Immediately following the re-election of the Ontario Liberals, Premier Dalton McGuinty’s government proclaimed Family Day ( February 18, 2008; and the third Monday in February in subsequent years) as a new public holiday. By regulation, Family Day has been added to the list of public holidays under the Employment Standards Act, 2000 (“ESA 2000”), bringing the total number of public holidays to nine:
- New Years Day
- Good Friday
- Victoria Day
- Canada Day
- Labour Day
- Thanksgiving Day
- Christmas Day
- Boxing Day
- Family Day
(Note that the Civic Holiday in August is not a public holiday under the ESA 2000).
While a holiday in February may be quite enjoyable and well-received by those whose employers provide only the minimum number of holidays stipulated by the ESA 2000, the proclamation may be less well-received by employers who already provide greater holiday benefits for their employees through the provision of the Civic Holiday, and other personal or floater days.
This bulletin provides answers to the question of whether every employer is obliged to give Family Day as an additional paid holiday.
In non-union workplaces, holiday benefits may be set out in an written policy. It may be open to the employer to amend the policy by including Family Day as now required by the ESA 2000; however, to compensate, they may delete another holiday not mandated by statute such as a personal day, floater day, Easter Monday, or the Civic Holiday.
In certain instances, where there is no union, paid holiday entitlement may be found in a contract of employment between the employee and employer. In that case, it would be open to the employer to negotiate an amendment to the contract, but would also be open to the employer to decline to recognize Family Day if the contract provides a greater benefit to the employee than does the ESA 2000.
Section 5(2) of the ESA 2000 contains the following provision, which is generally known as the “greater right or benefit” provision:
“If one or more provisions in an employment contract or in another Act that directly relates to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.”
Accordingly, in circumstances where an employer can establish that it provides a greater right or benefit to an employee than that which is afforded by the ESA 2000, the relevant employment standard is no longer applicable, as the greater right or benefit will apply in its stead.
On a similar note, such an analysis may also apply to a unionized workplace. Many collective agreements provide a greater benefit than the minimum statutory public holiday entitlement under the ESA 2000. If the collective agreement provides a greater benefit, the employer may take the position that the greater benefit should be enforced and not the ESA 2000, depending of course on the specific language in the relevant collective agreement. To determine whether a contract or collective agreement provides a greater benefit, it is not enough to simply add up the number of holidays provided, though that is certainly the starting point. After considering the number of holidays, the employer should look at the terms of the collective agreement or contract. For example, consider whether unionized employees are entitled to receive floater holidays that would afford them a greater right than presently provided by the ESA 2000. Consider how a floater day is paid, how a floater day may be accrued or forfeited, and whether management has the right to determine when a floater day is to be taken or whether the day is to be agreed upon by the employer, the union and perhaps the employee.
If, after careful analysis, it is determined that the collective agreement provides a greater benefit than the statute, it may be open to an employer to decline to increase the public holiday benefit by adding Family Day.
The decision as to whether to simply grant Family Day as an additional holiday will be a difficult one. If any employer would like to review its particular contracts, policies or collective agreements so as to consider their options regarding Family Day, Gowlings would be pleased to assist.