HomeMy WebLinkAboutUnion 04-11-14
IN THE MATTER OF AN ARBITRATION
BETWEEN
Canadian Blood Services
("the Employer")
-AND-
Ontario Public Service Employees Union
and its Locals 210 and 160
("the Union")
-'
CONCERNING UNION POLICY GRIEV ANCES REGARDING ST A TUTORY
HOLIDAY PAYMENT
Christopher Albertyn - Sole Arbitrator
APPEARANCES
For the union:
Mitch Bevan, Grievance Officer
For the company:
Frances G. Gallop, Counsel
Christopher P. Thompson, Counsel
Rob Burwash, Manager, Human Resources, Southern Ontario
Hearings held in HAMILTON on July 8, 2004.
Award issued on November 14,2004.
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AWARD
1.
The Employer and the Union (and its Locals 160, 210, 477 and 5103) are
parties to a collective agreement. This award concerns two grievances pursuant to
the agreement, one filed by Union Local 21 0 in Hamilton and one filed by Local 160
in London. The grievances concern the same issue: how the Employer pays
employees when they work a shift which falls partly on a statutory holiday and party
on a regular work day.
2.
The parties agree that if I uphold the grievances, I am to refer any remedy
back to them, subject to remaining seized.
3.
The grievances arise because the Employer changed its past practice. Prior to
October 5, 2002 any hour actually worked on a statutory holiday was paid at the
statutory holiday rate (time and a half). This meant, if one started work at 11 p.m. on
a statutory holiday and worked until 7 a.m. the next day, one would be paid the
statutory holiday rate only for the one hour which fell on the statutory holiday. One
would get regular pay (or straight time, as the collective agreement refers to it) for the
7 hours worked on the regular working day.
.
2
4.
The Employer's practice as of October 5, 2002 is to have the start time of the
shift detennine the character of that shift. So, if one's shift starts on a statutory
holiday, then all ofthe hours of the shift are paid at the statutory holiday rate. One's
starting at 11 p.m. on the statutory holiday means that, although one works only 1
hour on the statutory holiday, one will be paid for the full shift at the statutory
holiday rate. Correspondingly, if one's shift starts on a regular day, and it runs into
the statutory holiday, one will be paid at straight time. The hours worked on the
statutory holiday will not attract the statutory holiday rate.
5.
The Employer explained the impact of the change in a memorandum to
employees on September 20, 2002, as follows:
Employees must begin their shift on the statutory holiday to quality for statutory
holiday pay. In so doing, employees will receive statutory holiday pay for all hours
worked during the shift, regardless of whether the shift ends on a statutory holiday.
6.
The Union says this change of practice violates the collective agreement. It
says the Employer could make the change with the Union's agreement, but it cannot
implement it unilaterally, as it has done.
3
7.
The Employer says the change does not violate the collective agreement. It
explains that the change was occasioned by the introduction of a new payroll
computer system which operates across its offices nationally. The system is
configured to calculate the wage rate on the basis of when the shift starts. This is
easier, rather than having to pay different rates for the hours worked on a shift.
8.
The Employer points out that the overall impact of the change is insignificant.
What one loses on the shift which starts on a regular day, one gains on the shift
which starts on a statutory holiday. While some particular employees were slightly
disadvantaged, others benefited. Over the first year, following the introduction of the
new method of calculation, there was a net loss of 12 hours premimn pay across all of
the employees affected by the change. In another year, there might be a net gain.
9.
There are two relevant provisions in the collective agreement: one for full-
time employees, the other for part-time employees. The provisions read:
14.02 a) When a full-time or temporary full-time employee works on a
designated paid holiday she shall be credited with all hours worked on that
holiday and further shall receive a premium of one half (Yz) times her basic
. .
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hourly rate over and above the averaging period. In addition, the employee
shall receive a day off credited with 7Yz hours at straight time which day
shall be scheduled at a mutually convenient date between the employee and
her immediate supervisor. However, if such mutually convenient date
cannot be arranged to be scheduled within thirty (30) days when the holiday
was worked, the employee shall be paid 7Yz hours at straight time (in lieu of
the day off credited at 7Yz hours).
14.06 b) Part-time, temporary part-time and casual employees required to
work on a designated paid holiday shall be paid one and one-half(1 Yz) times
their straight time hourly rate for all hours worked on such designated paid
holiday, and the employee shall not receive a day off in lieu of the holiday
worked.
10.
