CANADIAN UNION OF TRANSPORTATION EMPLOYEES,
BRITISH COLUMBIA RAILWAY COMPANY
(STATUTORY HOLIDAY ARBITRATION)
Sole Arbitrator: H. Allan Hope, Q. C.
There appeared on behalf of the Employer:
Mary E. Saunders, Esq.
There appeared on behalf of the Union:
Terrence L. Robertson, Esq.
A hearing in this matter was held at Vancouver, British Columbia, on the 2nd day of July, 1985.
Bargaining unit employees under the provisions of the collective agreement in force in this dispute are entitled to receive statutory holiday pay for certain statutory holidays, call “general holidays’, provided they meet the criteria set out in the agreement. The dispute, which is referred to by the parties as a policy grievance, raises a question as to whether employees who are absent on Worker’s Compensation Board (WCB) leave are eligible to receive statutory holiday pay. The provision in question reads in part as follows:
4.1 An employee who qualifies in accordance with Section 4.3 of this Article shall be granted a holiday with pay on each of the following general holidays… [thereafter 11 holidays are enumerated]
4.3 In order to qualify for pay for any one of the holidays specified in Section 4.1 of this Article, an employee:
(c) must be entitled to wages for at least twelve (12) shifts or tours of duty during the thirty (30) calendar days immediately preceding the general holiday. This Clause (c) does not apply to an employee who is required to work on the holiday. (emphasis added)
The sole question raised in the dispute is whether employees who are absent from work on WCB leave are employees who are “entitled to wages” within the meaning of the provision. The specific question submitted jointly by the parties reads:
Did the Railway breach Article 4.3(a), (b) and (c) of the Collective Agreement by failing to pay the following employees of B. C. Railway for the statutory holidays outlined below?
Thereafter are the names of five grievors listed who were denied general holiday pay on varying general holidays for the reason that they were absent on WCB leave for one or more of the qualifying shifts. The parties filed a joint statement of facts and the essential issue is summarized in the following paragraph:
4. None of the aforesaid named grievors worked twelve shifts or tours of duty during the thirty calendar days immediately preceding the statutory holiday claimed by reason of each of the grievors being absent from work due to injury for which they were paid Worker’s Compensation.
The position of the union is that the fact that the employees had not actually worked twelve qualifying shifts is not determinative of the issue of eligibility. The union said that the term, “entitled to wages”, must receive a liberal interpretation in favour of the employee because the right to receive statutory holiday pay is a right earned though service and an employee whose absence arises as a result of an injury incurred in the service of the employer is no less entitled to the holiday benefit flowing from the employment relationship than those employees who, fortuitously and by better fortune, are not injured and are thus at work.
An employee on WCB leave, said that union, continues to be entitled to wages in the broad sense and that if the provision was intended to limit the benefit to those employees who are actually in receipt of wages for the qualifying days the language would have so provided in express terms. That is, said the union, the language would read, “must be in receipt of wages for at least twelve shifts,” rather than, “must be entitled to wages”. The union relied in that regard on a body of jurisprudence which has as its essential theme the proposition that statutory holiday pay should not be denied to an employee on an interpretation of collective agreement language which is unduly technical.
In that context the arbitral authorities underline the fact that the implicit purpose of imposing immediate qualifications on the earning of statutory holiday pay is to discourage absenteeism wherein employees extend the holiday by absenting themselves on the days immediately preceding or following the statutory holiday. In Brown and Beatty, Canadian Labour Arbitration (1984) the following extract appears on p. 579:
However, another arbitrator, noting that the purpose of the proviso was to deter voluntary absenteeism, has ruled that even if an employee did not work one of the qualifying days, it would be unreasonable to disqualify him if his failure to work that day could not be attributed to any fault or dereliction of duty on his part.
Similar reasoning has been applied in British Columbia in Cominco Ltd. and Steelworkers  B.C.D.L.A. 350-05 (Larson). The summary of his decision contains the following reference:
The Board determined that statutory holiday pay was an earned benefit and a disqualification of that benefit should be strictly confined.
