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HomeMy WebLinkAbout2002-2908.Gerrard.03-05-08 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# 2908/02 UNION# OLB486/02 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Control Boards Employees' Umon (Gerrard) Grievor - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE N Dlssanayake Vice-Chair FOR THE UNION Ursula Boylan Kosky Minsky BarrIsters and SOlICItorS FOR THE EMPLOYER Rhonda R. Shlrreff Heenan BlaIkIe LLP BarrIsters and SOlICItorS HEARING Apnl 10 2003 2 DECISION This lS a grievance wherein the grlevor, Mr Gord Gerrard, grleves that he was not paid in accordance with the terms of the collective agreement for the work he performed on November 11, 2002, Remembrance Day Article 7 of the collective agreement lS titled "Paid Holidays" The following subsections are material to the dispute between the parties 7 1 An employee shall be entitled to the following paid holidays each year New Year's Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day and any special holiday as proclaimed by the Governor-General or Lieutenant Governor If, during the term of this Agreement, a public holiday is proclaimed by the Governor-General, such holiday shall be deemed to be a paid holiday 7 4 In addition to the entitlement to holiday pay, where an employee lS required to perform work on a paid holiday (refer to Article 7 1) , he/she shall also be entitled to receive payment in the amount of two (2 ) times their regular straight time hourly rate for all hours worked on the holiday 3 7 6 In addition to the entitlement to holiday pay, where an employee lS required to report for any period of work on a paid holiday (refer to Article 7 1 ) , he/she shall be paid a minimum of four (4 ) hours at two (2 ) times their normal hourly rate of pay Where an employee performs work in excess of four (4 ) hours, he/she shall be entitled to a minimum of the normal daily hours of work at two (2 ) times their regular hourly rate of pay as set out in the Salary and Classification Schedule The facts are not in dispute Under the collective agreement work on a public holiday is considered voluntary overtime The grlevor, among others, volunteered to, and was scheduled to work on the Remembrance Day in question It lS further agreed that the grlevor In fact worked 5~ hours that day It lS common ground that the grievor was paid holiday pay for 8 hours at regular rates as required by article 7 1 The grievor received a further payment for 5~ hours at double time under article 7 4 The union claims that the grlevor should have received payment at double time, not for the actual hours worked i e 5~ hours, but for 8 hours In other words, it lS the union's position that the grlevor was entitled to be paid, not under article 7 4 (double time for actual hours worked), but under the last part of article 7 6 which prescribes payment for "a minimum of the normal daily hours of work at two times their regular hourly rate of pay", where the employee works more than 4 hours on a public holiday If that had been done, the grievor would have 4 received double time for 8 hours, in addition to the holiday pay under article 7 1 The grlevor seeks an order for payment of the difference of 2~ hours at double time The lssue then is whether, on the facts of this case, the grlevor was entitled to be paid for actual hours worked (5~ hours) at double time under article 7 4, or for his normal daily hours of work ( 8 hours) at double time under article 7 6 The employer's position is that the greater premium payment In article 7 6 is payable only in circumstances where an employee not scheduled to work is required to work at short notice In the grievor's case, he was scheduled in advance and he expected to work that day He did not suffer any disruption of his personal plans by working on the holiday The employer submits that in the circumstances, the grlevor was only entitled to the lesser premium in article 7 4 to be paid double time for actual hours worked The union submits that on a plain reading, the language In article 7 6 applies to the facts here Counsel points out that there lS no language in article 7 6 to suggest that it only applies In cases of "call-ins" with short notice, or cases where the employee was required to work unexpectedly Article 7 6 draws no distinction between scheduled and unscheduled employees The language used is "required to report", and the grlevor was "required 5 to report" as soon as he agreed to work on the holiday Therefore, article 7 6 applies I agree that article 7 6 read by itself, appears to apply to the facts before me, in that it does not explicitly qualify the entitlement to employees not included in the schedule or to unexpected "call-ins" However, the difficulty is that on a plain reading, article 7 4 also lS applicable to the facts here If article 7 4 lS applied, the grlevor lS entitled to double time only for the actual hours worked If article 7 6 lS applied, on the other hand, he lS entitled to his regular daily hours at double time The latter provision confers a greater benefit than the former In the face of this apparent contradiction between two articles, one must look for an interpretation which is reasonable and makes more sense Both articles cannot be applied at the same time because they lead to different results It must be noted that premium payments for working on a paid holiday represent a recognition of the . . and sacrifice resulting when an lnconvenlence employee, who otherwise was entitled to take the day off, agrees to work Extending that same rationalization, it makes very good logic, that greater the . . and sacrifice, greater the lnconvenlence monetary reward should be On that reasonlng, I prefer the employer's position Where an employee who was not scheduled in 6 advance to work on the holiday agrees to work on that day at short notice, the . . and sacrifice would generally be greater lnconvenlence The employee may, for instance, have to cancel plans he or she had already made for the day He or she may have to make last minute arrangements such as for child care In contrast, an employee who was scheduled in advance would have always planned to work on the holiday The . . and sacrifice, if any, would be less lnconvenlence Thus, it lS logical that the parties would intend that the former employee be rewarded with a greater premium than the latter This interpretation also draws support from a review of the evolution of article 7 6 That article was first included in the 1989 collective agreement In previous collective agreements, premium pay for paid holidays, where more than 4 hours of work are performed, was dealt with in a single article along with premium pay for work on days that are not regular working days and work on scheduled days off Thus, in the 1987 collective agreement holiday premlum pay was covered by article 6 10 (a) which read 6 10 (a) Where an employee lS required to report for any period of work on a paid holiday (as defined in Article 7 ) or other day that is not a regular working day, or on his scheduled day off, he shall be entitled to a credit of a minimum of four (4 ) hours of pay at overtime rates, but where an employee performs work for more than four (4 ) hours after being so required to report for work, he shall be 7 entitled to a minimum of eight (8 ) hours of pay at the overtime rate That collective agreement also included article 7 4 which then read 7 4 Where employees are required to perform work on a paid holiday (refer to Article 7 1 ) such employees shall be entitled to receive payment in the amount of three (3) times their regular straight time hours rate for all hours worked on such holiday At the time there was no provision corresponding to the current article 7 6 Article 6 10 stipulated that a minimum of 8 hours at overtime rates be paid to employees in several situations where he/she works more than 4 hours on a day not scheduled, including a paid holiday Starting with the 1989 collective agreement, however, the parties carved out the situation where an employee lS required to work more than 4 hours on a paid holiday from article 6 10, and included a separate provision, article 7 6, to deal with that However, article 7 4 was continued, resulting in the inconsistency between articles 7 4 and 7 6 The interpretation advocated by the employer resolves the inconsistency between articles 7 4 and 7 6 on a reasonable and logical basis On the other hand, the interpretation urged by the unlon, in effect, renders article 7 4 redundant In the circumstances, I prefer the former interpretation 8 For those reasons I conclude that there has been no breach of the collective agreement and the grlevance is hereby dismissed Dated this 8th day of May, 2003 at Toronto, Ontario ~F " . -' .. -, > .. . ,. .... ... 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