The Union argues that the language of Article 14 is clear. The premium
payment is to full-timers for "all hours worked on that holiday" and to part-timers for
"all hours worked on such designated paid holiday". The Union suggests this
language cannot include the new arrangement because, under the new arrangement:
(a) the premium is paid for regular hours worked, and not for the hours worked on the
statutory holiday; and (b) the premium is not paid for statutory holiday hours worked
on a shift that starts on a regular day.
11.
The Union files a collective agreement between it and the Management Board
of Cabinet that contains a provision which, it says, permits the province to do what
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the Employer has done in this case. That language reads:
UN 4.1 A shift that does not commence and end on the same calendar day
shall be considered as falling wholly within the calendar day on which the
shift commences.
12.
The Union suggests that, with such a provision, the Employer could have
done what it has done. It says, though, in the absence of a provision like this, the
Employer must treat statutory holidays as it did previously.
13.
The Employer argues that the collective agreement gives it a discretion to
designate paid holidays, which entitles it to stipulate when the paid holiday will begin
and end, and how the premium rate will be paid. In support of this argument, the
Employer points out that the collective agreement does not provide for premium pay
for hours worked on statutory holidays. Articles 14.02 and 14.06 refer to a
"designated paid holiday", not a statutory holiday. The Employer suggests that a
designated paid holiday has to be designated by someone. It refers to Articles 14.01,
which, it says, gives it the discretion to make the designation. (Article 14 is headed
"Paid Holidays"). The Article reads:
. .
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14.01 a) In order to qualifY for payment on a designated paid holiday other
than the float, a full-time or temporary full-time employee must work her last
scheduled working day immediately prior to the paid holiday and her first
scheduled working day immediately following the paid holiday, unless the
employee's absence is due to vacation, sick leave, authorized leave of
absence with payor is scheduled off by the Employer. Notwithstanding the
provisions of Article 18 [which deal with Leave of Absence without Pay],
when an employee commences an approved leave of absence without pay,
she shall be paid for paid holiday(s) falling during the period of leave of
absence provided she has earned wages on at least twelve (12) days during
the four week period immediately preceding a designated paid holiday.
Employees who are not scheduled to work on a designated paid holiday shall
be credited with holiday pay 00.5 hours for the following paid holidays as
designated by the Employer:
New Year's Day
Good Friday
Easter Monday
Victoria Day
Canada Day
Civic Holiday
Labour Day
Thanksgiving Day
Remembrance Day
Christmas Day
Boxing Day
The day before Christmas Day or the day before New Year's Day.
7
When a paid holiday(s) specified in this Article falls on a Saturday and/or a
Sunday, then the Employer may designate the paid holiday(s) to be observed
on either the day(s) immediately preceding or the day(s) immediately
following the paid holiday(s).
14.
The Employer emphasizes the reference to the paid holidays "as designated
by the Employer", and the power of the Employer to designate the day which will
substitute if the paid holiday falls on a Saturday or a Sunday. The Employer says it
has the prerogative to designate the application of the agreed paid holidays. It can
designate the shift commencement date.
15.
The Union responds by suggesting a more limited interpretation of the phrase
"as designated by the Employer" in Article 14.01 a). The Union says the designation
is only with respect to "the day before Christmas Day" or "the day before New Year's
Day". This, in the Union's submission, is the extent of the Employer's discretion to
set the designated paid holidays. The Employer does not retain any residual
prerogative to set what when the paid holidays will commence.
16.
The Employer replies that, had the parties intended to limit the Employer's
authority to designate the paid holidays only to the day before Christmas Day and the
day before New Year's Day, then this discretion would have appeared just before the
. .
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reference to those two days. Instead the reference to the designating authority
qualifies all of the paid holidays. This, in the Employer's submission, suggests a
wider prerogative to determine how the paid holidays will be arranged.
17.
The Employer argues there are sound operational reasons for this prerogative.
It is the only agency in Canada which collects and distributes blood. It is responsible
for the national supply. It must therefore have flexibility in how it conducts its
operations. The Employer says that Article 4, the management's rights provision,
recognizes this. Although not specific to the issue, the Employer points to the
following entitlements given to it under Articles 4.01 and 4.02 of the collective
agreement: to maintain efficiency, to introduce new or improved methods, and to
determine the schedule of activities and the scheduling of clinics. It says these rights
give it flexibility, which impliedly includes the right to determine when a paid
holiday is going to be. This means it can change the way it designates paid holidays,
depending upon its operational needs.
18.
