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HomeMy WebLinkAbout2002-1510.Union Grievance.02-12-04 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 151 0/02 UNION#2002-0999-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown m RIght of Ontano (Management Board Secretanat) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Richard Blair Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat HEARING October 18 & November 18 2002 2 DECISION ThIS umon gnevance IS about hohday compensatIOn for full-tIme, classIfied employees who were desIgnated to provIde essentIal or emergency servIces dunng the most recent OPSEU strike The work stoppage lasted approXImately eIght weeks and spanned two hohdays Good Fnday and Easter Monday There IS no dIspute about the component of compensatIOn that IS payment for work done on a hohday Employees who worked on such a day were paid for theIr tIme, at tWIce the normal rate of pay, as the partIes agree they should have been The dIspute IS about the other component of hohday compensatIOn the one floWIng more dIrectly from the hohday Itself and not based upon work performed that day In tlus award, I consIder the general rules whIch detennIne the apphcatIOn of the 1999-2001 collectIve agreement to employees perfonnIng essentIal and emergency serVIces dunng the work stoppage, leavIng for later consIderatIOn how those rules apply to the specIfic provIsIOns In the agreement relatIng to hohdays I The umon contends all classIfied employees desIgnated as essentIal or emergency, regardless of whether they worked on Good Fnday or Easter Monday, are entItled to compensatIOn, In the form of a day's payor a paid day off, In recogmtIOn of each of these days For each hohday, some classIfied employees provIdIng essentIal or emergency servIces receIved a full day's pay, but others were paid for only part of a day, and stIll others denved no benefit at all from the hohday The employer's treatment of employees IS best described by dIVIdIng them Into three broad categones The first IS compnsed of essentIal 3 employees who contInued to work theIr full, pre-strikes hours dunng the two-week pay penod whIch Included a hohday The treatment of these employees can be Illustrated by reference to Good Fnday It fell on March 29, at the end of a pay penod. Employees workIng theIr regular hours throughout thIS penod got a day's pay In recogmtIOn of the hohday, wIthout reference to whether they worked that day For example, an employee, who had worked an eIght -hour day before the strike, receIved eIght hours' vacatIOn pay for Good Fnday, Ifhe or she worked eIght hours on each of the nIne days precedIng the hohday, for a total of 72 hours In the pay penod. The employer concedes these employees were entItled to compensatIOn In recogmtIOn of the hohday As to employees In the other two categones, the employer asserts they were not entItled to compensatIOn and all payments made were gratUItous The second category IS compnsed of essentIal employees who worked less than theIr regular hours dunng a pay penod wIth a hohday They had theIr hohday pay pro-rated. For example, an employee, who had worked an eIght- hour day before the strike, or 72 hours over nIne days, receIved four hours' hohday pay for Good Fnday, Ifhe or she worked 36 hours In the nIne days precedIng the hohday Emergency employees constItute the tlurd category TheIr entItlement to hohday pay was determIned by reference to the number of hours worked dunng the four days precedIng the hohday and the four folloWIng It, not by reference to total hours worked dunng a pay penod. For example, an employee, who before the strike worked eIght hours a day from Monday to Fnday, was paid for eIght hours for each hohday, Ifhe or she worked eIght hours on the four days precedIng Good Fnday and on the four days folloWIng Easter Monday If the same employee had worked four hours a 4 day throughout these eIght quahfYIng days, he or she would have receIved four hours' pay In recogmtIOn of each hohday II I was referred to the folloWIng sectIOns of the Crown Employees Collectlve Bargaznzng Act, 1993 (CECBA) deahng wIth essentIal and emergency servIces 30 In thIS part, "essentIal servIces" means servIces that are necessary to enable the employer to prevent, (a) danger to hfe, health or safety, (b) the destructIOn or