The same liberal approach to the interpretation of qualifying language was taken in Brinco Mining Limited, Cassiar Division and United Steelworkers of America, Local 6536  2 W.L.A.C. 124 (Black) and Brittain Steel and International Association of Bridge, Structural and Ornamental Iron Workers, Local 712  2 W.L.A.C. 152 (MacIntyre). I am in agreement with the approach favoured in those authorities. That is, I am of the view that qualifying language with respect to statutory holidays should be construed liberally in favour of the benefit and in acknowledgement that an employee should not be deprived of statutory holiday pay on an interpretation of the language that is unduly technical.
The approach described in the passage of Canadian Labour Arbitration is sometimes described as the “volitional test”. In that approach the rationale is that where an employee who otherwise qualifies for statutory holiday pay is rendered ineligible by reason of circumstances beyond his control, the parties will not be taken to intend that result unless the language requires such a conclusion. As stated, I agree with the test, but, in my view, it does not set up a unique interpretive standard.
Arbitrators interpret collective bargaining language in a manner sensitive to the industrial relations implications of a particular type of provision. That industrial relations framework is one of the factors which will guide an arbitrator in the task of interpretation. The approach was addressed by the Labour Relations Board of British Columbia in University of British Columbia and Canadian Union of Public Employees, Local 116  1 Can. L.R.B.R. 13 (Weiler), one of the leading decisions in this province on the principles governing the interpretation of a collective agreement. On p.18 the board discussed the approach as follows:
The arbitrator is trying to decipher the proper meaning which the parties may reasonably be said to have intended for their contract language. In that quest, the arbitrator may draw inferences from other provisions of the agreement, feel constrained to follow the consensus in arbitration precedents, or be concerned about the industrial relations sense of alternative interpretations.
The significance of the parties adopting a particular type of provision as addressed by Prof. J.M. Weiler in Re British Columbia Housing Management Commission and Service Employees’ International Union, Local 224 (1977) 15 L.A.C. (2d) 121 @ 129-31. He summarized his views on p. 130 as follows:
In the absence of any special language or extrinsic evidence to the contrary, an arbitrator must interpret language in a collective agreement according to the normal operation of such a clause as seen through the medium of the evolving consensus among arbitrators.
Applied to the provision at issue in this dispute, that approach dictates that parties who have agreed to a statutory holiday provision will be presumed to have intended that it will apply to all employees in compensation for their service and that qualifying provisions will be interpreted consistent with that intention where the language accommodates that result.
The Labour Relations Board had occasion to consider the industrial relations implications of such a provision in its review of the arbitration award of R. B. Bird, Q.C. in Re Andres Wines (B.C.) Ltd. and Brewery & Soft Drink Workers, Local 300 (1977) 15 L.A.C. (2d) 370. The board decision was made under s. 108 of the Labour Code of British Columbia. In the review decision, Andres Wines (B.C.) ltd. and Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 300 (1978) 16 L.A.C. 422,;  1 Can. L.R.B.R. 251 (Weiler), the board, as stated, considered the industrial relations purpose served by statutory holiday provision.
In the arbitration decision Mr. Bird concluded on pp.386 that regular employees on temporary layoff were entitled to receive statutory holiday pay for statutory holidays arising in a period during which they were absent on layoff. On pp. 378-82 Mr. Bird analyzed the line of authority relied on by the union in this case. However, in reaching his conclusion, he expressed the following caution on p.383:
All of the cases referred to above purport to find the answer to the vexing questions posed concerning the interpretation of collective agreements from the agreements themselves. This arbitration board must avoid the temptation to try to impose the social or economic views of its members and strive to correctly adjudicate the dispute between the parties.
