HomeMy WebLinkAboutUnion 14-08-29IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN MENTAL HEALTH ASSOCIATION, THUNDER BAY BRANCH
(“Employer”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, Local 720
(“Union”)
(Public Holiday Pay - #2013-0720-0021)
ARBITRATOR: Jasbir Parmar
On Behalf of the Employer:
Yves Fricot, Counsel
On Behalf of the Union:
Yuk-Sem Won, Grievance Officer
This matter was heard on June 24, 2014, in Thunder Bay, ON.
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I. INTRODUCTION
1. The Union filed a policy grievance, dated October 8, 2013, alleging the Employer
violated the collective agreement by not allowing employees a day off in respect of a public
holiday. The Employer asserts that paying these particular employees public holiday pay
instead is consistent with the collective agreement and the Employment Standards Act.
II. RELEVANT FACTS
2. The parties proceeded by way of agreed facts. For brevity, I will set out only the
material facts.
3. The Employer provides a number of different mental health services, with approximately
53 employees. One of the services is the Crisis Response Service (“CRS”), which operates
24 hours/7 days. There are 22 employees who staff the CRS. Of these, 11 are full-time, 5
are part-time, and the remaining are casual employees. The grievance relates only to the
CRS staff. It was filed under the first collective agreement between the parties.
4. The schedule for the CRS employees (except the casuals) is a rotating shift schedule
which is normally set 6 months in advance. For full-time staff, the schedule “repeats” every
22 weeks, covering 154 days. For part-time staff, the schedule repeats every 10 weeks.
Casual employees are available and scheduled to work at various times on all 7 days of the
week on an “as needed” basis. All full-time and part-time staff will, during the course of the
schedule, be scheduled to work all 7 days of the week, and the rotation through the various
shifts on the schedule is equally shared by all employees.
5. The grievance relates to the Thanksgiving Day holiday on Monday, October 14, 2013.
Only 6 of the full-time staff and 1 of the part-time staff were scheduled to work on this
particular holiday.
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6. At issue is the treatment of those CRS employees who did not work on that holiday.
They were paid Public Holiday pay for the Public Holiday (calculated in accordance with the
ESA). They were not given an alternate day off, and their consent to receive Public Holiday
pay was not sought.
7. Article 13.03 of the collective agreement provides:
The qualifications for Public Holidays and the amount of Public Holiday pay
shall be as provided for in the Employment Standards Act, 2000.
If a Public Holiday falls on a day that would not ordinarily be a working day for
an employee or a day on which the employee is on vacation, the employee
shall receive another day off with pay.
8. The parties agree that the wording of Article 13.03 which is in issue was intended to
mirror the language in the ESA.
9. Negotiations for the collective agreement took place between January 11, 2013 and
March 21, 2013. In their first exchange of proposals on January 11, 2013, the following
language in relation to the issue at hand was proposed by each of the parties:
By OPSEU:
21.01 Paid Holidays
The paid holidays recognized by the Employer will be as follows:
[holidays listed]
…
If any of the above holidays fall or are observed during an employee’s
vacation or on a scheduled day off, the employee shall receive another day
off with pay.
By CMHA:
13.03 The qualifications for Public Holidays and amount of Public Holiday
pay shall be as provided for in the Employment Standards Act, 2000.
10. These proposals were not discussed, addressed, or amended. They remained
unchanged and outstanding until February 28, 2013. At that time, the Employer provided the
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Union by email a written response to the outstanding language issues. With respect to
Article 13.03, the Employer proposed the following language:
CMHA proposes additional language in bold below
13.03 The qualifications for Public Holidays and amount of Public Holiday
pay shall be as provided for in the Employment Standards Act, 2000. [Agreed
Feb 13 9 pm]
If a Public Holiday falls on a day that would not ordinarily be a working day for
an employee or a day on which the employee is on vacation, the employee
shall receive another day off with pay.
11. On March 14, 2013, via email, the Union withdrew its proposed language and agreed to
the Employer’s last proposal about this provision.
III. EMPLOYMENT STANDARDS ACT PROVISIONS
12. The following ESA provisions are relevant:
26 (1) If a public holiday falls on a day that would ordinarily be a
working day for an employee and the employee is not on vacation that day,
the employer shall give the employee the day off work and pay him or her
public holiday pay for that day.
(2) The employee has no entitlement under subsection (1) if he
or she fails, without reasonable cause, to work all of his or her last regularly
scheduled day of work before the public holiday or all of his or her first
regularly scheduled day of work after the public holiday.
