Submission

A Proposal Respecting the General Holiday Provisions of the Canada Labour Code

Bahá'í Community of Canada
Dr. Gerald Filson, Director of External Affairs
Bahá'í National Centre

Executive Summary

The general holiday provisions of the Canada Labour Code, Part III sets out certain holidays which have been historically defined by western Christian practices and cultural traditions. These holidays typically do not meet the religious needs of many minority employees. While the Code provides for a limited substitution of the general holidays, it does not provide a means for individual members of minority faiths and beliefs to substitute general holidays in order to meet their religious obligations. The definition and the limited substitution of the general holidays in the Canada Labour Code have the effect of discriminating against employees of minority faiths and beliefs.

Employers have the legal obligation to accommodate employees up to the point of undue hardship. A variety of accommodations are used, some of which may result in further inequities. Allowing individual employee substitutions of general holidays would be another mechanism for the employer to meet their duty to accommodate in a manner that is fair and equitable.

We are of the view that labour standards legislation must reflect our diversity as a nation and provide access for employees to meet their subjective religious obligations.

We believe your Commission's review to be an excellent opportunity to build the concept of equality into the Canada Labour Code. With this in mind, we are proposing an amendment to the Canada Labour Code, with two alternative clauses, to extend the rights of employees by allowing individual employees to substitute the general holidays in the Code in order to meet their religious obligations.

Background

The Canada Labour Code provides for holidays with pay (s.192) in respect of the general holidays set out in the Code: New Year's Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day (s.166). In addition, the definition of general holiday includes any day substituted for any such holiday pursuant to section 195.

The general holiday provisions of the Code understandably evolved to fit mainstream Canadian society of an earlier period. In the 21st Century our society is much more diverse and cosmopolitan. A cursory review of the religious statistics from Statistics Canada's 2001 census reveals more than 2.2 million followers (+7.6%) of minority faith communities in Canada, including Muslim, Jewish, Buddhist, Hindu, Sikh, Orthodox Christians, Aboriginal Spirituality and other religions; and some 4.8 million people (16.2%) with no religion. Moreover, religious beliefs can vary from a religion's established doctrine or they can be entirely personal. Such a diversity of religious communities and beliefs, and the inferred diversity of religious practice, underscores the need for labour standards legislation in Canada that accommodates the differences among communities and individuals.

Given the historical roots of the legislation, it is not surprising that the prescribed general holidays do not accord with the religious observances and holy days of many faith communities and individual beliefs. Christmas Day and Good Friday are the two obvious general holidays with roots in Christianity, and which are not historically found in other religious traditions. For example, within our own religious tradition, the Bahá'í Faith, there are nine holy days observed each year on which work is prohibited. Six of these holy days on average fall on a workday in any one year. Similarly, other religious traditions have requirements for their own religious observances.

The Canada Labour Code provides for a limited substitution of the general holidays. Subject to certain conditions, section 195 of the Code provides for the substitution of any other holiday for a general holiday:

Section 195 does not allow an individual employee to substitute a general holiday with another day in order to meet the employee's religious obligations. The existing provisions require a majority concurrence, or implied majority concurrence where there is a collective agreement, of the employees in the workplace. While section 195 may alleviate some problems in a small number of cases (e.g. family business where the employees are of one faith), its provisions remain problematic for individuals. The substitution provisions appear to have more application of a collective social nature (e.g. substituting a mid-summer company picnic day for Labour Day), rather than for meeting the needs of religious minorities.

The definition and the limited substitution of general holidays in the Canada Labour Code have the effect of discriminating against employees of minority faiths and beliefs.

At present, employees who wish to satisfy their religious obligations in observing holy days must rely on their employers' duty to accommodate up to the point of undue hardship. The duty to accommodate is a legal obligation, which has been affirmed by the courts, including the Supreme Court of Canada.

Accommodations for employees to observe religious holidays have been varied. Some accommodations, such as liquidating vacation entitlements and taking leave without pay, typically result in inequitable treatment in terms of pay and may be discriminatory.¹ Rearranging shift schedules and working alternate days to make up for religious holidays taken without pay are less adverse accommodations. However, we will recommend an alternate solution through amendment to the Canada Labour Code.

In two leading cases covering the duty to accommodate, commonly known as Meiorin² and Grismer³, the Supreme Court, commenting on the requirements of human rights legislation,

"proposed that employers should no longer simply rely on an individualized accommodation response to requests from employees who face barriers in the workplace. Employers and service providers must make sure that they build accommodation into their policies and practices as far as possible, up to the point of undue hardship…"⁴

"Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, insofar as this is reasonably possible. Courts and Tribunals must bear this in mind when confronted with a claim of employment related discrimination. To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible. A standard that allows for such accommodation may be only slightly different from an existing standard but is a different standard nonetheless" [emphasis added].⁵

"Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups with their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. Such characteristics are frequently based on bias and historical prejudice and cannot form the basis of reasonably necessary standards" [emphasis added].⁶

We ask the Commission on the Review of Federal Labour Standards to consider: since the Supreme Court has interpreted that the duty of employers is to "build conceptions of equality into workplace standards", there may also be an onus upon legislators to ensure that labour standards legislation likewise reflects conceptions of equality. Since the existing general holiday provisions of the Canada Labour Code have the effect of discriminating against employees of minority faiths and beliefs the Code should be amended to bring more flexibility and equality through the substitution of general holidays.

