HomeMy WebLinkAbout1993-1696.Robinson.95-06-20
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-' ONTARIO EMPLOYES DE lA COURONNE
CROWN EMPLOYEES DE L'ONTARIO rfl.
1111 GRIEVANCE COMMISSION DE ~ l>'
"N<J,,~ ~\3.
SETTLEMENT REGLEMENT ~#&
BOARD DES GRIEFS
180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON M5G 118 TELEPHONE/TELEPHONE (416)-326-1388
180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396
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GSB # 16~6/93
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R E~q.i ifi.",.,!: [j '@j . ;;.~.j $f.. . \ OLBEU # OLB193/93
JUN 2 11995 \ .
~ THE MATTER OF AN ARBITRATION
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PUBLiC SEHV\CE Under
APPEAL BO~~owtt EMPLOYEES COLLECTIVE BARGAINING 1 ACT
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Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OLBEU (Robinson)
i Grievor
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The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
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BEFORE: N Dissanayake Vice-Chairperson
P. Klym. Member
F Collict Member
FOR THE R. Davis \
GRIEVOR Counsel
Koskie & Minsky
I Barristers & Solicitors
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FOR THE R Little
EMPLOYER Counsel
Hicks, Morley, Hamilton, stewart & storie
Barristers & Solicitors
'HEARING March 17, 1995
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,DECISION
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Th1S 1.S a grl.evance-dated Sep}:emb~r 10; 1993 f1.led by Mr.
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Al RObinson, a maintenan~e ~erviceman employed at the
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employer's Durham RegionalWar~hou,~~., <;illeging a violation of
~/ article 6~6(a) of the collective agreement.
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The relevant provis;i.ons are:
6.1 For the purpo~esof this Artic).~:
(a) Overtime means a pe~ipd of work computed ~,
to. the nearest fifteen (15) Minutes and,
(i) :performed on a regular: working day 'in
excess of the regular wQrkipg period
consisting of at least. fifteen' (15)
minutes, or,
(ii) performed on a holiday',~r. other day that
is not a-regular working~day but sh~ll
not occur where the work performed is due
to shift rotation.
tb) the starting ~;i.~e of the work week shall
be Mond~y ~2.0~ a..m..
6.2 (a) The employers .sha,ll prescribe the. number
of hours in e?lch working day not
exceeding eight (8) Aours for the various
departments or establishments of the
Employers.
Normal hours of work will be as tollows:
(ii) Warehouses:
_ 8:00 a m to 4:00 .p.m. -(day-shift)
- *No fifteen (15) minute rest p'eriods
during the afternoon .
**4:00 p.m. to~0:30 p.m. (night'shift)
**No fifteen (15) minute rest periods
6 4(a)
(i) Hours of work shall be posted at. least
two (2) weeks in advance for each
estab~ishment and there shall be no
change in the sqh~duleafter it has been
posted unless notice is given to the
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employee one (1) week in advance of the
starting time of the shift as originally
scheduled If the employee is not
notified one (1) week in advance he/she
shall be paid at the same hourly rate /
which would apply to overtime hours
worked on that day for all hours worked
outside his/her ~osted scheduled hours.
(ii) Hours of work may be changed without any
premium or penalty if 'agreed upon between
the employee and management.
(iii) Days off for store employees will be on a ~
rotational basis unless '. otherwise ~,
mutually agreed to in writing by the
employee '.and his/her superv.isor.
However, the Employer agrees to provide
for Eamployees who work in stores other
than those that observe a weekly closing
day, twelve (12) Saturdays off on a
rotational basis as part of their regular
days off each contract year. Days off
for employees working a day shift in
double shift stores will be on a
rotational basis, Monday through Friday,
_ unless otherWise mutually agreed to in
w~iti~g by the employee and his/her \
supervisor. Saturday will normally be
the day off for employees engaged on the
second shift., The provision whereby
twelve (12) Saturdays off on a rotational
basis each contract year will be
exclusive of vacation periods, paid
holidays and leaves-of-absence with pay
as defined in this Agreement.
(b) A store employee may,e with proper
notification, opt to hav~ his/her
,scheduled day off occur immediately )
before and after his/her vacation period.
(c) Where an employee works in a store that
observes a weekly closing day the
employee is allowed to substitute the
Saturday as the employee's weekly day
off, in the week the paid holiday occurs
provided the Employer's operations are
not disrupted.