The Union responds, citing the qualification to the management's rights
clause in the collective agreement, that management's rights are to be exercised
subject to the terms ofthe collective agreement, including Articles 14.02 and 14.06.
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19.
The Employer refers to the Ministry of Labour's Employment Practices
Branch interpretation of the obligation to pay premium pay for work on statutory
holidays under the Employment Standards Act, 2000.
The Branch suggests
employers should do so in the manner the Employer now pays for the designated paid
holidays. The relevant portion ofthe Branch's Policy and Interpretation Manual at
14.1.7 (14-5) reads:
A day runs from 0001 hours to 2400 hours. Program policy is that where a shift-
spans two calendar days, the entire shift is, unless the employer has adopted a
different reasonable policy that it consistently applies, considered to have been
worked on the calendar day on which the shift begins. For example, if an 8-hour
shift commenced at 11 p.m. on the Thursday evening before Good Friday, the 7
hours worked on Good Friday will not be considered to have been hours worked on a
public holiday. Similarly, where an 8-hour shift commenced at 11 p.m. on the
evening of Good Friday, all 8 hours are considered to have been worked on the
public holiday, notwithstanding that 7 ofthem actually fell on the next calendar day.
20.
The Employer has an alternative argument, if it fails on the argument that it
has the prerogative to stipulate the designated paid holiday. It argues that Articles
14.02 and 14.06 do not require that designated holiday payment be made as the
Employer did prior to October 4, 2002. It contends that, having regard to the
. .
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language of Articles 14.02 and 14.06, the general arbitral jurisprudence supports the
interpretation that the payment of hours worked on a shift is detennined by when the
shift commences.
21.
The Employer refers to an extract from Brown & Beatty's Canadian: Labour
Arbitration, 3rd ed., Canada Law Book Inc., at §8:3130 on 8-52, under the heading
"Perfonning work on a statutory holiday", which reads:
An issue may also arise as to whether an employee whose shift begins on the evening
of the day before the holiday and ends on the morning ofthe holiday can be said to
have worked on the holiday, thereby entitling him to the premium rate for those hours
worked on the holiday. Although there is a clear difference of opinion on the point,
in the absence of clear language in the agreementto the contrary, most arbitrators, in
denying the claim for the premium rate, have concluded that the calendar day of an
employee's shift must be taken to be the day on which the shift actually commenced.
22.
The Employer says that there is no clear language which would defeat this
conclusion. It says that Articles 14.02 and 14.06 do not require payment in the
manner advanced by the Union, and as was done previously. Those Articles leave
the matter open, which suggests that the preferred conclusion is what most arbitrators
have declared.
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23.
The Employer refers also to Sack & Poskanzer's Contract Clauses (Collective
Agreement Language in Canada), 3rd. ed., Lancaster House, at 17-9, which says
something very similar:
Where an employee's shift begins on the evening of the day before the holiday and
ends on the morning of the holiday, can the employee be said to have worked on the
holiday so as to warrant the premium rate for those hours worked on the holiday?
Although there is a division of opinion on the point, in the absence of clear language
in the agreement to the contrary, a number of arbitrators have held that an employee's
shift must be taken to have fallen on the day on which the shift actually commenced,
with the result that an employee who begins his or her shift on the day before the
holiday is not entitled to the holiday pay premium: St. Joseph's Hospital (1972), 24
LA.C. 91 (Brown); Milk & Bread Drivers v. Beckers Milk Co. Ltd. (1985), CC
November 1985/1 (Wilson).
24.
The Employer refers to Gates Canada Inc. v. United Steelworkers of America,
Local 733 (Holiday Pay Grievance), [1998] a.LA.A. No. 395 (Springate). The
language of the collective agreement in that case required that employees who
worked on a holiday be paid "double [their] rate for the hours actually worked plus
holiday pay. . ." This language, in the Employer's submission, expresses a closer link
between the actual hours worked and the premium rate of pay than obtains in this
case, yet the arbitrator found that the "reference to hours actually worked can
reasonably relate to the number of hours worked rather than the calendar day they
. .
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were worked" (~31). Consequently the arbitrator found that, "absent clear language
to the contrary, the day of an employee's shift is generally taken to be the day the
shift commenced" (~34).
25.
In Lilydale Co-Operative Limited and UFC W, Loc. 321A, (unreported,
ALRB decision of March 14, 1995, Abells), the language being interpreted read, "any
employee required to work on any ... [statutory holiday] shall be paid at the regular
rate for the statutory holiday, and in addition receive two (2) times their regular rate
for all hours worked on such a day.." RefeITing to other provisions of the collective
agreement between the parties, the Board interpreted the term "day" to mean the day
on which a shift commences, not a calendar day.
