Ontario Labour Relations Board
File No.: 0610-99-ES Employment Practices Branch File No.: 60006639 Date: September 8, 2000
Between: Mike Wallace, Applicant v. Bayer Rubber Inc. and Ministry of Labour, Responding Parties.
Before: Laura Trachuk, Vice-Chair.
Appearances: Susan Ursel, Mike Wallace and Ken Glassco for the applicant; Martin J. Addario, Ron A. LeClair and Linda McDonald for the responding employer; no one appearing for the Ministry.
DECISION OF THE BOARD
1This is an employee request for review of a decision by an Employment Standards Officer pursuant to section 67 of the Employment Standards Act (the "Act"). The Officer found, pursuant to subsection 5(1) of the Act, that the applicant was not entitled to take the Boxing Day holiday as the collective agreement between his union and employer provided a greater benefit respecting holidays than the Act.
2A hearing was held with respect to this matter on August 16, 2000. No one appeared on behalf of the Ministry. At the outset of the hearing the responding party employer (referred to as "the company") objected to the proceeding on the basis that it was barred by subsection 64.5(2) of the Act. The company argued that, as there was no evidence that the Director had exercised his discretion to allow this complaint to proceed as required by subsection 64.5(3) it should be dismissed. The Ministry had sent a letter to the Board and the parties indicating that it would be its position that the Director had exercised his discretion. The Board ruled that it would reserve its decision on this objection. In view of the Board's decision to dismiss the request for review the Board does not find it necessary to determine this issue.
3The facts are not in dispute. The applicant filed a complaint asserting that he should be entitled to have Boxing Day off as it is one of the holidays specified in the Act. The Officer investigating that complaint wrote a letter to the company indicating that it appeared that it was violating the Act by not providing the Boxing Day holiday. The company responded that its collective agreement provided a greater benefit than the statute and after considering the matter the Officer agreed and decided not to issue an order.
4The Employment Standards Act provides for eight public holidays including, since 1989, the 26th of December (known as Boxing Day). The collective agreement between the applicant's union and the responding party provides for nine holidays but not December 26th. It also provides for two additional floating days off, the dates of which the employees can choose by a vote held each November. The collective agreement provisions predate the addition of the 26th of December as a public holiday under the Act. Sometimes the employees do choose Boxing Day as one of their floater days, other years they have chosen December 23 if that results in a longer holiday. Some years they have chosen to take the floater days in February or March so that they will have a holiday in each month or to take them in the summer.
5Subsection 5(1) of the Employment Standards Act provides:
- (1) Where terms or conditions of employment in a collective agreement as defined in the Labour Relations Act confer a higher remuneration in money or a greater right or benefit for an employee respecting holidays than the provisions of Part VII, the terms or conditions of employment shall prevail.
6The applicant argues that the holidays set out in the Act are mandatory and that the parties cannot contract out of the Act. He argues further that the holidays included in the collective agreement are not a greater benefit. He claims that the two floater days are not comparable to the holidays set out in the Act. According to the applicant they cannot be used in determining whether the agreement provides a greater benefit as they are not part of the holiday entitlement. He argues that the floater days are not comparable to the holidays in the Act as the holidays in the Act are intended to provide a common day of rest for workers and their families. By not having the Boxing Day holiday, the applicant is deprived of the significant benefit of the extended Christmas holiday with his family that other workers enjoy. The statutory holidays provide a social purpose and are not merely a monetary benefit.
7The applicant also argues that when a new statutory holiday is added to the Act, unionized employees should also be entitled to receive it even if the collective agreement already contains more than the statutory number of holidays. If unionized employees do not receive the benefit of such improvements to the Act they will "fall behind" other workers. The applicant says that the company cannot set off prior promises against future obligations.
8The company replies that the two floater days are part of the holiday complement available to employees and should be included in comparing the benefit provided in the collective agreement with the provisions of the Act. However, the company argues that in any case, the collective agreement provides for nine specific holidays compared to the eight in the Act and contains therefore a greater benefit without even considering the two floater days. The company submitted a number of decisions on point which support its position.
Decision
9Subsection 5(1) of the Act clearly contemplates that unions and employers may agree to different holidays that those found in the Act. The statutory holidays are not mandatory for unionized employees providing the union and the employer do not agree to a lesser right or benefit. In this case the Board finds that nine defined holidays plus two others that the employees can choose is a greater benefit than the eight holidays included in the Act. The Board notes that employees can use one of the floater days for Boxing Day if they choose. However, the flexibility they have in deciding when to take those holidays is a benefit even if it means that some years they have to work on December 26 when others, including their families do not have to.
DISPOSITION
10The Board finds that the Officer's decision not to make an order should be affirmed. This request for review is hereby dismissed.
"Laura Trachuk" for the Board