senous detenoratIOn of machInery, eqUIpment or premIses, (c) senous envIromnental damage, or (d) dIsnlptIOn of the admInIstratIOn of the courts or of legIslatIve draftIng "essentIal servIces agreement" means an agreement between the employer and trade umon that apphes dunng a strike or lockout and that has, (a) an essentIal serVIces part that provIdes for the use, dunng a strike or lockout, of employees In the bargaInIng umt to provIde essentIal servIces (b) an emergency serVIces part that provIdes for the use, dunng a stnke or lockout, of employees In the bargaInIng umt, In addItIon to those In clause (a), In emergencIes 40 (1) Dunng a strike or lock-out, the employer IS entItled to use, to provIde essentIal servIces, such employees In the bargaInIng umt as are necessary as provIded In the essentIal servIces part of the essentIal servIces agreement 5 (2) The employer shall notIfy the employees who, under the essentIal servIces part of the essentIal servIces agreement, the employer IS entItled to use under subsectIOn (1) dunng a strike or lock-out (3) Employees who have been not~fied by the employer or trade unlOn that the employer lS entltled to use them under subsectlOn (1) may not strzke and may not be locked out 41 (1) In an emergency dunng a strike or lock -out, the employer IS entItled to use such employees as the emergency serVIces part of the essentIal serVIces agreement provIdes for (2) Employees who have been not~ed that the employer lS entltled to use them under subsectlOn (1) and wlshes to do so may not strzke whzle the employer lS so entltled and so wlshes (emphasIs added) Under tlus statutory framework, the partIes executed an agreement, dated September 20,2001, entItled CondItIons for the 2001-2002 OPS- OPSEU EssentIal ServIces and CollectIve Agreement NegotIatIOns (the 2002 condItIons document) ThIS document contaInS the folloWIng defimtIOns of essentIal and emergency serVIces EssentIal servIces shall be determIned In accordance wIth sectIOn 30 of CECBA 1993 EmergencIes are those servIces specIfied In bargaInIng umt essentIal servIce agreements and any other unforeseen CIrcumstances whIch call for Immediate actIOn that falls wIth the defimtIOn of sectIOn 30 of CECBA 1993 The tenns and condItIons of employment for employees provIdIng essentIal and emergency serVIces are governed by artIcle C3a of the condItIons document All collectIve agreement prOVISIOns apply to essentIal and emergency workers wIthout InterruptIOn, save only that AppendIx 9 and AppendIx 18 shall not apply 6 WIth respect to Umon dues, the Umon can set dues (regular and supplementary) dunng a strike or lockout for essentIal and emergency employees who perform work, and the Employer shall remIt them, except that the total deductIOn shall not be In excess of 31 375% F or employees who are desIgnated and used for essentIal serVIces the above terms and condItIons of employment apply F or those employees who are used to perform emergency servIces as provIded In the emergency servIces part of the essentIal servIces agreements and as reqUIred by the Employer the above terms and condItIons of employment apply After detennInIng that an employee IS to be used to perform emergency serVIces work, the above terms and condItIons of employment apply The collectIve agreement referenced IS the 1999-2001 contract III The apphcatIOn of a collectIve agreement to emergency employees was consIdered by thIS board In two cases arISIng out of the first OPSEU strike In 1996 (1) OP SEU (Couszns) and Mlnzstry of Solzcltor General and CorrectlOnal Servlces, decIsIOns dated July 23, 1996, GSB FIle No 822/96 (Roberts), (2) OPSEU (Burm,) andMlnzstry ofSolzcltor General and CorrectlOnal Servlces, decIsIOns dated July 23, 1996, GSB FIle No 823/96 (Roberts) At that tnne, sectIOns 40(4) and 41(3) ofCECBA stated that a collectIve agreement apphed to essentIal and emergency employees "used" dunng a work stoppage, "unless the employer and trade umon agree otherwIse" (These prOVISIOns have SInce been repealed.) In ('ouszns and Burns the board was called upon to Interpret documents whIch dId provIde otherwIse The gnevor In Couszns was desIgnated as an emergency employee, her "name appeared on a hst of personnel to be called In to replace any 7 essentIal employees who were away from work" (page 1) She claimed reImbursement