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HomeMy WebLinkAbout2004-3129.Savage et al.05-08-15 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# 2004-3129 UNION# 2004-0453-0013 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Savage et al ) Union - and - The Crown In RIght of Ontano (St. Lawrence Parks CommIssIOn) Employer BEFORE Deborah lD LeIghton Vice-Chair FOR THE UNION Tim Hanmgan Ryder Wnght Blair & Holmes LLP BarrIsters and SOlICItorS FOR THE EMPLOYER PIerre PInet Human Resources Consultant St. Lawrence Park CommIssIOn HEARING May 4 2005 2 DeCISIon The gnevors allege that they have not been paid properly for holIdays that fell on theIr regularly scheduled workdays The heanng proceeded by way of an agreed statement of facts and oral argument. The partIes agreed to the folloWIng Agreed Statement of Facts The Gnevors 1 Brenda Lauzon was appoInted to the ClassIfied ServIce as a regular part-tIme employee on May 21 2001 Dunng the relevant tImes the gnevor occupIed the posItIOn of Group Leader Customer ServIces Umt, whIch IS part of the Customer ServIce and Office AdmInIstratIOn DIvIsIOn. The gnevor reports to Bonme VanMoorsel who IS the Manager of the DIVISIOn. 2 Dems Savage was employed dunng the relevant tImes as a Translator In the Product Development and MarketIng DIvIsIOn. The gnevor reported to Susan LeClair Product Development Officer Bruce FItz-GIbbon IS the DIrector of the DIVISIOn. Mr Savage was appoInted to the ClassIfied ServIce as a regular part-tIme employee on September 1 2003 Mr Savage retIred from the Ontano PublIc ServIce on February 18 2005 3 Dunng the weeks ImmedIately precedIng and folloWIng the holIday penod, Mr Savage was scheduled to work 21 75 hours per week and normally worked on Monday Tuesday and Thursday of each week. These hours as well as the workIng days could vary accordIng to operatIOnal reqUIrements folloWIng dIscussIOns wIth the employee or by mutual agreement. 4 Dunng the weeks ImmedIately precedIng and IncludIng the week begInmng December 26 2004 Ms Lauzon was scheduled to work 36 00 hours per week and normally worked from Monday to Fnday of each week. StartIng the week begInmng January 2,2005 Ms Lauzon's hours of work were reduced to 29 hours per week and was not scheduled to work on Monday January 2,2005 These hours as well as the workIng days could vary accordIng to operatIOnal reqUIrements folloWIng dIscussIOns wIth the employee or by mutual agreement. 5 For the purpose of thIS Agreement, the holIday penod Includes the folloWIng work weeks - week begInmng December 26 2004 and - week begInmng January 2,2005 3 Factors GIVIng RIse to the DIspute 6 On October 5 2004 the Employer posted a memo InformIng employee of the rules govermng holIday payment and tIme off dunng the 2004 Chnstmas holIdays (December 25 and 26 2004 and January 1 2005) 7 Because both the Chnstmas Day and BOXIng Day holIdays fell on a succeSSIve Saturday and Sunday In 2004 the Employer wanted to ensure that staffwere aware of the manner these events was treated by the vanous collectIve agreements and the applIcable legIslatIOn. 8 All offices of the Ontano PublIc ServIce, IncludIng those of the St. Lawrence Parks CommIssIOn, were closed on Monday December 27 and Tuesday December 28 2004 Offices were also closed on Monday January 3 2005 9 At the tIme of the events gIVIng nse to thIS gnevance, the St. Lawrence Parks CommIssIOn employed 14 regular part-tIme employees In the classIfied servIce 11 - OPSEU 1 - AMAPCEO 2 - ManagementlExcluded 10 Monday December 27 and Tuesday December 28 as well as Monday January 3 would normally have been workIng days for Mr Savage 11 Monday December 27 and Tuesday December 28 would normally have been workIng days for Ms Lauzon. 12 The Employer permItted the affected employees to make up tIme eIther pnor to or folloWIng the holIdays by reschedulIng theIr hours of work or by USIng vacatIOn days and/or tIme allowed. 13 All of the affected employees, IncludIng the gnevors, took advantage of the Employer's offer 14 Regular part-tIme employees dId not suffer any reductIOn In pay In the pay penod dunng whIch the holIdays occurred because of hIS or her InabIlIty to work on the above days due to the cloSIng of the office 15 The gnevors requested to work the days for whIch they were scheduled, but thIS request was demed. 4 The Gnevance 16 The Umon, on behalf of the gnevors, filed a group gnevance on November 18 2004 pursuant to ArtIcle 22 11 1 of the CollectIve Agreement allegIng that the Employer breached the CollectIve Agreement by denYIng holIday pay and/or regularly scheduled ShIftS to the gnevors 17 A Stage Two meetIng was held on December 13 2004 18 The Employer responded to each IndIVIdual of the Group Gnevance by letter dated December 16 2004 denYIng any vIOlatIOn of the collectIve agreement. 