HomeMy WebLinkAbout1987-1292.Majury.88-11-17Between:
1292/87
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Terry A. Majury)
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Before: T.H. Wilson Vice Chairperson
J. Solberg Member
D. Montrose Member
For the.Grievor: C. Dassios
COlJ"Sel
Gowling & Henderson ./
Barristers and Solicitors
For the Employer: W. Emerson
Employee Relations Officer
Ministry of Community and Social Services
Hearing: February 12, 1988
Grievor
Employer
W88-67-06
DECISION
The grievor was injured while at work on January 23,
1987. As a result the grievor was off work and received Workers'
Compensation in accordance with Article 53.1 of the Collective
Agreement from January 23, 1987 to February 27, 1987 inclusive.
From February 11, 1987 to February 27, 1987, the grievor worked
half shifts and received Workers ' Compensation for the other half
of his shift. He was paid his shift premium under Article 11 of
the Collective Agreement for the half shifts he worked.
For the two years before the date of this grievance,
the grievor continuously worked the 5:OO p.m. to 1:30 a.m. shift
and was paid shift premium under Article 11 of the Collective
Agreement. While the grievor was on Workers' Compensation, the
employer paid him at straight time rate without shift premium.
It is this .absence of shift premium that the grievor grieves.
The relevant provision is Article 54.1:
ARTICLE 54
54.1 Where an employee is absent by
reason of an injury or an industrial disease
for which a claim is made under the Workers'
Compensation Act, his salary shall continue
to be paid for a period not exceeding thirty
(30) days. If an award is not made, any
-payments made under the foregoing provisions
in excess of that to which he is entitled
under sections 52.1 and 52.6 of Article 52
(Short Term Sickness Plan) shall be an amount
owing to the Employer.
The Union raised two arguments: (1) relying on the words "his
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salary shall continue to be paid" in section 54.1, it submitted
that the shift premium is a part of the grievor's "salary"; and
(2) Article 54.7 determines the right of the employee to his
regular salary. Article 19 determines the amount and it is to be
calculated on the basis of what he would have received had he
actually worked the days in question. This approach was argued
inter alia in O.P.S.E.U. (Campbell McDermid) and Ministry of
Correctional Services (G.S.B. File #366/83) and was based on an
approach adopted in the dissent by Board Member H.L. Robinson in
O.P.S.E.U. (Lyle John Martin) and Ministry of Correctional
Services (G.S.B. File #434/81). However, the Board in McDermid
allowed the grievance before it on grounds other than the theory
described above. To understand the union's argument before me it
is necessary to examine the McDermid case carefully.
In the McDermid case, the grievor was off work on
Workers' Compensation from the period March 14 to April 19, 1983
during which period there were two holidays which he had been
scheduled to work. The employer paid the grievor as if he had
taken~ the holidays which meant the grievor was not entitled to
compensating leave for the two days or to additional pay in lieu.
The issue involved an examination of Article 19:
ARTICLE 19
19.1 Where an employee works on a
holiday included under Article 47 (now
Article 481 (Holidays), he shall be paid at
the rate of two (2) times his basic hourly rate of two (2) times his basic hourly rate
for all hours worked with a minimum credit of
seven and one-quarter (7 l/4), eight (81, or
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the number of regularly scheduled hours, as
applicable.
19.2 In addition to the payment provided
by section 19.1 an employee shall receive
either seven and one-quarter (7 l/4) or eight
(8) hours, as applicable at his basic hourly
rate or compensating leave of seven and one-
quarter (7 l/4) or eight (8) hours as
applicable, provided the employee opts for
compensating leave prior to the holiday.
ARTICLE 47 [now 481
An employee shall be entitled to
the following holidays each year:
[list of days]
After analyzing the cases to date, Vice-Chairman
Springate stated that there were four possible approaches:
1. .Article 53.2 (now 54.2) creates an entitlement to payment for the two holidays
the grievor did not work, but reference must
be had to Article 19 to determine the amount
of payment. Because the grievor did not work
on the days in question, Article 19.1 had no
application. Article 19.2, however, applies
both to employees who work and those who do
not work a holiday, and accordingly is
applicable. Pursuant to Article 19.2, the
grievor is entitled to payment for both days
at straight time or time off. This approach
is consistent with the reasoning in the
Martin award.
2. Article 53.2 entitles the grievor
to his regular salary for the. two days in
question the amount of payment being deter-
mined by reference to Article ,19. However,
it is to be calculated on the basis of what
the grievor would have received had he
actually worked the day in question. Had he
worked the two holidays, he would have been
entitled to eight hours' pay at double time
under Article 19.1 as well as an additional
eight hours' pay under Article 19.2, or
compensating leave with pay. The approach of
Robinson in his dissent in the Martin case.