In its review decision the Labour Relations Board found no basis for disturbing the decision of Mr. Bird. In the course of that review the board acknowledged that the benefit eligibility of employees who are in a status other than active employment has been subject to inconsistency in its evolution in arbitral jurisprudence. The deliberations of the board in that regard are reflected in the following passages extracted from pp.425 and 428-29:
A quick glance through the arbitration reports does indicate how often arbitrators are called on to examine and to re-examine this one essential issue: whether and to what extent a temporarily absent worker is entitled to claim tangible benefits under a collective agreement. After 25 years of sifting and refining that problem, a number of doctrines have emerged in the arbitration jurisprudence. What is the legal status of such doctrines? They are principles for the interpretation of the collective agreement. By that, I mean that they are instruments which are available to an arbitrator as a supplement to the explicit language drafter by the parties, guiding arbitrators as they define the contours of a general contract term when it encounters such an apparently unanticipated case.
By and large, the earlier cases dealt with short-term absences, those with readily-perceived time frames … But later cases have stretched that principle to extreme limits: e.g., employees absent from work for over a year by reason of an injury, and in receipt of workers’ compensation benefits throughout that period, may claim 10 or 11 statutory holidays falling during that year. Arbitrators eventually have realized that the answer to this problem does not lie solely in a judgement about whether the grievor remains legally an employee (especially since it is not that easy to justify the dismissal of an employee by reason of a single long-term absence). Instead, the real question is whether may reasonably infer that this kind of employee was intended by the parties to enjoy the contract benefit in question … (emphasis added)
In this dispute the interpretation urged by the union invokes the same result that the board described in Andres Wines as stretching the principles to “extreme limits”. That is, it would extend statutory holiday pay to employees on WCB leave during periods of absence which would include employees absent for a year or more if those circumstances were to arise. The principles of interpretation enunciated in Andres Wines by Mr. Bird and expanded upon by the Labour Relations Board require me to recognize that it is the collective agreement which governs a dispute. That essential principle was acknowledged by Mr. Bird to be the focal point of his analysis. Indeed it is a fundamental principle urged by the Labour Relations Board in both Andres Wines and UBC and CUPE.
In UBC and CUPE the decision starts with the proposition that the unique nature of a collective agreement requires a broad and liberal approach to the task of interpretation. On p. 16 the board said:
Secondly, it is important in industrial relations that the arbitrator decipher the actual intent of the parties lurking behind the language which they used: and not rely on the assumption that the parties intended the “natural” or “plain” meaning of their language considered from an external point of view. An employer and a trade union don’t simply negotiate about an isolated transaction and then go their separate ways. They have to live together for a long time and resolve a great many problems which will arise over the course of their relationship. Suppose the parties do have a clear understanding about the bargain they have reached, but use language which poorly expresses their intended meaning: what will happen if a rule of law prevents the aggrieved party from establishing that intent? The likely result is an atmosphere of distrust between the parties and a potential for future industrial unrest, either during the contract term or at negotiations for its next renewal.
But, having prescribed the liberal approach to be taken in the admission and consideration of evidence directed at disclosing the actual intent of the parties, the board was careful to preserve the fundamental deference to contract language which is the cornerstone of the common law of contract. See: Prenn v. Simmonds,  3 All E.R. 237, as cited in UBC and CUPE @ p.15. In UBC and CUPE the board prescribed a more expansive approach to the admission and consideration of extrinsic evidence than is applied in the common law - but it was careful to retain a decent respect for the concept of the sanctity of contract as that concept is expressed by the House of Lords in Prenn v. Simmonds. The board, for instance, emphasized in UBC and CUPE that proof of a particular intent in the parties must be proof of a mutual intent. On p. 20 the board said:
First - and most important - the arbitrator is looking for the mutual agreement of both parties, not the unilateral intentions of the one side. Without some reciprocal assent from the other side, the fact that one party had an intention may indicate no more than what it wished to achieve and it is question-begging to conclude from this evidence alone that its wish has been fulfilled.