19 The entItlement to holIday payment for regular part-tIme staffwho are members of the OPSEU bargaInIng umt are governed by the provIsIOns of ArtIcle 73 of the CollectIve Agreement. SUBMISSION OF THE PARTIES Counsel for the umon, Tim Hanmgan, submItted that ArtIcle 73 of the collectIve agreement applIes to the part-tIme employees Counsel argued that part-tIme employees were therefore, entItled to be paid If they were regularly scheduled on one of the days noted In ArtIcle 73 SInce Chnstmas, BOXIng and New Year's Days In thIS case fell on a Saturday Sunday and Saturday respectIvely the statutory holIdays were recogmzed on the folloWIng Monday and Tuesday for Chnstmas and BOXIng Day and the Monday for New Year's Day Counsel argued that SInce the holIday was moved to Monday Tuesday and Monday and the gnevors were normally scheduled to work on those days, they should be paid for the holIdays Counsel for the umon noted that the Crown IS exempt from the provIsIOns of the Employment Standards Act and, therefore, drew my attentIOn to Regulation 977 under the Public Service Act RS 0 1990 c.P 47 (as amended) 5 In sum, SInce the employer desIgnated the holIdays for Chnstmas, BOXIng and New Year's Days, accordIng to SectIOn 58(5) of the Regulation on the Monday Tuesday and Monday respectIvely and SInce the gnevors were normally scheduled to work on Mondays and Tuesdays, they should have been paid. They dId offer to work on those days, but the workplace was closed because of the holIdays The umon relIed on OPSEU (Derochie et al) and MinistlY of Community Family and Children s Services (2003) GSB 0628/01 (Hunter) The employer representatIve, PIerre PInet, agreed that ArtIcle 73 provIded part-tIme employees wIth holIday pay If they were regularly scheduled to work on the holIday He argued further that SInce the holIdays In questIOn fell on Saturday Sunday and Saturday respectIvely days for whIch the gnevors were not regularly scheduled, then they were not entItled to be paid for them. Mr PInet drew my attentIOn to ArtIcle 47 the provIsIOn In the collectIve agreement for full-tIme employees, whIch specIfically addresses the Issue of holIdays fallIng on a Saturday or Sunday SInce the comparable provIsIOn for part-tImers, ArtIcle 73 IS sIlent and ArtIcle 55 specIfically excludes the applIcatIOn of UN 13 4 to part-tImers, he argued that there IS a conflIct between the collectIve agreement and the Regulation Mr PInet argued further that If there was no provIsIOn In the collectIve agreement for holIday pay for part-tImers, then the Regulation would apply but as there IS, the collectIve agreement must prevaIl He provIded excerpts from, Brown and Beatty Canadian Labour Arbitration to support the pnncIples that the collectIve agreement language must have "clear expreSSIOn of IntentIOn " "to confer a financIal benefit" (at 42120) FInally he argued that to find that the gnevors are entItled to holIday pay here would be to In effect amend the collectIve agreement, whIch IS prohIbIted under ArtIcle 22 14 6 6 Mr Hanmgan argued In reply that there was no conflIct between the Regulation and ArtIcle 73 ArtIcle 73 was sIlent on the Issue of holIdays fallIng on a Saturday or Sunday Thus, he argued that the Regulation does apply SectIOn 29(3) of the Regulation provIdes that a conflIct between a regulatIOn and the collectIve agreement IS resolved In favour of the collectIve agreement. However there IS no conflIct between the Regulation and the collectIve agreement In hIS submIssIOn. FInally the language In ArtIcle 47 could not be applIed to part-tImers because otherwIse they would get all the holIdays paid and ArtIcle 73 makes It clear that they only get paid for a holIday If It falls on a day for whIch they are regularly scheduled. Thus the umon seeks holIday pay for Mr Savage for the Monday and Tuesday after Chnstmas and BOXIng Day and the Monday after New Year's Day The umon seeks holIday pay for Ms Lauzon for the Monday and Tuesday after Chnstmas and BOXIng Day DECISION ArtIcle 73 provIdes that part-tIme employees get paid for certaIn holIdays If they fall on a regularly scheduled workday 7 73 1 1 An employee shall be entItled to a paid holIday each year on each of the folloWIng days whIch fall on a day that IS a regularly scheduled work day for the employee New Year's Day Good Fnday Easter Monday Victona Day Canada Day CIVIC HolIday Labour Day ThanksgIvIng Day Remembrance