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6.5
(a) wh~re an employee is requiredc to report )
to work at 12: 00 noon or thereafter,
overtime shal-l be computed on the basi,s
of pis/her regular scheduled work day
reduced by one .( 1) hour. In addition
he/she shall receive one-half (1/2) hour
off with pay for-a lunch period.
(b) -Where an employee is not, instructed' to
work overtime until the day during which
I the overtime- is to' be performed, the
I employee shall be reimbursed for cost of /-
one (1) meal of six dollars ($6.00),
provided the' employee works two (2) hours
or more overtime.-
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6.6
_ fa) Authorized work per~ormed in excess of
the emp~oyee's normal work day shall be
paid at the rate of one and one half (1-
1/2) times the normal hourly rate of the
employee unless otherwise provided in
this Agreement. All work performed on'
any second consecuti ve day of overtime
shall be paid at dOl,lble' the employee ':s
normal rate of pay. It is understood
that an employe~ is to receive double
rates when the employee works on the
employee's second scheduled day off.
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(d) where an employee is required-tO' work on
a, Sunday as part of. that employee ',s
regular shift, the -emJ;:>loyee is to be paid,
at the rate of one and one half (1-1/2).
times. the regular hourly rate of the ~
employee. I
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(e) Where an employee is required to work on
a Sunday, provided the Sunday is not part
- of the employee's .regular shift, the
employee shall be paid at the rate of
twice the regular hourly rate of the
employee
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6.7 Except as provided in Article 6.5
o~ertime rates shall be applicable from
the tim~ an employee completes his/her
normal work day determined from the time
he/she commences work, .but only if a
minimum of fifteen (15) minutes in excess
of the norma). hours .are worked, and
overtime rates shall be paid to the
nearest fifteen (15) minutes. An
employee who works three (3) hours in
ex.cess 'of his/her normal working ,hours
shall r~ceive one half (1/2) hour off
with pay for a lunch period.
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6.8 Authorized work performed in, excess of
five (5) regular days during any week, or
five (5) days less one (1) day for each
paid holiday (as defined in Article 7)
during that week, shall be paid at the
overtime rq.tes, ,s\lbjeqt to the other
provisions of this AgreeIl!~nt.. ~
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The material facts were set Qpt for the Board by
agreement. In the week o~ ..Monday August 2 to Friday August. 6,
1993, the grievor was sch~du~ed to'work each day from 4:00
p.m. to 12:00 mj,~night.A~ .the end of his shift on Thursday
Au~st 5th (at midnight), he performed 4 hours of overtime
between midnight and 4:00 a.m. on. Friday. Then he returned
for his scheduled shift the same qay between 4.00 p.m. and
midnight. On Sat~r~ay, ~ugust 7, 1993, he ~id overtime from
8:00 a.m. to 4:,00 p.m. The gr~,evor rl?ceived overtime pay at
the rate of 1-1/2 times for the work performed between
midnight and 4:00 a.m. on Friday and between 8:00 a.m and
4:00 p.m. on Saturday. He claims that he was entitled to the
rate of double time fo~ the hours on saturday on the grounds
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that it constituted a "second consecutive .day .of overti;me"
with'in the meaning of article 6 . '6 (a} i. In other words, he
claims that he is entitled to double time because he ,did
overtime on Friday as well. as on saturday. That is based on
~the interpr~tation that the phrase "second ,consecutive ~ay" in
article ~ 6(~) r~fer~ to a calendar ~ay~ ~
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Employer counsel on the other hand takes ~he pos,i tion
that whehart,icle .6 'is read as a. whole and' incont~xt., it is
apparent that cons~cutive '''day'' in article 6.6(a) is a
reference to consecutive "shift". Therefore double time is
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payable only if 'overtime is performed on consecu~iv.e shifts.
Since the grievor had an int~rvening regular shift (Friday
4: 00 p.m. to midnight) ih between 11is two"periop.s of overtime,
it is submitted that double time under article 6.6(a) does not
apply'. Alternatively ,~ounsel submits that even if the Board
determines ,. "consecutive in article
that day." 6.._6 (a) llleans
consecutive calendar day, the overtime" the grievqr performed
between 12' midnight and 4:00 ,a.m. on Friday is properly
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ref err able to his - Thursday shift between 4:00 p.lll. to
midnight. On tliat basis he submits that the gri~vor's
overtime occurred .on Thursday and Saturday - not on
consecutive calendar days.
The union relied heavily on ~e.James 1789/91 (Kaplan) .
