Hugh Secord, B.A., M.B.A., CHRP

During last year's Ontario provincial election, Premier Dalton McGuinty made a promise to the electorate that, if elected, he would create a new statutory holiday to be known as "Family Day", to be celebrated in February. Quickly after winning the election, the government, through an Order-in-Council, established the new holiday. Ontario now joins Saskatchewan and Alberta in celebrating this holiday. Manitoba also recognizes the day in February as a holiday, but has named it "Louis Riel Day" after the Métis leader of the Red River Rebellion (1869-1870).

The declaration of new holidays typically sparks some degree of controversy. For businesses, a new holiday typically means significant additional costs. On top of the holiday pay (essentially pay for non-productive time), any business which must operate will incur additional costs for holiday premiums at time-and-a-half or double time, depending on any existing internal policies or the provisions of a collective agreement.

Throughout Canada, there has been speculation for years that governments would declare a holiday in February. The rationale has been that there is a significant time lapse between Christmas and Easter without a holiday, and Canadians begin to suffer from cabin fever as we tough out the cold winter weather conditions. The break gives us some respite and allows us to spend time with our families.

History

In 1973, the initial vision was that Heritage Day would become a statutory holiday celebrated by Canadians across the country. According to Heritage Canada's Web site:

Heritage is our collective treasure, given to us and ours to bequeath to our children. It lives on within each of us, be it the customs and traditions of our families or the extraordinary landscapes that characterize Canada. Our neighbourhoods reflect the traditions of our communities and the museums, archives, historical societies and libraries that surround us are gateways to the discovery of our past, present and future. Heritage Day was established in 1973 by the Heritage Canada Foundation, and is celebrated the 3rd Monday of February to encourage the preservation and promotion of Canada's nationally significant historic, architectural, natural and scenic heritage.

However, neither the federal government nor any of the provinces have passed legislation to recognize Heritage Day as a statutory holiday. In Alberta and in a few municipalities (e.g., Kingston, Ontario), the first Monday in August is recognized as a civic holiday and is known as Heritage Day. At the same time, other municipalities recognize the same day but call it something else.

Nevertheless, in collective bargaining, unions pressured employers to recognize the day voluntarily. Some acquiesced, but a more typical response was to put language into agreements to the effect that if "Heritage Day" was declared a statutory holiday by the relevant government, the employer would recognize it as part of the contract. Interestingly, in some cases, the language stipulated that if either the provincial or federal government declared the day a holiday, it would be honoured.

In 1989, Alberta became the first province to declare the third Monday in February a holiday, calling it "Family Day". The then Premier Don Getty, cited his personal tragedies involving his son, who had trouble with drug addiction, as a motivator to create a day for families to connect with each other. The Premier felt guilt that he had not been close enough to his son to prevent his going astray. His detractors criticized this move as an abuse of political power used to assuage personal guilt. The underlying sentiment however, was that the declaration would cost employers millions of dollars.

It was not until 2006 that another province, Saskatchewan, followed suit. This was quickly matched by Manitoba and then Ontario. However, in Manitoba's case, the name selected for the holiday was "Louis Riel Day".

There is no uniformity across Canada with respect to the number of statutory holidays that are observed or which days are recognized. Nine statutory days are observed in Alberta, British Columbia, Manitoba, Saskatchewan, Ontario, Nunavut, Yukon and the federal jurisdiction. Newfoundland and Labrador recognizes up to 11 (curiously, the observation of Regatta Day in August is dependent on the weather); the Northwest Territories recognizes 10; Quebec recognizes eight; New Brunswick recognizes seven; and Prince Edward Island recognizes only six.

Issues

Of course, most of the controversy surrounds cost. In Ontario, economists estimate the cost of the holiday to businesses to be in the range of $500 million to $2 billion. (This does not seem to be as much as an estimated range as a wild guess.) While the experience in Alberta has been that the extra costs are eventually absorbed without much trauma, it is more likely that the initial response in Ontario will be a degree of unrest.