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3. Only Article 53.2 applies and the
employee isentitled to be paid for the
holiday in the same basis as if he had
actually taken the holiday in the day it
occurred. This was in line with member
Middleton's dissent in
Charbonneau and Ministry of
Services (G.S.B. File #544/81).
4. The grievor is entitled to his
regular salary under Article 53.2. He is
also entitled to eight hours pay or compen-
sating leave under Article 19.2. In that
Art. 19.1 applies only to an employee who
works a holiday, it has no application. This
was the reasoning adopted by the majority in
Charbonneau.
Vice-Chairman Springate concluded that none of these
four positions was unreasonable given the lack of clarity in the
language. The same he wrote was true of the role of the anti-
pyramiding provision of Article 21:
There shall be no duplication or pyramiding
of any premium payments or compensating leave
provided by this Agreement.
In the interests of a uniform approach to the issue before it,
the Board decided to follow the reasoning of the majority in the
Charbonneau case. It left open the question of whether the
reasoning in Charbonneau applied to employees. off work due to a
non-compensable illness.
Counsel for the union submitted that there was an
important distinction between the situation in Charbonneau and
the present grievance, namely that a shift premium is a component
of the wage since the grievor regularly works a shift for which a
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premium is paid. In contrast, a lieu day such as was claimed in
Charbonneau and Mctlermid is more like a bonus and this may
explain why those Boards rejected the approach favoured.by Member
Robinson - that is that the employee should be paid exactly as he
would have been had he worked in fact on .the day(s) in question.
Finally, the union counsel drew the board's attention
to a decision of Arbitrator M.G. Picher in American Can of Canada
Ltd~. and International Association of Machinists and Aerospace
Workers, Local Lodge 1909 (1980), 26 L.A.C. (2d) 189 but I find
it of little assistance in determining the question before us
especially in light of the numerous Grievance Settlement Board
decisions in the area. In summing up the union counsel submitted
that the source to be looked at is Article 54 itself rather than
Article 11 (shift premium provision) and it means that the
injured employee continues to be paid as he was on the day of
injury which in this case includes the shift premium. Alterna-
tively, Article 54 means the employee continues to be paid as if
he had worked which in this case means worked on a shift paying a
premium.
Article 11 provides:
11.1.1 Effective March 1'6; 1987, an
employee shall receive a shift premium of
forty-five cents (45 c ) per hour for all
hours worked between 5:00 p.m. and midnight.
Where more than fifty percent (50%) of the
hours worked fall within this period, the
forty-five cents (45c ) per hour premium
shall be paid for all hours worked.
11.1.2 [midnight to 7:00 a.m. rate]
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11.2 [7:00 a.m. to 5:OO p.m. rate]
11.3 Shift premiums shall not be
considered as part of an employee's basic
hourly rate.
The Ministry counsel argued that Article 11.1 is
similar in function to Article 19.1 which this Board has inter-
preted as requiring the actual performance of the work to
qualify. In this regard, he relied on Cooper and the Ministry of
Community and Social Services (G.S.B. File #145/77). In that
case, the grievor reported to work on a statutory holiday but
part way into the day became ill and on medical advice ceased to
work for the balance of the day having put in only 2 3/4 hours of
work. Vice-Chairman Swan held that he was entitled to 1 l/2
times pay for the 2 3/4 hours he actua.lly worked, but~only
straight time (holiday pay) for the balance of the shift during
which he was unable to work. The guarantee in Section 19.1 is
subject to the employee's continuing availability for work.
Article 51.1 was apparently not raised in argument in that case.
The Ministry urged the Board to interpret Article 11.1 on the
same principles as 19.1 in Cooper. There were no Board decisions
directly on that point presented to this panel.
The employer did cite a number-of decisions interpret-
ing the word, salary: in O.P.S.E.U. (Union Grievance and The
Ministry of Community and Social Services (G.S.B. File #1383/85),
in interpreting the words "salary maximum of the vacancy" in
Article 24.2.1, Vice-Chairman Verity decided that the words there
bore their ordinary meaning of salary as a fixed payment made by
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the employer at regular intervals - be they weekly, monthly,~
quarterly or annually. Basic hourly rate is a component of
salary as are hours of work which combine to establish a salary
over a regular pay period.