for dental expenses Incurred by famIly members on March 7 and 26 On March 20, she was scheduled to work on March 30 and 31 and Apnll, 2, and 5 The umon contended the gnevor was entItled throughout the strike to dental benefits, under the expIred collectIve agreement, because she had been desIgnated to perform emergency servIces AccordIng to the employer, her entItlement was hmIted to dental work done on days she reported for duty VIce-Chair Roberts rejected both of these arguments as unsupported by the wordIng of the apphcable condItIons document, dated January 11, 1996 He rehed upon the thIrd paragraph In artIcle C 1 of the 1996 document whIch IS IdentIcal to the fourth paragraph In artIcle C3a of the 2002 verSIOn quoted above Mr Roberts wrote ThIS wordIng dId not say that once an employee actually commenced the perfonnance of emergency servIces work, he or she would be covered by the collectIve agreement Instead, It stated that "the collectIve agreement wIll apply" after "detennInIng that an employee IS to be used to perform emergency serVIces work." ThlS made the "key" to applzcatlOn of the collectlve agreement the date upon whlch the employer actually "determzned" to use an employee zn th,S way In my opznlOn, the date upon whlch the employer "determzned" that the grzevor would be used to peiform emergency servlces work was the date upon whIch she was scheduled to work dunng the strike, 1 e , March 20, 1996 Pnor to that date, there was too much uncertaInty The gnevor was Just one among a number of employees deemed quahfied to perform such work. She mIght never have been called upon to work dunng the stnke Once the gnevor was scheduled to work, however, all uncertaInty came to an end The employer had "determIned" to use the gnevor to perform emergency servIces work wItlun the meanIng of the "CondItIons" agreement From that date untzl the completlOn of per:formance of the work, the prOV1SlOns of the collectlve agreement -- zncludzng the dental bene.fit plan -- applzed to the grzevor 8 ThIS means that when dental servIces were provIded to the gnevor's husband, Robert, on March 26, 1996, the gnevor was covered by the benefit plans Included In the collectIve agreement When dental serVIces were provIded to her son, Aaron, on March 7, 1996, however, the gnevor was not covered. (pages 4 and 5, emphasIs added) In short, the condItIons document was Interpreted to mean that entItlement to dental benefits began when an employee was scheduled to work and ended when all scheduled work was fimshed. The gnevor In Burns was a correctIOnal officer Officers at each InstItutIOn were dIvIded Into two groups, wIth essentIal servIces beIng provIded by one group for the first penod of two weeks, then by the other group for the next two weeks, and so on Dunng any two-week penod when a partIcular group of employees was not provIdIng essentIal servIces, they could be called upon In an emergency The gnevor vIsIted hIS dentIst on the second day of the strike, when he was aVailable to perform emergency servIces but not reqUIred to provIde essentIal serVIces HIS entItlement to be reImbursed for dental benefits was determIned by reference to the essentIal servIces umbrella agreement for the correctIOnal servIces bargaInIng umt (The decIsIOn makes no mentIOn of the condItIons document consIdered In Cowans) The relevant prOVISIOns of the umbrella agreement stated. 6 All prOVISIOns of the collectIve agreement shall apply to bargaInIng umt employees desIgnated to provIde emergency serVIces under tlus agreement, or as agreed to by the partIes at the central table 21 (c) It IS understood that employees are only deemed to be essentIal for the rotatIOnal penod dunng whIch they are reqUIred to work It IS also understood that at all other tunes they are deemed to be emergency servIce personnel ApplYIng these sectIOns to the facts at before hIm, Mr Roberts wrote 9 EquatIng "desIgnated" under sectIOn 6 of the emergency serVIces agreement WIth "deemed" under sectIOn 21 (c) of the umbrella agreement would lead to the conclusIOn that the partIes Intended the collectIve agreement to apply to all correctIOnal officers In the bargaInIng umt throughout the entIre penod of the strike Throughout thIS penod, correctIOnal officers were deemed under the umbrella agreement to be eIther essentIal workers or