27 (1) An employee and employer may agree that the employee will
work on a public holiday that would ordinarily be a working day for that
employee, and if they do, section 26 does not apply to the employee.
(2) Subject to sections (3) and (4), if an employer and an
employee make an agreement under subsection (1),
(a) the employer shall pay to the employee wages at his or her
regular rate for the hours worked on the public holiday and substitute another
day that would ordinarily be a working day for the employee to take off work
and for which he or she shall be paid public holiday pay as if the substitute
day were a public holiday; or
(b) if the employee and employer agree, the employer shall pay
to the employee public holiday pay for the day plus premium pay for each
hour worked on that day.
…
28 (1) If an employee is employed in a hospital, a continuous
operation, or a hotel, motel, tourist resort, restaurant or tavern, the employer
may require the employee to work on a public holiday that is ordinarily a
working day for the employee and that is not a day on which the employee is
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on vacation, and if the employer does so, sections 26 and 27 do not apply to
the employee.
(2) Subject to subsections (3) and (4), if an employer requires an
employee to work on a public holiday under subsection (1), the employer
shall,
(a) pay to the employee wages at his or her regular rate for the
hours worked on the public holiday and substitute another day that would
ordinarily be a working day for the employee to take off work and for which he
or she shall be paid public holiday pay as if the substitute day were a public
holiday; or
(b) pay to the employee public holiday pay for the day plus
premium pay for each hour worked on that day.
…
29 (1) If a public holiday falls on a day that would not ordinarily be a
working day for an employee or a day on which the employee is on vacation,
the employer shall substitute another day that would ordinarily be a working
day for the employee to take off work and for which he or she shall be paid
public holiday pay as if the substitute day were a public holiday.
…
(3) An employer and an employee may agree that, instead of
complying with the subsection (1), the employer shall pay the employee public
holiday pay for the public holiday, and if they do subsection (1) does not apply
to the employee.
IV. SUMMARY OF THE PARTIES’ POSITIONS
13. The Union, noting that the collective agreement was intended to mirror the ESA,
focused its submissions on the ESA. The Union submits that employees either have working
days or non-working days. Section 29 applies to non-working days. The Union states that
from the schedule, which repeats either every 22 weeks or every 10 weeks, it is clear in
advance which day is a working day for an employee and which day is not working day. The
Union submits that the day in question was not ordinarily a working day for the CRS for the
employees who did not work on that day. As such, section 29 should apply to them, and
they are entitled to receive a substitute day off work.
14. The Union submits that when the ESA is read as a whole, it is clear that the intent of the
ESA was to provide employees with time off work. It is only permissible to provide Public
Holiday pay without any time off if the employee agrees. The Union notes that in this case
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the employees consent to receive Public Holiday pay was never sought. The Union submits
that the Employer unilaterally determined to pay Public Holiday pay instead of a day off, and
under section 29(3) that is unacceptable.
15. The Union submits that the Employer’s interpretation, which would characterize every
day as a working day for employees of CRS, is absurd. The Union notes that section 18(4)
of the ESA provides for a period of time free from performing work. The Union submits this
indicates employees must have some non-working days. The Union submits that the focus
must be on the schedule of the particular employee, and not the fact that the employer is
operating each day.
16. The Union submits that the same result should be reached under Article 13.03 as under
the ESA. Alternately, if the collective agreement is interpreted in a manner that reaches a
different conclusion, the Union submits it should be set aside as being inconsistent and
providing a lesser benefit that provided for in the ESA.
17. The Employer submits that the Union’s error is concluding days are work days or not
work days on the basis of whether the employee is scheduled to be worked. However, the
ESA and collective agreement focus on whether a day would “not ordinarily be a working
day”. “Ordinarily”, the Employer notes, means normal, usual, or in the regular course. The
Employer submits that a determination as to what “ordinarily” would be a working day
requires a consideration of events, or occurrences, over a period of time. The Employer
submits that this requires both a qualitative and quantitative approach. In terms of the
character of the occurrence, the Employer notes that on each of those days, the employee is
performing their core duties, so that this is an ordinary event for them. In terms of quantity, if
an employee spends a significant period of time working on a variety of days, then all those
days are ordinarily working days. That is the case for these employees, the Employer
submits, because they work all days of the week.
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18. As Mondays are working days for the CRS employees, the Employer submits, the day
in question was ordinarily a working day for the CRS employees. They fall theref ore, the
Employer submits, within the scope of section 26, and not section 29/Article 13.03. The
Employer notes the employees were not required to work, which means they were given the
day off work, and they were given Public Holiday pay. As such, the Employer submits, both
the ESA and collective agreement requirements were met.
