was required to be recognized as a statutory holiday for the purposes of the Collective Agreement between IATSE Local 129 and Global Spectrum OVG 360 in relation to the First Ontario Centre and First Ontario Concert Hall. In 2022, the Employer refused to recognize the holiday under the Collective Agreement.
It was accepted by both the Local and Employer that NDTR was a statutory holiday under federal legislation, therefore applying to federally-regulated workplaces, and that this place of work was not federally-regulated. However, Article 8(c) of the Collective Agreement required that “[a]ny legislated new Holiday established by either of the two senior levels of Government… will automatically be included under the terms of this Article,” in addition to the list of holidays specifically outlined as applying to the workplace under Article 8(a).
The Union argued that “senior levels of government” had to include the federal government and could not mean the municipal level of government to the exclusion of the federal, given that the municipal government is subordinate to the provincial whereas the federal and provincial governments are comparably “senior” in our system of government, and therefore it would be an absurd reading of the terms “senior levels of government” to include the municipal and provincial and not to include the federal. The parties had therefore explicitly agreed to include federal and provincial holidays under the collective agreement, making the fact the workplace is provincially regulated not relevant to the determination of whether NDTR was automatically included as a statutory holiday. Further, the Union argued that the language used in the provision, and particularly “legislated”, was more consistent with the parties considering the federal and provincial legislatures than it was municipalities, which pass laws referred to more commonly as “by-laws” than legislation.
The Employer argued that NDTR is not a statutory holiday because the term “senior levels of government” must refer to the municipal and provincial governments because the federal government is not constitutionally competent to enact laws in relation to this workplace. The Employer argued that the lack of inclusion of Remembrance Day in the list of holidays demonstrates that the parties did not consider federal jurisdiction when drafting the agreement.
The Arbitrator adopted the Union’s argument that “two senior levels of government” must be understood as referring to the provincial and federal governments given the common understanding of the term senior and the subordinate nature of municipal governments to provincial legislatures. The Arbitrator accepted the Union’s argument that the language used in the provision was more consistent with a reference to the federal legislature than it was municipal by-laws, and that the Employer’s argument required reading in language into the agreement that was not present in the agreement. The Arbitrator gave no weight to the lack of inclusion of Remembrance Day and noted that it was open to the parties to agree to include federal holidays under the agreement. The Arbitrator held that NDTR was a Holiday under Article 8.1 of the Collective Agreement and remitted the issue of remedy to the parties to resolve.