emergency serVIces personnel AccordIng to the submIssIOns of the umon, the collectIve agreement would apply to them regardless of whIch they were deemed to be It would not matter If a correctIOnal officer were ever called In to perform emergency serVIces work It would not matter If the correctIOnal officer spent all of Ius non-essentIal rotatIOn of the pIcket hne To ascribe so far-reachIng an IntentIOn to the partIes--and In partIcular, the employer--would be unreasonable It seems to me that the more reasonable InterpretatIOn of "desIgnated" under sectIOn 6 of the emergency serVIces agreement would be to equate It to "scheduled" or "called In" by the employer to provIde emergency servIce Scheduhng or callIng In an employee for thIS purpose would seem to be an appropnate pOInt at whIch to tngger apphcatIOn of the collectIve agreement to an otherwIse-strikIng employee It IS then that the nghts and responsibIhtIes of the employer and employee under the emergency servIces agreement crystalhze The employer expects to receIve emergency serVIces at a specIfic tIme from a specIfic employee The employee IS reqUIred to provIde them In return, the employee reasonably expects to receIve the benefit of the collectIve agreement In the present case, the gnevor Incurred Ius dental expense on the day after the commencement of the strike At that tlme, he was deemed to be emergency serVlces personnel under the umbrella agreement but had not been scheduled or called zn by the employer to per:form emergency serVlces Accordzngly, the collectlve agreement dld not apply to the grzevor at the tllne of hlS dental expense, and he cannot claim reImbursement under the dental benefit plan of the agreement (pages 3 and 4, emphasIs) In other words, the gnevor's claim for reImbursement was demed because Ius dental expenses had been Incurred before he had been called In or scheduled to work as an emergency employee 10 IV ThIS sectIOn of my award addresses the apphcatIOn of the 1999-2001 collectIve agreement to emergency employees, the entItlement of essentIal employees IS consIdered In the next sectIOn As the same paragraph deahng wIth emergency employees appears In both the 1996 document and the one for 2002, I begIn wIth the meanIng of tlus paragraph, vIewed In the context of the earher document, and then consIder the ImphcatIOns of changes made elsewhere In the later document The paragraph IS repeated here for ease of reference F or those employees who are used to perform emergency servIces as provIded In the emergency servIces part of the essentIal servIces agreements and as reqUIred by the Employer the above terms and condItIons of employment apply After detennInIng that an employee IS to be used to perform emergency serVIces work, the above terms and condItIons of employment apply Counsel on each sIde argued the two sentences In tlus paragraph deal wIth mutually exclusIve subjects AccordIng to umon counsel, the second sentence IS about emergency workers IdentIfied through a fonnal desIgnatIOn process and the first sentence about those selected In some other way Employer counsel contends the first sentence deals wIth servIces specIfically IdentIfied In an emergency servIces agreement and the second wIth other emergency servIces As neIther sentence makes any mentIOn of a partIcular type of servIce or a partIcular mode of selectIOn, I conclude both of these InterpretatIOns are dubIOus Both are also at odds wIth the ruhng In Couszns VIce-Chair Roberts drew no dIstInctIOn between types of emergency serVIces or methods of selectIng emergency workers, merely notIng the gnevor's name was on a hst 11 of people to be used as replacements He read the second sentence as ImpOSIng a temporal hmItatIOn on the entItlement of emergency employees under a collectIve agreement In other words, he treated both sentences as governIng all emergency employees, wIth the first saYIng the collectIve agreement apphed to them, and the second modIfYIng the first by addIng a tune hmIt In my VIew, tlus IS the most reasonable InterpretatIOn of how the 1996 document dealt wIth emergency servIces Does the Cowans decIsIOn offer any gUIdance about the proper treatment of emergency workers dunng the 2002 strike? ArtIcle C3a of the 2002 document omIts one proVIsIOn found In the 1996 verSIOn and contaInS two others not found