In addition, the board emphasized that the process of interpretation is aimed at the interpretation of the written instrument, not the construction of a surrogate instrument based on an arbitrator’s assessment of extrinsic evidence. On p. 17 the board said:
As we stated at the outset, a collective agreement is a bargain which must legally be contained within a written document. If the parties wish to change or add to the existing terms, they must express any such arrangements in writing as well. Accordingly, arbitrators should not take account of evidence which is designed to prove that the parties have agreed orally to a variation in their collective agreement. This is the kernel of truth expressed in the traditional exclusionary doctrine: the arbitrator simply has no jurisdiction to enforce obligations which are separate and independent from the written collective agreement reached by the parties.
The board did contemplate that the informal nature of collective bargaining can result in collective bargaining language which obscures the true intentions of the parties. In response to that practical reality the board, as stated, contemplated a liberal approach to the admissibility and consideration of evidence directed at proof of what the parties meant by their selection of particular language. On p. 18 the board said:
Accordingly, in any case in which there is a bona fide doubt about the proper meaning of the language in the agreement - and the experience of arbitration is that such cases are quite common - arbitrators must have available to them a broad range of evidence about the meaning which was mutually intended by the negotiators. In our judgement, it is not consistent with s. 92 of the Code for arbitrators to be prevented by artificial legal blinkers from looking at material which in real-life is clearly relevant to an accurate reading of disputed contract language.
When the board came to apply that principle to the facts under review in UBC and CUPE, it expressed by implication what it perceived to be the elements of a bona fide doubt. On p. 19 the board said:
When one appraises these two alternative interpretations in light of the language on the surface of the collective agreement, neither is logically compelling. Each is a reasonably plausible construction of schedule A, and thus the arbitrator must be left with some bona fide doubt about the mutual expectations of the parties respecting the issue.
In this dispute a question arises as to whether the disputed language incorporates “two alternative interpretations “, neither of which is “logically compelling” and both of which affords a “reasonably plausible” interpretation of the general holiday provisions. In my view the language does not afford of two such meanings and , in particular, does not support the meaning urged by the union.
Where the language gives rise to uncertainty as to the intentions of the parties an arbitrator has a jurisdiction which is more broad than that acknowledged in the common law to seek out the intentions of the parties. Nevertheless, it is the language that governs. Even if I can presume, as was the case in Andres Wines, that the parties failed in collective bargaining to address their minds to the specific application giving rise to the dispute, I have no mandate to impose on them what I consider to be an appropriate provision. Here the agreement does not sustain the interpretation urged by the union. It would be necessary to add to the language to achieve that meaning.
The decision in Andres Wines does not sustain that result, as was explained in the later decision of the board in British Columbia Forest Products Ltd. (Cayuse Logging) and International Woodworkers of America, Local 1-18, May 16, 1980, unreported, L72/80, (MacIntyre). On p. 4 the board said:
… the Board has indicated that an arbitrator should not throw up his hands in despair, but should draw a reasonable inference of the presumed intent of the parties, had they addressed their mind to this one particular case. In both of these situations, various form of evidence are available to arbitrators, and past practice is one of these forms. If one piece is missing from the jigsaw puzzle, the rest of the picture may indicate the colour of the missing piece. But that is a far cry from painting a new picture.
Here the language uses a term which implies that something more than the status of employee is required to qualify for general holiday pay. It may be that if the parties had addressed that issue in bargaining they would have agreed that the disputed provision should apply to employees on WCB leave - but there is no basis in the language for me to infer that result. In particular, when the provision is read in the context of the entire agreement, the implication is that the benefit was not intended to be applied to employees absent on WCB leave. I turn now to that further aspect of the language issue.