There during the week in question, the grievor. did overtime of
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4 hours on Monday, 4 hours on Tu~sday, 2 hours on Thursday, 1
hour on Friday and 8 hours on Saturday. He claimed that under
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article 6.6 (a) he was entitled todoub:i.e time for the., ove~time
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hours worked on Tuesday, Friday and Saturday on the grounds
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that each of these overtime periogs constituted a "second
consecuti ve day of overtime". r '1'he employer took the position
that "just because an employee worked some overtime following
his or her normal work day two days in a row, that did not /.
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make the s~cond day's overtime wo~k "a ,second consecut~ve day
of overtime" for the purposes of attracting double pay". (p.
6) . Counsel argued that "the only ti~e that w~rehollse
employees would receive double time ~ould be if they worked
their normal hours for a wee~, then worked an over~ime full
shift and .then worked another overtime f~ll shift" (p. 5) .
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In that case, unlike here, there was no issue as to
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whether overtime must be on consecutive shifts or consecutive )
calendar days. The dispute was as to whether double time was
payable for any consecutive periods of overtime, or only for
two consecutive full shifts of overtime. The :Board rejected
the employer's interpretation and atp\ 7 held:
'It is useful to begin by considering the definition
of overtime found in Article 6.1 of the Collective
Agreement. This definition makes" it clear that .,
J overtime is any work in excess of fifteen minutes
performed on a regular working day in excess of the
regular working period. This means that ~ll of the
additional work, performed by the grievor ~n the
period under review is overtime for the purposes of
the application of Artj.cle 6.6(a} _, And that means
that the "second consecutive daY of . overtime'.. is
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n'ot. as. the employer suggests .a second full ,shif,t
of overtime. but the . second day o'nwhich overtime~
is performed in excess of. fifteen minutes.followinq
an emplovee' s normal work dav. In the instant'
case, the grievor worked overtime as defined ~n the \
Collective Agreement, on Monday, Tuesday, Thursday,
Friday and saturday. The "second consecuti:ve day
of overtime" w~s on Tuesday, Friday and Saturday,
and this additional overtime attracts double pay.
~To adopt the 'employer's interpretation in thi$ ca~e
would be to render meaningless the second sentence
of Artic;:le 6'.6 (a)" fo~ wa~ehouse employees always
work a Monday-to-Frid~y shift and already recei~e
" double pay for;. Sunday .work by virtue of another ~.
provision of the Co;Llective Agreement. The second ,'-
sentence of. Arti,.cle ~6 ~,6{a) was !)egotiated for a
reason, and considered alongside the definition of
I overtime ,and the 'Q.tl1er provisions of the
Collective Agreement, it is clear that the parties _
- intended for employees t,o -.r,eceiv~ double pay,-". .
whenever they were called upon to perform overtime
two or more days in a r,ow. on the second and
succeeding days.
(emphasis added)
It is apparent from the foregoing that the Board I s
decision was to the effect that the "second consecutive day"
does not necessarily have to be a full shift to qualify for
double time. The Board q,id not have to decide the issue
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before us, namely, ,whether "day" means a calendar day or
shift, because in th~t case each shift fell on a single
calendar day. Therefore it made no difference whether "day"
in article 6 6{a) meant "calendar day" or rishift"
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The employe~ also filed a number of Grievance Settlement
Board decisions dealing with the overtime provisions of the
OPSEU collective agreement However, that collective
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agreement includes provisions and dei:initions nc;:>t found in the
agreement that governs here. As a res\h t, those decisions are
not of much assistance r..
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In the circumstances, the Board is. left to interpret the
~ language in article ~ 6(a) to determine whet~er the double
time applies to the overtime work performed by the grievor on
the 'Saturday. If "consecuti ve day" means consecutive calendar ~ ~.
days, then clearly the grievor did overtime on Friday apd
Saturdayand~double time would apply. If on. the other hand,
the reference is to consecutive shifts, double time does not
apply, ,because no overtime was performed op consecutive
~hifts.
A general rule of interpretation is that when parties use
the same word or phrase in d~fferent provisions of a
collective agreement, it must be presumed that in each case
they attach the same meaning to the word or phrase. Likewise,
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where parties use different words or phrases in an agreement,
the assumption i~ that they mean different things by the
different words or .phrases. However, in the case at hand,
after a careful review of article 6 as a whole, the Board must
conclude that in this particular agreement the words', !'day" , r
"working day" and "shift" have been used loosely and
interchangeably. The collective agreement does not define any
of these terms We do not agree with union counsel that the
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statement in article '6.10:>) ~hat the wRrkw~ek s:t~rts qt, 12.01
a.m.- on Monday in ,effect de.f.ines "day" 1::0' mean "calepda,r 4fY".
