HomeMy WebLinkAboutUnion 90-01-21
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Concerning an arbitration
Between:
Regional Municipality of Halton
and
Ontario Public Service Employees Union
Union Grievance re rest periods during overtime shifts
Board of Arbitration
J. W. Samuels, Chainnan
G. F. Sparks, Employer Nominee
J. D. McManus, Union Nominee
For the Parties
Union
M. Bevan, Grievance Officer
G. Bruce, Staff Representative
Employer
L. Rafferty, Counsel
G. Hughes, Commissioner of Human Resources
C. Linton, Manager of Staff Relations
M. Gauthier, Director of Nursing
Hearing in Mississauga, December 13, 1989
1
The issue in this case is very simply put-under the collective
agreement, during an overtime shift, is an employee entitled to two or
three rest periods?
The bargaining unit consists of RNAs, Health Care Aids, and Ward
Attendants working at the Halton Centennial Manor, a home for the aged.
They work three shifts-days, 7 AM to 3PM; afternoons, 3PM to I1PM;
and nights, I1PM to 7 AM. During each shift, there are two different
working groups, with each group taking independent rest periods and lunch
breaks.
This case arises out of concerns relating to day shift employees who
are asked to work overtime through the afternoon shift.
During the regular afternoon shift, there is a 3D-minute rest period
from 4:00 PM to 4:30 PM, with one group of employees taking their rest
period from 4:00 to 4:15, and the other taking their rest from 4:15 to 4:30.
The employees take their one-half hour lunch breaks somewhere between
5:30 and 7:00. The second rest period is 8:30 to 9:00, with one group
taking their rest period from 8:30 to 8:45, and the other taking their rest
from 8:45 to 9:00. .
Employees working an overtime shift during the afternoon take the
same two rest periods and the lunch break as the staff on. the regular
afternoon shift, but the overtime employees always take their first rest
period from 4:00 to 4:15.
In addition, the overtime employees had been in the habit of taking a
third rest break for the first fifteen minutes of the overtime shift. The
employer was apparently unaware of this practice and, when the employer
learned of it, told the employees that this third rest period could not be
taken. The Union filed the policy grievance before us.
The difference between the parties concerns Article 16.01(d) of the
collective agreement. It reads:
Paid rest periods of fifteen (15) minutes duration
will be provided for a full-time employee for
each half shift worked. There shall be a paid rest
period of fifteen (15) minutes after the
completion of the first hour of overtime after the
regular shift is worked provided overtime is
required beyond that first hour.
2
,The Union argues that the first sentence of this Article provides for
the regular two rest periods per shift. The second sentence provides for an
extra rest period during an overtime shift which runs longer than an hour.
While the collective agreement says that this third rest period should be
after the completion of the first hour of overtime, the employees have
taken it at the start of the overtime shift in order to accommodate the
employer.
The Employer argues that the whole Article deals solely with
scheduling-when rest periods are to be taken. It does not grant rest
periods. The second sentence says simply that the first rest period during
an overtime shift must be after the first hour, and this is what the
Employer does by giving the overtime employees their rest period at 4:00
to 4:15. This interpretation is supported by a Letter of Understanding
appended to the collective agreement, and forming part of it, which
includes, among other agreed shift issues "all shifts shall contain a 1/2 hour
paid meal period and two 1/4 hour paid rest periods". It is suggested that,
if the overtime employees had a rest period additional to the two regular
rest periods, this would be "pyramiding".
In our view, for several reasons, the Union's interpretation is
correct.
Firstly, the first sentence of Article 16.01(d) grants one rest period
per half shift. This sentence does not deal with scheduling. It does not say
3
when the rest periods are to take place. This provision gives the paid rest
periods.
Secondly, the second sentence grants a rest period during overtime
work, provided the overtime goes beyond one hour, no matter how long
the overtime is. This provision is not simply dealing with the scheduling of
one of the rest periods granted in the first sentence. The first sentence only
grants a rest period if the employee works a whole half shift. The second
sentence grants a rest period during overtime once the overtime runs past
one hour. According to the second sentence, an overtime employee can
have a rest period during overtime, even if the overtime does not last a
whole half shift. In our view, this is a rest period which is over and above
the two rest periods granted in the first sentence. It is a different rest
period with a different qualifier.