The initial problem confronted by the union, as stated, is the selection of the term, “entitled to wages”. In the decisions under review by Mr. Bird in Andres Wines and by the Labour Relations Board in its review of his award, the factor used by arbitrators to sustain an implication of a mutual intention to grant statutory holiday pay to employees not engaged in active employment is the fact that the language in those agreements extended the benefit to “employees:. It was concluded that the term “employee” does not imply active employment in and of itself. In its review of the decision in Andres Wines the board said on p. 427:
In any event, the pendulum has now swung in the other direction and many arbitrators take the view that the general term “employee” in a contract provision is not to be read as limited to the active employee. It includes anyone who is in a legal employment relationship which has not yet been properly severed under the contract. And if the individual is legally an “employee”, he thereby will be entitled to all the benefits provided by the collective agreement to employees … (emphasis added)
The language under consideration with respect to the statutory holiday pay aspect of the dispute in Andres Wines is set out in the decision of Mr. Bird on p. 375. The operative part reads; “Employees shall be paid for the above-mentioned statutory holidays at their regular rates”. That language cannot be compared with the provision in this dispute which limits statutory holiday pay - not simply to “employees” - but to employees who are, “entitled to wages for at least 12 shifts”. In this dispute it is the language that defeats the interpretation urged by the union.
Whatever implication arises from the fact that the parties agreed to a statutory holiday provision, the implication cannot defeat the language of the agreement itself. That reality was addressed in the context of vacation pay in Re Toronto General Hospital and Ontario Nurses’ Association (1977) 16 L.A.C. (2d) 113 (Brown). The decision dealt in one of its aspects with the meaning to be ascribed to the term “active employment”. The grievor, a registered nurse, was absent from work on WCB leave and her employer responded to her absence by depriving her of a number of benefits under the collective agreement, including vacation entitlement and, consequentially, vacation pay.
The annual vacation entitlement provision of the agreement provided for an employee to receive “one-twelfth of the nurse’s applicable vacation scale for each full calendar month of active employment”. The vacation pay provision provided for the payment of vacation pay based upon hours of work. In addition, the benefits provision limited eligibility for vacation benefits to nurses “in the active employ” of the employer. The arbitrator noted on p. 115 that there was, in his view, no difference between the two terms. He further concluded that the modifying term, “active”, defeated any presumption that employment as a bare status would meet the test implied in the language.
The arbitrator concluded on pp. 118-19 that the language would not permit the conclusion that the parties intended periods spent on WCB leave were to be included as periods of active employment even though other forms of absences, including paid leaves of absence and absences on sick benefits, did fall within the language by express references. The exclusion of employees absent on WCB leave did not respond to any apparent industrial relations purpose or rationale. Nevertheless, the arbitrator found the language incapable of sustaining an inference that “active employment” could include employees absent on WCB leave. The arbitrator summarized his view on p. 119 as follows:
For the board to imply that such circumstances [WCB Leave] was included, would require an addition to the agreement of specific language, and the board is precluded under art. 10.10 of the agreement from doing so. Sickness benefits supplied under the terms of the collective agreement are the same as compensation benefits provided under the Workmen’s Compensation Act, and if this was the intent of the parties to include employees covered under workmen’s compensation benefits as active employees, then the collective agreement must unequivocally make such a provision.
The employer cited the Toronto General Hospital Case in argument and sought to rely on its reasoning as having application by analogy to the facts before me. In addition, the employer sought to rely on a decision of the Canadian Railway Office Arbitration with respect to a similar provision. In that decision, Canadian Pacific Railway Company and Brotherhood of Maintenance of Way Employees, Case No. 213, may 12, 1970 (Weatherill), the arbitrator was called upon to interpret the following language:
2. In order to qualify for pay for any one of the holidays specified in Section 1 of this Article, an employee…
(c) must be entitled to wages for at least 12 shifts or tours of duty during the 30 calendar days immediately preceding the general holiday..
That language, if no identical, is similar in all material aspects to the language in dispute before me. In that decision, as in this decision, the question was whether an absence on WCB leave fell within the term, “entitled to wages”. Prof. Weatherill concluded the language was not intended to encompass employees who were absent on WCB leave. The railway submitted that the decision should guided my resolution of this dispute.
