Amendments to BC ESA Require All Employers to Provide National Day for Truth and Reconciliation Regardless of Collective Agreement Language

This article was prepared with the assistance of Joy Marlinga, Roper Greyell Summer Student, 2023.

On March 9, 2023 and as summarized in a previous article, the Provincial Government of British Columbia passed Bill 2, which recognizes National Day for Truth and Reconciliation (“NDTR”) on September 30th of each year as a statutory holiday. At the time, we advised that for employers with a unionized workplace, the effect of Bill 2 would vary based on collective agreement language, as statutory holidays are subject to a ‘meet or exceed’ test under the B.C. Employment Standards Act. The view at the time was that, if a collective agreement when viewed globally had at least as generous statutory holiday provisions as the ESA, there may not be an obligation to provide NDTR on top of the existing collective agreement entitlements.

However, on May 13, 2023, the Provincial Government issued a further amendment to the ESA that exempts NDTR from the ‘meet or exceed’ test. As stated in a press release issued by the Province, this means that:

… unionized employers [will be required] to provide their employees with statutory holiday pay on this day, even if the collective agreement does not include the NTDR as a statutory holiday, but still ‘meets or exceeds’ the ESA’s statutory holiday provision.

Put another way, the key takeaway for unionized employers is that even if their collective agreement currently “meets or exceeds” the ESA provisions on statutory holidays, they will still be required to provide for this statutory holiday. For example: including NDTR, there are now 11 statutory holidays in BC. Even if a collective agreement provides for 12 holiday days (i.e., because it includes Easter Monday and Boxing Day, which are not statutory holidays per the ESA), the employer will still need to provide for NDTR on top of the existing 12 days.

Unionized employers will also need to closely review their collective agreements to ensure that any rules around statutory holidays (specifically for NDTR) are compliant with the minimum requirements of the ESA, for example with respect to eligibility for the day and the use of alternate days.

Bill 2 was introduced by the BC government in response to Call to Action #80 by the Truth and Reconciliation Commission to recognize a holiday which would honor residential school survivors, their families, and their communities.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.