Recommendation: A Proposed Solution

In order to incorporate conceptions of equality into the labour standards legislation, we propose that section 195 of the Canada Labour Code be amended by the inclusion of an additional subsection, to be 195.(4), for which we offer two options.

The first and preferred option for subsection 195.(4) provides an employee with the right to substitute any other holiday of the employee's choice, to meet his/her subjective religious obligations, for a general holiday, insofar as this is reasonably possible. It anticipates that enforcement issues will be dealt with pursuant to the Canada Labour Code. It reads:

An employee may request his employer to substitute any other holiday for a general holiday to satisfy his religious obligations, and the employer shall allow the substitution, insofar as this is reasonably possible, and the substituted holiday shall, for that employee, be deemed to be a general holiday for the purposes of this Part.⁷

The second option for an amendment is permissive, provides the mechanism to allow for individual substitutions for any reason, and anticipates that complaints of discrimination will be dealt with under the Canadian Human Rights Act. It reads:

An employer may for an employee substitute any other holiday for a general holiday if the employer and the employee agree to the substitution, and the substituted holiday shall, for that employee, be deemed to be a general holiday for the purposes of this Part.⁷

The proposed amendment does not relieve an employer of their duty to accommodate, but provides a means for the employer to meet their duty to accommodate in a manner that is fair and equitable. Furthermore, while some cost should not be a consideration, we believe the proposed amendment will prove to be cost-effective, if not altogether cost-neutral, for most employers.

In summary, an amendment to the Canada Labour Code, substantially as proposed, will be a leading innovation in Canadian employment standards legislation⁸ - one which will help secure for employees of minority faiths and beliefs a barrier-free workplace. Employers will have an additional mechanism to fulfil their duty to accommodation in a practical cost-effective manner. Such an amendment will demonstrate the commitment of the Canadian Government to equality in the workplace.

The Bahá'í Community

The Bahá'í Community of Canada is made up of some 30,000 Canadians from backgrounds that are truly representative of Canada's rich cultural and ethnic diversity. There are French-speaking and English-speaking Bahá'ís, and more than 18% of Canadian Bahá'ís come from First Nations and Inuit backgrounds; another 30% are recent immigrants or refugees. Canadian Bahá'ís live in every province and territory and are spread among 1200 localities. Their economic and social backgrounds are as diverse as their cultural and religious heritage.

The Bahá'í Faith, founded in Iran in 1844 and adhered to today by more than five million members worldwide, was introduced to Canada in 1898. The National Spiritual Assembly of the Bahá'ís of Canada, the national governing council of the Bahá'í Community of Canada, was incorporated by an Act of the Canadian Parliament in 1949. The Canadian Bahá'í National Centre is located in the Toronto area.

Bahá'ís feel at home in Canada in large part because so many of their central Bahá'í values are shared by their fellow Canadian citizens. Unity in diversity is the Bahá'í watchword, just as it is in Canada itself. World-mindedness, the importance of justice, the rule of law, human rights and responsibility for others, fairness and equity, consideration for minorities, and the value of freedom and world citizenship are values that Bahá'ís share with Canadians.

Though Bahá'ís in nearly 200 countries are devoted to the task of contributing to a global community that upholds these values, still, local community life, the importance of the family, the dignity of the individual, and the elimination of prejudices of all kinds animate Bahá'ís in their daily life. They see service to others as the touchstone of what genuine spirituality and religious faith is all about.

Loyal to government, devoted to the common good, free of superstition and exclusivity, Bahá'ís strive to eliminate injustice, suffering, and human deprivation. The equality of women and men, education for all, the training of the mind, cultivation of the arts, and the creation of a moral culture in which everyone has the opportunity to give expression to the gifts of her or his particular spirit, these are the hallmarks of the Bahá'í ethos.

For its part, Canada, through its government, has done much to assist the Bahá'í Community, notably by welcoming and helping to settle several thousand Bahá'í refugees following the revolution in Iran (the birthplace of the Bahá'í Faith) in 1979, which brought to power a fundamentalist regime that turned with ferocity on the Bahá'í community, Iran's largest religious minority. Canada's government has continued to play a leading role in calling the world's attention to the plight of the Bahá'ís, specifically by co-sponsoring resolutions at the United Nations Commission on Human Rights and the U.N. General Assembly for more than 12 consecutive years. Canada's international development agency, CIDA, has worked closely with the Bahá'í Community of Canada on international development projects in India, Central and South America, and several countries in Africa.

ENDNOTES

¹ Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, 1994 CanLII 102 (S.C.C.) The school board in granting three Jewish teachers leave of absence, but without pay, were found by an arbitration board to have discriminated against the teachers and to have not taken reasonable steps to accommodate these teachers, short of undue hardship. The case was upheld on appeal to the Supreme Court.

² British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3, (referred to as the Meiorin case). This case resulted in a unified test for determining whether or not the defence of bona fide occupational requirement applies.

³ British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, (referred to as the Grismer case). This case extended the application of the Meiorin test to the provision of services and claims of bona fide justification.

⁴ Canadian Human Rights Commission, A place for all: a guide to creating an inclusive workplace, January 2003, p.39 (available at http://www.chrc-ccdp.ca)

⁵ paragraph 68, Meiorin

⁶ paragraph 19, Grismer

⁷ For purposes of enforcement, it may be beneficial to have an additional clause requiring the retention of records for two or more years for such substitutions.

⁸ The British Columbia Employment Standards Act, s.48, allows for individual substitutions in its provisions, which is substantially captured in the second option for an amendment.