The significance of prior arbitral decisions on similar issues was considered by the Labour Relations Board of British Columbia in its decision in Board of School Trustees, School District No. 57, Prince George and International Union of Operating Engineers, Local 8585  1 Can. L.R.B.R. 45 (Weiler). In that decision the board was dealing with a prior award between the same parties but it is clear that the board intended the principles to extend to other decisions relevant to the issues in dispute.
It is acknowledged in labour arbitration that there is a common law of the collective agreement which can be expected to influence the resolution of disputes which raise similar issues. The Labour Relations Board make it clear in School District No. 57 on pp. 51-2 that arbitrators are not bound to follow previous decision but that prior decisions should not be ignored unless “the earlier award clearly deviated from the established consensus of arbitrators about the proper principle to be applied”.
In Andres Wines the board, on p. 435, addressed the significance of prior arbitration decisions in the following terms:
But there is nothing in the Labour Code which even addresses, let alone prefers, any one of the alternative positions about whether and to what extent laid-off employees should enjoy contract benefits. The solution to that problem must be found in a “common law” of the collective agreement, whose ultimate source is evolving jurisprudence of Canadian arbitrators. There is a crucial difference between this law of the contract and the law of the statute, and the Board must not blur the line between the two. What is the rationale for that distinction? It lies in the nature of these contract principles themselves. As is indicated by this example of the rights of the absent employee, such a principle emerges only after a long period of gestation, after many arbitrators have examined the problem in a variety of contexts, and after their extended reflection generates some degree of consensus. The tacit assumption of that process is that the award of one arbitrator influences others through the persuasive force of its analysis, not as a binding precedent.
The railway relied heavily on the fact that the decision of Prof. Weatherill in Case No. 213 involved the predecessor to the union in this dispute and that the decision could, for that reason, be seen as having more direct application to the issue. Whatever may be said for that fact, the relevant language in the dispute, as stated, is identical in all material respects, the issue in dispute is identical to the issue before me and thus the decision of Prof. Weatherill should heavily influence my determination of the dispute unless I find it to be wrong in principle.
I do not find it to be wrong in principle. I agree with its reasoning. In particular, I do not find it to be a departure from the liberal approach which is urged with respect to the interpretation of provisions relating to the eligibility or employees for statutory holiday pay. The difficulty for me is the same as the one confronted by Prof. Brown in Toronto General Hospital and by Prof. Weatherill. That is , the language and structure of the collective agreement does not accommodate the interpretation urged. Not only does the term, “entitled to wages”, contemplate something more that retention of employee status, but the interpretation of the union would create an internal inconsistency which cannot be reconciled.
The inconsistency arises in a reading of Article 4.3 (b) of the collective agreement. That article deals expressly with the implication s of an employee being unavailable for work on a statutory holiday due to an injury. The provision reads as follows:
4.3 In order to qualify for pay for any one of the holidays specified in Section 4.1 of this Article, an employee:
(b) must be available for duty on such holiday if it occurs on one of his work days excluding vacation days. This Clause (b) does not apply in respect of any employee who is laid-off or suffering from a bona fide injury or who is hospitalized on the holiday, or who is in receipt of, or who subsequently qualifies for, weekly sickness benefits because of illness on such holiday … (emphasis added)
It can be seen that Article 4.3 (b) provides that an employee who is not available to work on a general holiday that falls on what is otherwise an ordinary work day for that employee is not eligible to receive holiday pay for that particular holiday. In Article 4.3 (b) the parties have made express provision excusing employees who are otherwise eligible but who would be disentitled because an injury kept them from being available for work on the day of the holiday.
In light of that express language dealing with the rights of employees absent due to injury, it is inconsistent to find an implied term that employees absent due to injury will also be excused from the application of the 12-shift qualification set out in the very next provision, being Article 4.03 (c). If the exception is made express in one provision, one cannot presume the failure to extend the exception to a related provision is without meaning. Not only does the difference in structure imply a difference in meaning, it is a difference which makes sense.
