In a recent arbitration between BC Ferry Services Inc. (“BC Ferries”) and the BC Ferry and Marine Workers’ Union, an arbitrator determined that certain employees who worked a non-traditional work schedule were precluded from receiving additional holiday pay for the new British Columbia Family Day holiday.
The provincial government established the Family Day statutory holiday after the current collective agreement between the parties came into force. The union filed a grievance alleging that all employees working under a particular work schedule were entitled to a paid holiday on Family Day. The employer argued that the collective agreement did not entitle these employees to additional compensation as their salary was inclusive of all statutory holidays.
BC Ferries employs over 3,000 employees, many of whom work pursuant to non-traditional work schedules codified in the collective agreement. The employees in question worked 2:1 patterned shifts and therefore worked significantly less hours per year than employees who worked a traditional shift pattern. The collective agreement expressly included a “built-in allowance” for paid holidays for the employees who worked the 2:1 patterned shift. In other words, it was part of the collective agreement that these employees, in exchange for working less hours but receiving the same salary as other employees, had statutory holidays included as part of their salary.
The employer argued that the introduction of the new Family Day statutory holiday did not confer an additional monetary benefit to these employees. The arbitrator agreed.
The object when interpreting a collective agreement is to discover the mutual intention of the parties. The primary tool employed during interpretation is the collective agreement itself. That being said, an arbitrator will consider extrinsic evidence where doing so helps reveal the mutual intention of the parties.
Counsel for both parties led evidence about the parties’ bargaining history dating back to the 1970s and the language of the collective agreement itself, including the reference in the collective agreement to a “built-in allowance” for designated paid holidays. Based on this evidence, the arbitrator found that the interpretative principles traditionally applied when reviewing a collective agreement “support a conclusion that the Family Day statutory holiday is included in the pay and work schedules” for the employees in question.
This decision was important for the employer from both a legal and a practical perspective. Legally, the decision reaffirms the approach that discovering the mutual intention of the parties is paramount when engaging in an interpretative analysis. Practically, the arbitrator’s decision had significant operational cost consequences for the employer, as a Union victory would have required the Employer to pay upwards of $800,000 in additional wages per year.
Questions relating to the content of this article may be directed to Peter Csiszar.