Thirdly, with respect to the language in the Letter of Understanding,
in our view it does not limit the rest periods to two per shift. Rather, it
says that there will be at least two rest periods per whole shift.
Fourthly, there is no problem of "pyramiding" here. "Pyramiding"
involves the receipt of more than one premium for the same hours of work
(for example, an overtime premium and a shift premium), or more than
one benefit at the same time (for example, vacation pay and paid
bereavement leave). In a number of cases, arbitrators have suggested that,
where the premium and benefit provisions of a collective agreement are
ambiguous, the agreement should be interpreted in a way which avoids
"pyramiding"-see Palmer, Collective Agreement Arbitration in Canada
(2nd Edition, 1983), at pages 128-9; and Brown and Beatty, Canadian
Labour Arbitration (3rd Edition, 1988), at topics 8:2140, 8:3140, 8:3250,
and 8:3330. Thus, for example, employees were not allowed to claim both
overtime and shift premiums in Associated Freezers of Canada Ltd. (1979),
23 LAC (2d) 40 (Burkett); nor was an employee allowed to claim both sick
pay and vacation pay, when the illness occurred during the vacation, in
4
B.C. Transit (1987), 30 LAC (3d) 208 (Bird). But, in our case, the
language is not ambiguous, so there is no need to resort to a canon of
construction such as the so-called presumption against "pyramiding". And
there is no "pyramiding" here in any event. The additional rest period is
not a "premium" (like a shift premium, or call-in premium, or seniority
premium, or overtime premium), and nor is it a "benefit" (like vacation
pay, or statutory holiday pay, or bereavement leave, or maternity leave, or
sick leave). .
For these reasons, we find that an employee working overtime is
entitled to a fifteen-minute rest period per half shift, pursuant to the first
sentence of Article 16.01(d); and, pursuant to the second sentence of
Article 16.01(d), an additional fifteen-minute rest period after completing
the first hour of overtime. This additional rest period must be taken
sometime after the first hour of overtime, but not necessarily immediately
thereafter.
5
The Union asked only for a declaration, so we will confine our
award to the above statement. We make no award concerning
compensation. .
Done at London, Ontario, this ;{flt. day of,:Ji....,
li10
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G. F. Sparks, Emþloyer Nominee
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J. D. McManus, Union Nominee
.
As stated in the majority award this issue at hand involves the
circumstances where an employee works a normal period from
7:00 a.m. to 3:00 p.m. and works an additional overtime period
from 3:00 p.m. to 11:00 p.m.
This has become known as a double shift with the employer
providing the same paid rest breaks and paid lunch as is provided
to the regular afternoon shift employees, although, I note that
Article l6.01(a) states in part:
"Each work day (my emphasis) shall include a paid lunch
period of thirty minutes."
The Union by way of this policy grievance seeks a declaration
that employees are entitled to an additional rest period.
In my mind this is a case where the rule against pyramiding of
benefits should apply.
The union seeks two benefits (in my view a rest break is a
benefit) for the same hours worked i.e., the second period of
work from 3:00 p.m. to 11:00 p.m.
In addition to the paid rest breaks that have been provided to
employees by treating the overtime period as a "shift", the Union
now seeks an additional paid break referring to the last sentence
of 16.0l(d). .
I believe the requirement of this last sentence is being met -
Employees are afforded a paid break at 4:00 p.m.
The rule against pyramiding of benefits is discussed in Palmer
Collective Aqreement Arbitration in Canada. Second Edition. In
this regard it is worth noting page 129:
"It would seem, then, that this rule is essentially a
presumption; but one that can be rebutted. Thus, clear
language in the collective agreement will rebut the rule
against pyramiding. In short, where a grievor seeks two
benefits for the same work, the onus is upon that person to
advance some valid reason why both should be paid."
In my opinion, the language of this Collective Agreement does not
rebut the rule against pyramiding of benefits and the Union has
not discharged the onus as to why both benefits should be paid.
In my view, the Employer is not in violation of the Collective
Agreement and I would have dismissed the grievance in question.
All of which is respectfully submitted.
G. F. Sparks