In Andres Wines the Labour Relations Board, as stated, found that extending statutory holiday pay to employees on WCB leave by reason only that they occupied the status of employee was an extreme result of the reasoning that “employees’ should be entitled to all benefits under the agreement which are not taken away expressly or by necessary implication. That was because the reasoning could result in employees on long-term absences receiving benefits, such as general holidays, which are normally seen as being earned through employment.
But the board saw that result as consistent in short-term absences where on the opposite side of the pendulum’s swing, employees on a one-day WCB leave could lose statutory holiday pay because their absence due to injury coincided with a statutory holiday which arose during their normal work schedule. Apparently Article 4.03 (b) exists to prevent that unfair result and its very presence mitigates against a similar intent arising by implication under Article 4.03 (c) where the absence could involve a short-term but could also include absences of one year or more.
The Labour Relations Board found that result extreme even where the term “employee” is not modified in the context of the benefit claimed. It is a more extreme result where, as here, the term is modified and the qualifying phrase is, “an employee … entitled to wages”. An employee on WCB is not entitled to wages”. The employee is receiving benefits which are designed to compensate for lost wages. If entitlement to wages means nothing more than the status of employee, then the 12-day qualifying period is meaningless as a distinction. The status of employee cannot be seen as something that is present or absent on different days.
The status of employment remains until employment is terminated by some lawful means. See Wm. Scott and Company Ltd. and Canadian Food & Allied Workers union, Local P-162,  1 Can. L.R.B.R. 1  2 W.L.A.C. 585 (Weiler). Nor can the 12-day requirement be seen as a requirement that the status of employee exist for a prescribed period prior to the holiday. That requirement is set out in another provision. In particular, Article 4.3 (a) reads:
4.3 In order to qualify for pay for any one of the holidays specified in Section 4.1 of this Article, an employee:
(a) must have been in the service of the Railway and available for duty at least thirty (30) calendar days.
That provision, when read in conjunction with the 12-shift requirement in Article 4.3 (c), implies that “entitled to wages for at least twelve shifts” means something more than having employment status for twelve shifts. I agree with the union that, in industrial relations terms, the apparent purpose of provisions limiting entitlement to statutory holidays is to discourage pre-holiday or post-holiday absenteeism. I further agree that an employee who is absent due to a compensable injury sustained in the service of his employer cannot be seen as occupying the same category as employees who are absent without authorization. But that does not mean that an employer cannot seek to tie the benefit to active employment. Here the intent implicit in Article 4.3 (c), when read in the context of the entire provision, is to do more than discourage absenteeism. The apparent purpose it to limit the benefit to employees engaged in active employment in the one-month period prior to each holiday.
Here the interpretation urged by the union, while it may be compatible with the industrial relations sense of the circumstances, it is not supported in the language. In fact it is, as noted, contrary to the structure of the collective agreement and the meaning of the words in dispute. Nor is there evidence or circumstance beyond the language which sustains the implication that the parties meant to have employees absent on WCB leave made eligible to receive the benefit despite the language of the agreement.
The most I could conclude on the evidence is that the parties failed to address in bargaining the specific question of whether employees on WCB leave would continue to be eligible for general holiday pay. As stated, that was the finding made in Andres Wines. But here the fact that the parties did not specifically address the issue in bargaining, (assuming that fact to be correct), is irrelevant because the language in this dispute, unlike the language in Andres Wines, does not accommodate the meaning upon which the union must rely in order o succeed.
Here the consequence of accepting the union submission would be the need to alter or amend the agreement in a manner contrary to its terms. I conclude that the union has failed to establish that the failure to pay general holiday pay to the grievors was a breach of the collective agreement. In the result the question posed is answered in the negative and the grievance is dismissed.
Dated at the City of Vancouver, in the Province of British Columbia, this 17th day of September, A.D., 1985.
H. ALLAN HOPE, Q.C. - Arbitrator