The specific issue in Ontario is that the Employment Standards Act, 2000 allows employers to opt out of specific provisions if they provide benefits that overall exceed the provisions of the Act. In many cases, employers already recognize nine or more holidays in their policies or under the provisions of collective agreements and, therefore, are not obliged to give Family Day off as a holiday. Those that have declared that they won't be recognizing the day have already irked labour leaders.

Canadian Auto Workers Union national president Buzz Hargrove sent a letter to Premier McGuinty in November, expressing the union's disappointment with the approach taken by some employers and asking for

"a broad application" of the new holiday to allow workers to celebrate it, "notwithstanding other paid holidays provided by employer policy or collective agreement".
"It would be a terrible irony if Ontario's first Family Day holiday was one that a majority of families could not celebrate together because so many workers are still working", Hargrove wrote (Windsor Star, January 8, 2008).

Other employers have said that they will grant the day, but will trade it for another non-statutory day such as the August civic holiday.

Unions that have previously negotiated contingency clauses that require the employer to recognize Heritage Day, if and when it is declared, may fare a bit better. However, there may be room for employers to argue that

"technically", the government has not declared Heritage Day as a holiday, but rather have named a different holiday not contemplated by the contract language.
Such an argument may depend on the specific wording of the clause. For instance, some collective agreements are specific in defining the day as the third Monday in February. This is common because, in 1985, the Ontario government had designated the third week in February as Ontario Heritage Week and the Monday of that week as Heritage Day. Hence, regardless of what it is called, that day has become a statutory holiday. Arguments to the contrary may be somewhat tortured at best. However, where the language is vague or non-specific, an argument might be made that Heritage Day has not been proclaimed a holiday.

Another counter argument made by union leaders is that there is a specific purpose to granting the day off in February, and therefore, it should be exempt from the greater benefit provisions of the Employment Standards Act, 2000. They argue that Ontarians need the break to escape the winter blues and enjoy time with their families. However compelling their argument may be, it remains that Family Day is not an exception to the greater benefit rule.

On the employer side, the most compelling argument to impose the greater benefit rule is the current state of the economy. With a recession taking hold in the United States, the increased value of the Canadian dollar and significant concessions made by U.S. unions in the auto industry, Ontario manufacturers need to be concerned with cost competitiveness. This holiday only adds to the problem. Thus it is not surprising that employers are only willing to give up the day in exchange for another.

Employee Relations

In so many different contexts, I have advised employers to be careful about technical arguments. Employees do not always grasp the nuances of a technical argument and will merely feel cheated. Thus, despite the increased costs, if an employer can absorb those costs, it should avoid playing games with Family Day. If the costs are going to significantly affect the organization, and there is an opportunity to trade it for a different non-statutory day now recognized, then the Human Resources (HR) practitioner should get in front of people to explain why it is necessary to make this concession. If the collective agreement is silent on the issue, then the same thinking should apply. If the employer needs to have a cost break and wants to take advantage of the legal loophole, the HR practitioner should consult with the union and provide the rationale behind using the greater benefit provisions of the Employment Standards Act, 2000.

If the collective agreement contemplates Heritage Day, or has other contingency language covering declared holidays, then there still should be a consultation to ensure the parties recognize that Family Day is included in those provisions. In one instance I am aware of, the collective agreement already recognizes Heritage Day as the second Monday in February, and the union (not quite in the spirit of the intent of the legislation), wants clarification because it believes Family Day is not the same thing and ought to be recognized as well.

I have no doubt that arbitrators will be busy in the coming months dealing with the fallout of this new holiday. In the meantime, if you are fortunate enough to have the day off, enjoy.

Hugh Secord has established a practice as a mediator/arbitrator in labour relations and employment law matters. Hugh has over 25 years' experience in Human Resources Management and Labour Relations. His background includes senior-level positions in manufacturing, pulp and paper, and logistics. He also holds a B.A. (Sociology/Economics) from the University of Toronto, an M.B.A. (Finance) from York University, and received his CHRP designation in 1997. Hugh can be reached at hughsecord@sympatico.ca.

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