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How Does September 19, 2022 (the National Day Of Mourning) Affect Employers in BC?

September 15, 2022

Employment Law & Employment Standards Act, Business Employment Law and Human Rights, Labour Relations & Union Advice

How Does September 19, 2022 (the National Day Of Mourning) Affect Employers in BC?

With the passing of Queen Elizabeth and her funeral set for Monday September 19, 2022, governments throughout the world are looking to see how to honour Her Majesty’s passing.

In Canada Prime Minister Trudeau announced there would be a National Day of Mourning.  The government published a Proclamation of the Governor General stating, inter alia, “…by this Our Proclamation request that the people of Canada set aside September 19th 2022 as the day on which they honour the memory of Her late Majesty Queen Elizabeth the Second, who passed away on September 8th 2022.”  The Proclamation requires that the “Loving Subjects…take notice and to govern themselves accordingly.”

Is September 19, 2022 a Statutory Holiday?

Unlike the September 30 NDTR holiday, this day of remembrance is NOT a statutory holiday under the Canada Labour Code or (federal) related legislation.

Nor is it a statutory holiday under the BC Employment Standards Act (provincial). The Premier has made it clear that while the BC government will give the day off with pay to provincial employers and shut down government offices including schools and courts, there will be no amendment to the Employment Standards Act to make it a holiday applying to all provincial employers.

The Prime Minister has declared that federal government employees will have a paid day off. But his Minister of Labour, following the outcry of federal employers led by the banks, made it clear that this holiday would not affect non-government federally regulated employers such as banks, telecommunications, or aerospace employers. In a tweet he stated:

September 19, 2022 will be a holiday for federal government employees. It will be a day of mourning for the passing of Her Majesty Elizabeth II, Queen of Canada. Federally regulated employers are welcomed to follow suit, but they are not required to do so. [emphasis added]

Therefore, provincially regulated non-union employers are not required to give their employees the day off with pay.  We encourage employers to follow the direction to provide employees with the opportunity to take a moment of silence on Monday to show their respect for Her Majesty.

Unionized Employers and Collective Agreements

The more difficult question relates to those BC unionized employers who have in their collective agreements language that provides for listed Paid Holidays but adds holidays declared or proclaimed by the federal government.  For example, the BC government collective agreement stated:

Any other day proclaimed as a holiday by the federal, provincial, or municipal governments for the locality in which an employee is working shall also be a paid holiday.

The BC Government relied on that language to say they were obligated to give September 30, 2021 off as a paid holiday to its unionized employees notwithstanding that the NDP chose not to make it a statutory holiday.

The language of the collective agreement in question will be the deciding factor as to whether you as an employer are bound to treat September 19, 2022 as a paid holiday. Therefore, each case will be decided on the specific language in the collective agreement including bargaining history.  We suggest that you consult with your professional advisors including legal counsel if you have a question about your collective agreement.

However, with that caveat, in our view there is a strong argument that the September 19, 2022 day of remembrance will not likely be covered by the various collective agreements that might otherwise incorporate federal holidays.  This day has not been declared or proclaimed as a federal holiday with pay.  The statement by the Prime Minister and as reflected in the Proclamation does not have legal force nor does it purport to impose an obligation on any employer.  That is made clear by the Minister of Labour’s statements that non public service employers are not bound to provide a paid holiday.  Both the federal government and the provincial government are making decisions to give the day off as employers, not as government.

This is of course a one-off holiday so it might be hard for unionized employers to refuse to provide that day off if government employees have the day off with pay.  But the precedent set by giving the day off might be a problem down the road.

If you have any questions about this topic, please do not hesitate to get in touch with us for legal advice specific to your workplace.

Mike Weiler - Contact Info: mweiler@kswlawyers.ca; Cell: 604 250 0090

September 15, 2022

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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MICHAEL J. WEILER

Lawyer

Mike Weiler has more than 35 years experience in the ever evolving world of employment, labour and human rights law. And experience in this area is critical to protect our clients—this is where law is not just a science but most often an art. Judgment is critical for our clients and that is what we bring to the table based on our years of experience. This means first and foremost knowing the law—keeping updated and current. Experience also means knowing the players in the game and their processes—the LRB, the Employment Standards branch, WorkSafeBC, the courts etc. It means not only seeing the...

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CHRIS DRINOVZ

Partner

Chris D. Drinovz is an experienced employment and labour lawyer and the head of the Employment & Labour Group at KSW Lawyers. He was born and raised in Surrey and has practiced law exclusively in the Fraser Valley since 2010. Chris’ expertise covers all facets of the workplace including wrongful dismissal, severance opinions, human rights, discrimination/harassment, employment standards, employment contracts and workplace policies, dismissal planning, employee investigations, pension & benefits, disability and other insurance claims, employment insurance...

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