In a somewhat similar case Lee and the Ministry of
Health (G.S.B. File #103/85), the Board had to interpret section
5.5.1 (now 5.4.1). Here also it interpreted salary as meaning
fixed payment made by an employer at regular intervals and as
such different from the hourly rate. The same approach was
followed in Haley and Ministry of Correctional Services (G.S.B.
File #438/85). Applying that reasoning to the current issue, the
employer argues that "salary" in section 54.1 means a fixed
payment at regular intervals and does not therefore include the
shift premium which depends on the ac~tual hours (or shifts)
worked. Furthermore, the shifts worked are within the manage-
ment's discretion under section 18 of the Crown Employees
Bargaining Act.
The employer urged a purposeful interpretation on the
Board arguing that the function of an overtime premium is to
discourage overtime. In fact of course, Article 11.1 is a "shift
premium", not an overtime premium. The-overtime rate is set by '
Article 13. In my view, the function of the shift premium is to
compensate the employee for the inconvenience of the hours
worked. Be that as it may, the principal issue is whether the
words themselves lead to a specific conclusion. The employer's
counsel referred the board to a list of provisions in the
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Collective Agreement using various expressions among others
ranging from "salary" (Section 4.2), "no loss of pay" (Section
28.1) "gross salary" (Section 42.2.1) to "actual weekly rate of
pay" (Section 50.3.2.). Candidly he stated it would be an
exercise in semantics to try to piece them together. It is no
doubt clear that the Collective Agreement is not a seamless robe.
However, it is our duty to find as much consistency as is
possible while trying to identify the purpose or intent of -the
parties. Clearly there are parallels between Article 52 and
Article 54. The parallels between Articles 11 and 19 are also
noticeable. If we applied the reasoning in Charbonneau and
Cooper to this case, clearly the shift premium would not be
included inasmuch as Section 11.1 like 19.1 requires that the
hours must have actually been worked.
The union contended that the purpose of Article 54 is
to maintain the de facto income of the injured employee. I .do --
not see the interrelationship of Article 54 and Article 11 as
doing that. Article 54 maintains the salary which the job itself
pays.- Under Article 11.1 the employee is paid a "premium" when
he actually works during the hours specified therein. That is
completely parallel to Article 19.1. In $y view the reasoning in
Charbonneau is correct and applies equally here. Furthermore,
the cases actually cited by the employer defining salary and
discussed above are I believe consistent with that approach. The
basic hourly rate is one of the components of salary and it --
according to Section 11.3 does not include the shift premium.
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That the parties sought to maintain the basi c salary of the
employee appears to be the intention as refle cted by both the
language and structure of the relevant provisions and as appears
from the reasoning in the Board decisions. The grievance is
dismissed.
DATED AT TORONTO, Ontario this 17th day of November, 1988. I
I Dissent (Dv~ttach~.d J. SOLBERG, Member
D. MONTROSB, member
DISSENT
I disagree with this award on two accounts.
Number one. This Board was asked to interpret
article 54.1. That seems to me most easily done by looking at'
the purpose of the article. And the purpose of the article is
quita clear; It is an income maintenance clause designed to
protect the current income level of an employee who is injured on
the job.
If that is the starting point of the Board's
deliberations (as I think it ought to be), then the Board has
only to decide whether there is anything in the cdllective
agreement which conflicts with the explicit purpose‘of the clause
in question.
There is certainly no such conflict in any initial
interpretation of the two clauses. Article 54.1 speaks about
continuing the salary of an employee on workers' compensation.
It is clear from the collective agreement that the parties have
agreed- a shift premium,can not be a component of the hourly rate
nor. of the weekly rate (for example; as used in the paid
maternity clause). But, there is no such exclusion or suggestion
of exclusion, with respect to salary. And I submit that
distinction ought not to be ignored.
The Board has then had to turn to the purpose.of
the shift premium clause to find a conflict with article 54.1.
The Board argues that since the purpose of a shift premium is to
compensate an employee for the inconvenience of working non-
regular hours, such a premium ought not to be paid when an
employee is off work because of a compensable injury. That
reasoning leads into the second point.
Number two. The Board accepts a lack of
consistency in the use of the word salary in the collective
agreement. Surely the Board ought then t'o engage in a balancing
of interests. In my opinion, such a balancing could reasonably
lead to a conclusion that an employee ought not to receive a
decrease in his livelihood because he has been injured on the
job. Surely, that's not only a reasonable conclusion but the
reasonable expectation raised in the clause itself when it speaks
to the continuance of an employee's salary.
On both these grounds, that is a purposive meaning
of the clause in dispute before the Board and a reasonable
balancing of the interests of the parties, I would have allowed
the grievance.
J. Solberg