Considering the way the WQ~ds "~ay", "w6rk-~ay"-a,pd "shift"
are used throughqut the vcq:-~ous subs~ctiol].sof artic;le ~" we
agree with emplqyer counsel t~at the parties ~id not intend to
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distinguish between those words in any .material w~y. In
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article 6.6(a) itself, the first sentence states that
"Authorized work perform~d in exces$-of 1:be.em~loyee's normal ---
work day shall be paid at the .rate of one and pne half times
the normal hourly' rate of tl'!e employe~ ....~'. ~t is clear that
the word "day" in the emphas.~zed phrase does not mean
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"c~lendar day.... "Nortl\al wc.n:-.k ,dayi~ is intended ,-;'0 r,~fer to the
employee ':s regular shif,t. ''rVe manner .in which. the word "day"
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is used ih var~ous ,phrases in tpe d:iff~:ren.j:: p~ov~sions of
article 6 indicates; that the,.parties did notinte:pd to refer
to "calendar day" every tim~ they use~ the word "day" . In the
particular context, wepref~r th~. interpret,ation that when
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they used the' phrase "se,cQnq consecutive day ,of overtime" in
article 6..6,( a.) they inten,ded '1::0 ref~r to "second: consecutive
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In our view', this interpretation isp suppq.+"ted by the
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language .the Board 'us~d in Re .James in discussing the
particular issue before it. It appears .that the Board implies
that the word "day" in the phrase "second consecutive day of
overtime" in article 6 6 (a) was synonymous with'shift In the
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language quoted at p. 7-8 (supra), the Board describes the
employer's argument in that case in terms of consecutive
"shifts" despite lthe fact that the article refers' to
consecutive days. Throughout that decis'ion the Board draws no
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distinction between "day" and i'shift". The only issue was
whether the article referred,to a full shift orday,~'
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This interpretation is also consistent with. the arbitral ---
jurisprudence holding that in the absence of an' indication to
the contrary, overtfme is deemed to attach to the preceding
shift. See, Re siiverwood Dairies Ltd. (1969) 20 L.A.C. 406
(Weatherill) . Ili the instahtcolJ.ectl ve agreement article 6.7
provides' that "... overtime rates shall be applicable from the
time an employee completes his/her normal work day determined
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froin the time helsheicommences work, but only if a minimum of
fifteen minutes in excess of the normal 'hours are. worked;, . .".
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(emphasis added). In our view this provision illustrates two
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things. First, that the parties used the phrases "normal work
day" and i'normal hours" interchangeably to mean the employee's
regular shift. Secondly, it indicates that the parties deem
an overtime period to attach to the precedin'g shift just
completed. This gives some credence to the employer's
alternate argument. that the overtime the grievor perf.ormed
after completing his 4:00 p.m. to midnight sh~ft on Thursday,
although performed on the calendar day of, friday between 12.01'
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a.m. and 4 00 a.m., is to be regarded as part of the/'Thursday
shift. ~ ,
In our view, the employer's interpretation is also
consistent with a purposive approach to interpretation The
purpose of a requirement to pay overtime is to ~iscourage the
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employer from schedul.ing work for a.n employee beyond the
J::'eg':!lar hours of work and to compensate'the employee extra for "'-
the inconvenience and hardship involved in working longer than
his regular hours. Thus this collective agreement requires
payfuent )
at 1-1/2 times for overtime work. However, ttle
parties have recognized the need for an even stron9'er
deterrent to discourage the employer from scheduling back to
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back ov~rtime and to compensate the employee with double time
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if. he does back to back overtime. This is a recognition that
back 1;0 back overtime causes even more inconvenience and
hardship. This rationale will not apply where ~he overtime
performed is not on consecutive shifts, as was the case here.
While the employee would be entitled to overtime pay at 1-1/2
times, since his Saturday overtime was not ~ack to back with
the prior period of overtime he does not endure the additional
inconvenience and hardship intended to be compensated by the
higher rate of overtime pay.
For all of the above reasons, the Board concludes that
the employer has not contravened article 6 6(a) by paying the
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grievor at 1-1/2 times for the Saturday overtime. This
grievance is accordingly dismissed.
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Dated -this2.oth day of Jun~:; ~9~5 at Hamilton, Ontario
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, ~CCO.z
, t"' .N. D.l.ssanayake
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Vice-chairperson
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H .,., ~",,=i P. Kl~
Member
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Member
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