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A recent Bill passed by the Provincial Government (“Bill 24”) has taken the important step of recognizing a National Day for Truth and Reconciliation, one of the many calls to action established by the Truth and Reconciliation Commission. The purpose of the new statutory Holiday, which will be on September 30th each year, is to recognize and honour residential school survivors. The holiday had been recognized by federally regulated industries but had not applied to provincially regulated industries prior to the passage of Bill 24. The holiday is an important step towards the process of reconciliation, but what does it mean for employees, and employers in a unionized context?
This is an application of a principle in labour and employment law known as the “statutory floor of rights”. In a nutshell, this principle holds that certain basic rights are set out in the Employment Standard Act (the “ESA”) and employers are not allowed to contract out of them. Statutory holidays are just one of these basic rights. For example, a non-unionized employee is entitled to have September 30th off or paid extra for their time provided they meet the eligibility requirements in the ESA, namely that they have been employed for at least 30 calendar days before the holiday and have earned wages for at least 15 days out of those 30 days. If an employee meets the eligibility requirements, then they are entitled to a paid holiday or 1.5 times their regular pay if their employer requires them to work the day. However, the application of the principle in a unionized context is slightly different than in a non-unionized context. With this in mind, how will the bill affect unionized workers?
Normally, in British Columbia, the statutory floor of rights applies differently in a unionized work environment because collective agreements do not automatically apply the statutory holiday provisions of the ESA in the same way that non-unionized contracts do. Normally, collective agreements can forego certain statutory holidays, provided that the collective agreement as a whole provides equal or greater benefits than those afforded by the statute. One of the reasons for this is that unlike in a non-unionized environment, the law presumes that a collective agreement that is negotiated between an employer and a union is one between two parties with relatively equal bargaining power. However, this general rule does not apply in the case of National Truth and Reconciliation Day because of an amendment to the ESA made by the Provincial Government in Bill 24. This amendment specifically reads into collective agreements the September 30th holiday, even if the agreement does not specifically provide for it as a statutory holiday.
Forgetting the more technical legal aspects of the issue, the bottom line and key takeaway is that whether unionized or not, every worker in British Columbia will be entitled to a Statutory Holiday on September 30th.
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