there All relevant parts of the later document are quoted In the second sectIOn of thIS award The correspondIng paragraphs from the ear her one state F or employees who are on strike, the collectIve agreement apphes F or employees who are desIgnated and used for essentIal serVIces the above terms and condItIons of employment apply F or those employees who are used to perfonn emergency servIces as provIded In the emergency servIces part of the essentIal servIces agreements and as reqUIred by the Employer the above terms and condItIons of employment apply After determInIng that an employee IS to be used to perform emergency serVIces work, the above terms and condItIons of employment apply Counsel for the umon notes the first paragraph, about "employees who are on strike", IS omItted from the 2002 condItIons document The sIgmficance of the omISSIOn depends upon what thIS clause meant In 1996 The overall stnlcture of the earher document IS not hard to dIscern ArtIcle Cl has three paragraphs, each deahng wIth a dIfferent category of employees the first addresses those on stnke, who have not been desIgnated 12 to provIde essentIal or emergency servIces, the second concerns essentIal workers and the thIrd emergency workers The first paragraph makes the ObVIOUS pOInt that the collectIve agreement does not apply to employees who are not desIgnated to provIde essentIal or emergency servIces As tlus paragraph IS not about essentIal or emergency workers, ItS omIssIOn from the 2002 document has no Impact on how the collectIve agreement apphes to them The first two paragraphs of artIcle C3a of the 2002 document have no counterpart In the one for 1996 For ease of reference, these prOVISIOns are repeated here All collectIve agreement prOVISIOns apply to essentIal and emergency workers wlthout znterruptlOn, save only that AppendIx 9 and AppendIx 18 shall not apply WIth respect to Umon dues, the Umon can set dues (regular and supplementary) dunng a strike or lockout for essentIal and emergency employees who per:form work, and the Employer shall remIt them, except that the total deductIOn shall not be In excess of 31 375% (emphasIs added) EmphaSIZIng the words "who perfonn work" In the second paragraph, umon counsel notes there IS no analogous language elsewhere In artIcle C3a. In my VIew, thIS observatIOn does not assIst In constnllng the remaInIng paragraphs The second paragraph allows the umon to Impose a levy on essentIal and emergency workers, the only employees who receIve wages from the employer dunng a strike, In order to raise money for dIstnbutIOn to stnkers who have forgone all such wage payments Once the decIsIOn to have such a levy has been made, lOgIC dIctates that It apply only to those "who perform work." Even If the document was not exphcIt on tlus pOInt, one would Infer such a levy apphes exclusIvely to workIng employees For 13 thIS reason, I conclude the InSertIOn of the phrase "who perform work" In the second paragraph has no real sIgmficance and does not suggest the partIes Intended paragraphs lackIng tlus phrase to Include non-workIng employees Umon counsel also rehes upon the words "wIthout InterruptIOn" In the first paragraph of artIcle C3a. These words first appeared In an OLRB order, dated January 12, 1999, Issued because the partIes where unable to agree on how the collectIve expInng In 1998 would apply dunng a work stoppage, If one occurred dunng negotIatIOns for ItS renewal (By thIS tIme, CECBA no longer dealt wIth the apphcatIOn of a collectIve agreement dunng a stnke or lockout) The OLRB order stated that "all collectIve agreement prOVISIOns apply to essentIal workers wIthout InternlptIOn", save for AppendIx 9 whIch was later determIned not to apply In a later decIsIOn, dated January 27, 1999, the OLRB IndIcated the term "essentIal" had been used to Include "emergency" (paragraphs 6 and 10) The partIes subsequently executed a condItIons document, dated February 4, 1999, contaInIng terms whIch are IdentIcal, for present purposes, to artIcle C3a of the 2002 document (The only dIfference IS that the later document mentIOns AppendIx 18 as well as AppendIx 9 ) The most ObVIOUS purpose of the first paragraph of artIcle C3a IS to IndIcate that the entIre collectIve agreement, wIth the sole exceptIOn of two appendIces, apphes to employees provIdIng