Re Canadian Brotherhood of Railway, Transport & General Workers and St Lawrence Seaway Authority

Document Type

Arbitration Decision

Publication Date

1-8-1968

Keywords

Holiday Pay, Statutory Holiday, Past Practice, Non-Working Day

Abstract

In 1967 the July 1st Dominion Day holiday fell on a Saturday and by way of a Royal Proclamation the Federal Government of Canada appointed Monday, July 3rd, as a day to be observed as a public holiday in Canada. The grievors were paid holiday pay for July 1st, but not for July 3rd. The collective agreement then in effect provided that: "All employees shall be paid for each of the following statutory holidays... Dominion Day... and any other day expressly authorized by the Federal Government." Held, the issue before the board is whether the grievors are entitled to holiday pay for July 3rd in addition to holiday pay already received for the Dominion day holiday in 1967. The general principle with regard to holiday pay adopted by labour arbitration boards in Ontario is that when a statutory holiday falls on non-working day there is no right to holiday pay unless the collective agreement makes it clear that holiday pay is to be paid regardless of the day upon which the holiday falls. The wording of the present collective agreement is clear that the employees are to receive holiday pay for the specified statutory holiday whether or not they fall on a working day. In the past the Authority has with the concurrence of the union shifted observance of the holiday to the next working day. However, the union did not concur on the shift this time and past practice does not assist the Authority's case. Past practice is relevant only where the provisions of the collective agreement are ambiguous and the practice of the parties helps to resolve the ambiguity. Past practice in this case only shows that the union has agreed to waive a right under the collective agreement, but does not show that the union has agreed to continue to so waive. While the words "any other day expressly authorized by the Federal Government'' contained in the collective agreement would not include a day to which it has been announced the Federal Civil Service will shift its observance of a statutory holiday, a proclamation appointing a day to be observed as public holiday amounts to an express authorization within the terms of the collective agreement. The Dominion Day Act, R.S.C. 1952, c.88, expressly provides that July 1st will be celebrated as Dominion Day and the proclamation does not purport nor attempt to shift the date of observance of the holiday. The "'ejusdem generis" rule of interpretation has no application here as it should be used to clarify obscure phrases and not to change the meaning of clear words. The grievance was allowed unanimously.

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