19. The Employer also submits that the Union’s interpretation is not supported by the
extrinsic evidence of negotiating history. The Employer submits that the interpretation put
forth by the Union is actually what the result would be if the Union’s original bargaining
proposal about Article 13.03 had been accepted. The Employer notes that the Union
attempted to negotiate that the employees would receive a substitute day if the holiday fell on
“a scheduled day off”. The Employer notes that that proposal was not ultimately accepted,
but rather different language was negotiated. The Employer submits that this indicates that
the parties never agreed that an employee would have another day off simply because they
were scheduled off on the day of the Public Holiday.
20. In reply, the Union did not challenge most of the Employer’s submissions. However, the
Union noted that the Employer’s basic premise that the day in question was defined by the
five day work week was flawed. The Union submitted that the analysis of what is “ordinarily”
a work day must be done in light of the specific facts of these specific employees, and in this
case the schedule repeats every 22 weeks or 10 weeks. An analysis of whether the
particular day of the Public Holiday was a work day must be done by examining the schedule
as a whole, and not just a week. When that is done, only then can it be determined whether
a particular day (on which the Public Holiday falls) in the 154 day schedule is ordinarily a
work day or not ordinarily a work day.
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21. The Union relied on the following authorities: Ontario Ministry of Labour: The
Employment Standards Guide (Thomson Carswell); Your Guide to the Employment
Standards Act, 2000 (Ministry of Labour); Brown & Beatty, Canadian Labour Arbitration, 4th
ed. (Canada Law book, 2013), paragraph 4:2110; Décor Entry Systems and I.A.M. (2000),
92 L.A.C. (4th) 53; Sensient Flavors Canada Inc. and United Steelworkers, Local 3950
(2011), 205 L.A.C. (4th) 2011; Marycrest Home for the Aged and CUPE, Local 2280
(unreported, June 26, 2012) (Herlich); and Sealed Power Corp. of Canada – and – U.A.W.,
Local 569 (1971), 22 L.A.C. 371.
22. The Employer relied on the following authorities: Labour Relations Act, 1995; United
Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd.
[1993] S.C.J. No. 56 (SCC); Noranda metal Industries Ltd. Fergus Division and I.B.E.W.,
Local 2345 [1983], 44 O.R. (2d) 529 (Ont. C.A.); Leitch gold Mines Ltd. V. Texas Gulf
Sulpher Co. [1969] 1 O.R. 469; Victoria Times Colonist v. Victoria-Vancouver Island
Newspaper Guild Local 30223, [2010] B.C.C.A.A.A. No. 182; Hamilton Health Sciences
Corp. v. ONA, [2009] O.L.A.A. No. 303; Brown & Beatty, Canadian Labour Arbitration, 4th
ed. (Canada Law book, 2013); Black’s Law Dictionary, 10th ed. (Thomson Reuters);
Canadian Oxford Dictionary, ed. Ed (Oxford University Press); Simcoe (County) v. OPSEU,
Local 303, [2010] O.L.A.A. No. 271; B.C.A.A. and Office and Professional Employees’
International Union, Local No. 378, [1999] B.C.L.R.B.D. No. 277; Copyright Act, subsection
83(8), [1999] C.B.D. No. 8 (Canada Copyright Board); Copyright Act, subsection 83(8),
[2003] C.B.D. No. 8 (Copyright Board Canada); Schevchuk v. Motor Vehicle Accident Claims
Fund, [2009] O.F.S.C. D. No. 30 (ON FSC); Verrier v. M.N.R., [1988] F.C. J. No. 839 (FC);
Peterborough Regional Health Centre v. Ontario Nurses’ Associaton, [2012] O.L.A.A. No.
548; and Employment Practices Branch, Ontario Ministry of Labour, Employment Standards
Act, 2000 Policy and Interpretation Manual (Carswell).
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V. ANALYSIS
23. At issue is whether the day of the Thanksgiving Holiday fell “on a day that would not
ordinarily be a working day” for the CRS employees who did not work on that day.
24. The parties are generally in agreement on the appropriate principles to apply. They
agree that Article 13.03 was intended to mirror the ESA, which uses the same language.
They agree that the plain meaning of this provision should govern. They also agree that in
determining whether the day in question was “ordinarily” a working day, the specific
circumstances of the specific employee should be considered.
25. Where they differ is the result of applying these principles to the employees at issue.
The complicating factor about these employees is the fact they do not work the same
days/shifts every week.