essentIal or emergency servIces The accomphshment of tlus purpose dId not reqUIre InsertIng the words "wIthout InterruptIOn" Counsel contends these two words were Inserted to ensure an employee desIgnated to provIde essentIal or emergency serVIces was covered by the collectIve agreement throughout a work stoppage AccordIng to tlus argument, the added words were meant to reverse the 14 nllIng In Cowans that a collectIve agreement dId not apply to an emergency employee before work was scheduled or after It was completed The ObVIOUS counter argument IS that the paragraph about emergency workers, upon whIch the Couszns decIsIOn was based, was carrIed over In ItS entIrety from 1996 to 2002 It IS now the fourth paragraph of artIcle C3a. VIce-Chair Roberts construed the second sentence In tlus paragraph as servIng the sole purpose of unpOSIng a temporallunItatIOn on the first, whIch says the collectIve agreement apphes to emergency employees If the phrase "wIthout InterruptIOn" In the opemng paragraph of artIcle C3a IS read to say they are covered by the collectIve agreement for the duratIOn of a work stoppage, the first paragraph dIrectly contradIcts the fourth as Interpreted In Cowans Such a contradIctIOn would produce an ambIgUIty about whether the temporallunItatIOn from 1996 survIved In 2002 The clearest way to over-nde the nllIng In Cowans would have been to delete or modIfy the second sentence In the paragraph about emergency workers ThIS was not done Counsel for the employer contends emergency employees are entItled to the benefit of the collectIve agreement only when workIng because they are on strike the rest of the tune ThIS argument IS based upon s 41 (2) of CECBA repeated below for ease of reference Employees who have been not~fied that the employer IS entItled to use them under subsectIOn (1) and wIshes to do so may not strike wlule the employer IS so entItled and so wIshes (emphasIs added) Counsel reads thIS prohIbItIon agaInst emergency employees gOIng on strike as applYIng only when they are perfonnIng essentIal servIces The same constructIOn was adopted by the OLRB In OPSEU and Crown zn Rlght of OntarlO [1995] O.L.R.B 735 at paragraph 22 I note thIS InterpretatIOn pays 15 no heed to the words "who have been notIfied" ThIS phrase makes the nght to stnke depend, not on what employees are dOIng, but rather on what notIficatIOn they have receIved. I need not dwell upon the proper InterpretatIOn of tlus sectIOn, because CECBA no longer governs the apphcatIOn of a collectIve agreement dunng a strike, leavIng thIS matter to be detennIned by the partIes TheIr detennInatIOn IS embodIed In the 2002 condItIons document and my task IS to Interpret artIcle C3a of that document The foregoIng analysIs leads me to conclude Couszns contInues to embody the rules detennInIng when emergency employees enJoy the benefit of the collectIve agreement The decIsIOn In that case set out the rules applYIng In 1996 The same nlles contInued to apply In 2002, because the current condItIons document IS ambIguous as to whether they have been changed. V I turn now to consIder how the collectIve agreement apphes to employees desIgnated to perfonn essentIal serVIces Does the Burns decIsIOn offer any gUIdance on tlus subJect? The gnevor In that case rotated between beIng aVailable to work as an emergency employee In one two-week penod and workIng as an essentIal employee In the next He belonged to the group of employees slated to begIn perfonnIng essentIal servIces In the thIrd week of the strike When he went to the dentIst on the second day of the work stoppage, he was slated to provIde essentIal servIces In less than two weeks The effect of the decIsIOn In Burns was to deny hun reImbursement for a dental expense Incurred In the Interval between the scheduhng and performance of essentIal work, even though he 16 would have been reImbursed for a sImIlar expense Incurred between the scheduhng and performance of emergency work. VIce-Chair Roberts analysIs In Burns acknowledges the gnevor's role as an essentIal employee, but makes no mentIOn of the dental appoIntment occurnng wlule he was scheduled to do essentIal work As well as gloSSIng over thIS fact, the Burns decIsIOn does not cIte any proVISIOn, from eIther the condItIons document or the correctIOns umbrella agreement, specIfYIng how the