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HomeMy WebLinkAboutNg 06-01-23IN THE MATTER OF AN ARBITRATION BETWEEN: Centennial College of Applied Arts and Technology, Employer, - and- Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Robert Gallivan, Employer nominee Edward Seymour, Union nominee APPEARANCES: For the Union: Robin Gordon, Grievance Officer Larry Goldin, Local 559 For the Employer: Timothy P. Liznick, Counsel Elisha Jamieson, Student-at-law Nancy Fisher, Manager, LaboudManagement Relations Renate Donovan, Co-ordinator, Client Support Centre Heard in Toronto, Ontario, on January 17, 2006, ARBITRAL AWARD The grievances of Pio Sebastiampilai, Anton Ng and Sanjay Dholakia allege that the ' employer has violated Article 7.5 of the collective agreement by not paying them shift premium to which they are entitled. There is no dispute about the facts, and the three grievances raise precisely the same issue. Article 7.5 reads as follows: Shift Premium The College shall pay a shift premium of sixty (60) cents per hour for all regular hours worked between 5 p.m. and midnight and seventy-five (75) cents per hour for all regular hours worked between midnight and 6 a.m. Where more than fifty per cent (50%) of the hours worked on any regular shift fall within a period attracting the higher premium, the higher premium shall be paid for all regular hours worked. The grievors' shifts are from 3:15 p.m. to 11:15 p.m. They have received shift premium, at .60 cents per hour, for their work after 5:00 p.m. They claim they are also entitled to shift premium from the start of their shifts until 5:00 p.m. The union's argument in support of the grievances is based on the second sentence of Arti- cle 7.5. The union says that, pursuant to the second sentence, employees are entitled to a premium for all -3- hours worked if more than half of the shift is within the period that attracts a premium. The union maintains that the principle found in the second sentence is that where a shift, in its essential character, is one that gives employees the right to a premium, the premium is payable for all hours on the shift. This would be consistent with the purpose of a shift premium, which is to compensate employees for working "unsocial" hours and for having their normal sleep patterns disrupted. The start of the grievors' shifts, according to the union, was in a period that attracted "no premium", but as of 5:00 p.m. they attracted a premium of 60 cents per hour. Since 60 cents per hour is a "higher premium" than "no premium", the higher premium, according to the language of the second sentence of Article 7.5, was due for the whole of the shift. The union referred to the award in Re AIc~onquin College and Ontario Public Service Employees Union (unreported award of arbitrator Devlin, dated October 11, 1991), where the arbitrator stated, in relation to the same contract provision in a predecessor collective agreement, that a shift premium was payable for all hours on a shift that ran from 1:30 p.m. to 9:30 p.m. The employer maintained that the arbitration board had to give effect to the plain meaning of Article 7.5. There was no ambiguity or room for doubt. It was obvious that the second sentence of Article 7.5 only applied if a premium of 75 cents per hour was payable for more than 50% of the hours worked. A premium of 75 cents per hour was "the higher premium" referred to in the second sentence. There was no other possible interpretation of the words used. Moreover, Article 7.5, interpreted in this way, made perfectly good sense, since the hours worked before 5:00 p.m. were "social" hours, ~or which shift premium could not 'be j~stified. The employer referred to Re Greyhound Lines of Canada Ltd. and Amalqamated Transit Union, Division No. 1374 (1974), 5 L.A.C. (2d) 1 (Forsyth), Otis Elevator Co. Ltd. (decision of the Ontario Labour Relations Board dated February 2, 1993, file 3500-91-G), and Re Weyerhauser Chapleau and I.W.^.- Canada, Local 2995 (2001), 98 L.A.C. (4th) 150 (Tacon), as well as to dictionary definitions of the words "premium" and "the". -4- In our view, the language of Article 7.5 cannot bear the meaning put forward by the union. We agree with the employer that, according to the plain, grammatical meaning of the provision, the words "the higher premium" found in the second sentence can only possibly refer to the 75 cents per hour premium provided for in the first sentence. As a result, the second sentence has no application to the shifts worked by the grievors. It can only apply in a situation where part of the shift worked is before midnight and part is after midnight. In response to the submissions made by the union, we should state that we are satisfied that the 60 cents per hour premium received by the grievors for their work between 5:00 p.m. and the end of their shift cannot be "the higher premium" referred to in the second sentence so as to trigger the application of that sentence. Put simply, a premium of 60 cents per hour is not higher than any other premium. While it is more than "no premium" (which is what employees receive for the period before 5:00 p.m.), "no premium" is the absence of a premium. The expression "higher premium" is not an appropriate one to describe the relationship that the .60 cents per hour premium bears to the "no premium". Moreover, we agree with the employer that the use of the definite article -"the" - before the words "higher premium" is designed to refer back to the higher of the two premiums defined in the first sentence. The union has relied on a statement made by the board of arbitration in Re Alqonquin College, which suggests that employees working from 1:30 p.m. to 9:30 p.m. are entitled to shift premium 'for all hours worked on the shift. The issue in that case, however, was whether an employee who occasion- ally worked an overtime shift could be considered as working "a regular shift" within the meaning of Article 7.5 (as it read at the time). The statement relied on by the union was not necessary for the decision, and we can attach no significance to it. · -5- Given the clarity of the language used in Article 7.5, it is not necessary for us to express any views about the reasonableness of our conclusion. When the language of a clause is clear and admits of only one possible interpretation, an arbitration board has to give effect to that language, except if the result would be an absurdity. However, we should state that we find nothing strange or unreasonable in the conclusion that employees are not paid shift premium for working hours that so many other employees of the employer normally work, i.e. between 3:15 and 5:00 p.m. For these reasons, the grievances are hereby dismissed. DATED at Thornhill, Ontario, this 23rd day of January 2006. ! % Michael Bendel, Chair I concur/I dissent Robert Gallivan, Employer Nominee I concur/I dissent , Edward Seymour Union Nominee