26. Both parties indicated they were not aware of any decisions on this issue. However,
this issue is addressed in the Employment Standards Act Policy and Interpretation Manual.
This manual is referenced in Your Guide to the Employment Standards Act, 2000, which is a
document created by the Ministry of Labour, as a source of “more detailed information about
the application of the ESA”.
27. In reference to section 29(1) of the ESA, the Manual notes that it is not always readily
apparent which days are “ordinarily” working days for a given employee. As an example, it
notes the question has arisen in the restaurant industry in the context of part-time employees
who have irregular shifts. The Manual states to make this determination it is Program policy
to look at the days the employee tells the employer that he or she is available and the past
scheduling practice. If the employee has indicated availability Monday to Friday, and the
employee is scheduled to work each of those days (though not on any regular basis), the
Program would consider each of those days to ordinarily be working days. If the employee,
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however, was only ever scheduled to work Tuesdays and Thursdays, only those days would
ordinarily be working days.
28. The broad contextual approach of looking at past scheduling practice is consistent with
the contextual approach of other adjudicators in making a determination about what is
“ordinarily” the case. For example in B.C.A.A. – and – Office and Professional Employees’
International Union, Local No. 378, supra, the B.C. Labour Relations Board was asked to
reconsider an earlier decision where the issue was whether certain employees “ordinarily
work[ed] at another of the employer’s place of operations”. The Board adopted the analysis
of the original panel, which determined that the appropriate approach was one that
considered a significant period of time to see where the individuals actually spent their time.
29. Similarly, in Schevchuk v. Motor Vehicle Accident Claims Fund, supra, the issue was
whether the applicant was “ordinarily resident” in Ontario. The arbitrator noted that this
determination required all the relevant factors to be taken into consideration.
30. I note that the focus in the present case is the “day” the Public Holiday falls on.
However, both sections 26 and 29 of the ESA (and the collective agreement) also make
reference to whether it is “a day on which the employee is on vacation”. From this, I
conclude that what is required is not just an examination of the day of the week the Public
Holiday falls on, but the specific day. After all, employees are on vacation only on specific
days, and not a day of the week. In the instant case, the Thanksgiving Day holiday at issue
did not just fall on a Monday; it fell on a specific Monday – October 14, 2013. So the
question is whether October 14 was a day that was ordinarily a working day or not a working
day for the particular employee at issue.
31. To answer this question using the Monday to Friday week as a focal point for the
analysis, as suggested by the Employer, may make sense where employees are scheduled
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weekly. However to do so in this case ignores the specific context of this workplace and the
past scheduling practice in this workplace.
32. To determine whether a day is “ordinarily” a work day, regard must be had to all the
relevant factors. This includes not only the fact that these employees may be scheduled to
work on any of the seven days of the week, but also the fact that their scheduled shifts are a
repeating pattern over 22 weeks (for full-time) or 10 weeks (for part-time). While the
schedule is posted every month, it follows a repeating pattern over 154 days. The repeating
pattern provides an ability to predict and identify whether any given day is a work day or not
a work day. As such, an employee, and the Employer, is able to know whether it is a
working day or not a working day on a particular day, even if the schedule for that month has
not yet been posted.
33. In other words, these employees do not work irregular shifts, as in the example of the
restaurant industry in the Manual. They have a regular pattern; it just isn’t based on the five
day work week.
34. This approach is consistent with the example referenced in the Manual, which suggests
that consideration must be given not only to what days an employee is in fact scheduled, but
the days an employee may be scheduled. In the circumstances of this case, it is possible to
identify which days the full-time and part-time employees may be scheduled simply by
following the scheduling pattern. In this case, it would have been possible to know months
in advance that October 14 was not “ordinarily” a working day for the employees who would
normally not be scheduled to work on that specific day in accordance with the repeating
pattern.
35. I observe the situation is somewhat different for casual employees. They are available
and scheduled to work on all seven days of the week on an “as needed” basis. There
appears to be no pattern to their work schedule, and as such no predictability. They truly
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have an irregular work schedule covering 7 days a week. Following the example in the
Manual, October 14 would “ordinarily” be a working day for them, and so section 26(1) would
apply.
VI. DISPOSITION
36. The grievance is upheld in respect of full-time and part-time employees.
37. On agreement of the parties, this decision is to be effective for Public Holidays that
follow the date of this decision.
38. I remain seized with respect to any issues relating to implementation of my award.
Dated this 29th day of August, 2014.
___________________
JASBIR PARMAR