collectIve agreement apphes to employees performIng essentIal servIces The decIsIOn IS based exclusIvely upon provIsIOns In the umbrella agreement dealIng wIth emergency employees For these reasons, I conclude the ruhng In Burns provIdes no authontatIve gUIdance as to the proper treatment of essentIal employees, even In the context of the 1996 stnke The treatment of essentIal employees In 2002 IS governed by the first and thIrd paragraphs of artIcle C3a. The thIrd paragraph, deahng exclusIvely wIth essentIal workers, contaInS wordIng sIgmficantly dIfferent than the fourth paragraph, dealIng exclusIvely wIth emergency workers The first, tlurd and fourth paragraphs are repeated here for ease of reference All collectIve agreement prOVISIOns apply to essentIal and emergency workers wIthout InterruptIOn, save only that AppendIx 9 and AppendIx 18 shall not apply F or employees who are desIgnated and used for essentIal serVIces the above terms and condItIons or employment apply F or those employees who are used to perform emergency servIces as provIded In the emergency servIces part of the essentIal servIces agreements and as reqUIred by the Employer the above terms and condItIons of employment apply After determlnzng that an employee IS to be used to perform emergency serVIces work, the above terms and condItIons of employment apply (emphasIs added) 17 The word "after" In the fourth paragraph has no analogue In the second. ThIS IS the very word that led VIce-Chair Roberts In Cowans to conclude there was a temporallunItatIOn on the apphcatIOn of the collectIve agreement to emergency workers He read "detennInIng" to mean scheduhng and held that the collectIve agreement apphed only after an employee had been scheduled to work. The omISSIOn of "after" In the tlurd paragraph suggests essentIal workers are not subJect to the same temporal hmItatIOn as those performIng emergency serVIces ThIS InterpretatIOn IS reInforced by the words "wIthout InterruptIOn" In the openIng paragraph Counsel for the umon contended the word "and" In the second paragraph, about essentIal employees, should be treated as dIsJunctIve rather than conJunctIve I reJect thIS suggestIOn that "and" means "or" The second paragraph creates two condItIons for coverage under the collectIve agreement To have the benefit of the agreement, an employee must be desIgnated to do essentIal work and actually do some The collectIve agreement has no apphcatIOn to an employee who IS desIgnated to perfonn essentIal serVIces but who does no such work dunng a work stoppage F or an employee who IS desIgnated to provIde essentIal servIces and does so, when does he or she begIn to receIve the protectIOn of the collectIve agreement and when does that protectIOn cease? The absence of any temporal hmItatIOn In the thIrd paragraph of artIcle C3a, together wIth the phrase "wIthout InterruptIOn" In the first, IndIcate that such an employee IS covered by the collectIve agreement from the first day of the work stoppage to the last 18 VI My conclusIOns about artIcle C3a of the 2002 condItIons can be bnefly summarIzed. 1 An emergency worker was covered by the collectIve agreement In the Interval between beIng scheduled to work and completIng all scheduled work The collectIve agreement dId not apply to such an employee before beIng scheduled to work or after all scheduled work had been completed. 2 The collectIve agreement has no apphcatIOn to an employee who was desIgnated to provIde essentIal serVIces but performed no such work dunng the strike 3 An employee who was desIgnated to perform essentIal serVIces, and who dId so, was covered by the collectIve agreement for the entIre duratIOn of the stnke The collectIve agreement apphed dIfferently to emergency workers than to essentIal workers, even though the fonner sometImes were scheduled for duty In much the same way as were the latter ThIS dIfferentIal treatment IS a product of the condItIons document whIch recogmzes two categones of employees and uses very dIfferent language to descnbe the apphcatIOn of the collectIve agreement to one than to the other RemaInIng to be determIned IS what these general conclusIOns about collectIve agreement coverage Imply about entItlement to hohday com pensatIon Issued at Toronto tlus 4th day of December, 2002 ;iZ' /' / /,~ RIchard Brown VIce-Chair