26.
The Employer suggests that the parties have been careful, when they have
wanted to derIDe days and hours, to do so expressly. It refers to the following
provisions in the agreement, which, in its submission, show the detail with which the
parties have defined times of work, when they have wanted to:
1.12 "Work Week" commences at 0001 hours on Monday and ends at 2400
hours on Sunday.
13
12.03 (b) (i) A premium of$1.50 shall be paid to an employee in addition to
her applicable hourly rate of pay for each hour worked between 2400 hours
on Friday to 2400 hours Sunday when the Saturday is scheduled as part of
the employee's regular work week. These provisions shall only apply to
Telerecruiters when such employees work on clinics.
12.12 Evening Premium
Effective date of ratification, an evening premium of one dollar ($1.00) per
hour shall be paid to each employee, in addition to the applicable hourly rate,
for all hours worked between six (6) p.m. and six (6) a.moo This premium
shall only apply to Telerecruiters when assigned to clinics.
The Employer contrasts these provisions with the lack of such detail in Articles 14.02
and 14.06. The Employer suggests this shows the parties did not intend to attach
hours worked on designated paid holidays to particular calendar days, otherwise they
would have said so.
*****
27.
I start with the Employer's argument that, by having the power to designate
the paid holidays, it can effectively designate the shift, as being either a regular shift
or a paid holiday shift. In my view, the phrase "as designated by the Employer" in
Article 14.01 before the list of paid holidays qualifies only the day before Christmas
- . .
, "
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or the day before New Year, as the Union argues. The reason for this is that all of the
other paid holidays are agreed between the parties - they are "the following paid
holidays" listed in Article 14.01 a). The words, "as designated by the Employer",
apply only to the alternative of the day before Christmas or the day before New
Year's Day. This is the scope of the Employer's discretion. The discretion to
designate the paid holiday appears again in the next paragraph of Article 14.01 a).
The Employer may designate when the paid holiday will be, if it falls on a Saturday
or a Sunday. These limited powers to designate the paid holiday do not imply a
general prerogative to alter the application of the entitlement to premium pay for
work on a paid holiday.
28.
Article 14.01 is not determinative of the issue because it concerns the
circumstances in which an employee qualifies to receive holiday pay, when they do
not work on the holiday, rather than the payment for hours worked on the holiday.
29.
Consequently I am not persuaded by the Employer's primary argument that it
retains a residual prerogative to designate the paid holidays, beyond having the
limited powers to designate I have described. I turn now to the Employer's
alternative argument.
. " .
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30.
The method of payment for holiday work under the Employment Standards
Act, 2000 is not relevant to my consideration because there is no allegation that an
employment standard has not been met. The language of the collective agreement is
what governs.
31.
Each case must be considered on its own language. The language considered
in the cases referred to by the Employer is different from the language in this case. In
Gates Canada Inc., there was reference to the "hours actually worked", but no
reference specifically to the calendar day on which those hours were worked.
Similarly, in Lilydale Co-Operative Limited, the reference to the hours worked on
"such a day" did not expressly stipulate the hours were those worked on the holiday.
32.
The language of Articles 14.02 and 14.06 more explicitly links the hours
worked with the designated holiday. Article 14.02 says that when an employee
"works on a designated paid holiday she shall be credited with all hours worked on
that holiday". The first portion ofthis phrase is like the provisions in the two cases
the Employer referred to, the second portion it not. The second portion does not say,
"with all hours worked on that day" ,in which event, a similar conclusion could be
.
, .' .
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reached to that in the two cases referred to. The Article says, "with all hours worked
on that holiday" (my emphasis). The addition of this phrase makes clear, in my view,
the parties intended that premium pay would be paid for every hour worked on the
calendar day of the designated holiday. Article 14.06's provision is similar and, in
my view, has the same clear effect. It refers to "all hours worked on such designated
paid holiday". These are the hours worked on the calendar day of the designated paid
holiday.
33.
I find, therefore, that the Employer's application of the designated paid
holidays since October 5, 2002 violates Articles 14.02 a) and 14.06 b) of the
collective agreement, and I uphold the grievances.
34.
As the parties requested, the matter is referred back to them to address the
consequences of my upholding the grievances.' I remain seized should they be unable
to do so.
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Toronto
November 14,2004