Day Chnstmas Day BOXIng Day Any specIal holIday as proclaimed by the Governor General or the LIeutenant Governor 73 1.2 An employee shall be compensated for each of the holIdays to whIch he or she IS entItled under ArtIcle 73 1 1 The compensatIOn shall be eqUIvalent to that of hIS or her regularly scheduled workIng day but shall not exceed seven and one-quarter (7 1J4) or eIght (8) hours, as applIcable 732 When an employee works on a holIday lIsted In ArtIcle 73 1 1 In addItIOn to any compensatIOn to whIch he or she may be entItled under ArtIcle 73 1.2, the employee shall be paid at the rate of two (2) tImes the basIc hourly rate for all hours worked wIth a mImmum credIt of the number of hours In hIS or her regularly scheduled workIng day ThIS ArtIcle 73 2 does not apply to employees In classIficatIOns assIgned to Schedule 6 733 In addItIOn to any compensatIOn to whIch he or she may be entItled under ArtIcle 73 1.2, an employee In a classIficatIOn assIgned to Schedule 6 shall receIve eqUIvalent tIme off for work on a holIday lIsted In ArtIcle 73 1 1 ArtIcle 47 provIdes holIday pay for full-tIme employees 47 1 An employee shall be entItled to the folloWIng paid holIdays each year New Year's Day Good Fnday Easter Monday Victona Day Canada Day CIVIC HolIday Labour Day ThanksgIvIng Day Remembrance Day Chnstmas Day BOXIng Day Any specIal holIday as proclaimed by the Governor General or LIeutenant Governor 8 472 Except as provIded In ArtIcle 47 3 when a holIday specIfied In ArtIcle 47 1 falls on a Saturday or Sunday or when any two of them fall on a succeSSIve Saturday and Sunday the regular workIng day or days next folloWIng IS a holIday or are holIdays, as the case may be In lIeu thereof, but when such next folloWIng regular workIng day IS also a holIday the next regular workIng day thereafter IS In lIeu thereof a holIday 473 Those employees whose work schedules are subJect to rotatIng work weeks whIch Include scheduled weekend work on a regular or reCUrrIng basIs shall have the Canada Day Remembrance Day Chnstmas Day BOXIng Day and New Year's Day holIdays desIgnated as July 1st November 11th December 25th December 26th and January 1 st respectIvely and ArtIcle 47 2 shall have no applIcatIOn to these employees In respect of these holIdays The entItlement to holIday pay IS further delIneated In the provIsIOns of the umfied bargaInIng umt collectIve agreement at UN 13 Mr PInet drew my attentIOn to UN 13 4 whIch states UN 13 4 When a holIday Included under ArtIcle 47 (HolIdays) of the Central CollectIve Agreement cOIncIdes wIth an employee's scheduled day off and he or she does not work on that day the employee shall be entItled to receIve another day off ArtIcle 55 of the central agreement specIfies whIch artIcles of the collectIve agreement apply to regular part-tIme cIvIl servants ArtIcle 47 IS not on the lIst, nor IS UN 13 Mr PInet argues that because the language of ArtIcle 47 2 of mOVIng the holIday when It falls on a Saturday or Sunday IS not found In ArtIcle 73 It must have been the IntentIOn of the partIes not to gIve part-tImers holIday pay If one fell on a Saturday or Sunday Mr Hanmgan says ArtIcle 73 IS sIlent on the move, and so the Regulation applIes SectIOn 58 of Regulation 977 provIdes In part 58 (1) A full-tIme employee IS entItled to a holIday In each year on the folloWIng days 1 New Year's Day 2 Good Fnday 3 Easter Monday 9 4 Victona Day 5 Canada Day 6 CIVIC HolIday 7 Labour Day 8 ThanksgIvIng Day 9 Remembrance Day 10 Chnstmas Day 11 BOXIng Day 12 Any specIal holIday proclaimed by the Governor General or the LIeutenant Governor RRO 1990 Reg. 977 s 58(1) 58 (2) A part-tIme employee shall be entItled to a holIday each year on each of the days shown In subsectIOn (1) whIch fall on a regularly scheduled workIng day RRO 1990 Reg. 977 s 58 (2) 58 (5) When a holIday specIfied In subsectIOn (1) falls on a Saturday or Sunday or when any two of them fall on a succeSSIve Saturday and Sunday the regular workIng day or days next folloWIng IS a holIday or are holIdays, as the case may be, In lIeu thereof, but when such next folloWIng regular workIng day IS also a holIday the next regular workIng day thereafter IS In lIeu thereof a holIday RRO 1990 Reg. 977 s 58 (5) SectIOn 58(5) IS clear -If Chnstmas falls on a Saturday the holIday IS the next regular workIng day or Monday The BOXIng Day holIday would then fall on the Tuesday ThIS provIsIOn applIes to both full-tIme and part-tIme employees Therefore the regulatIOn reqUIres the holIdays fallIng on a Saturday/Sunday to be moved to the next regular work day for regular part-tIme employees The next Issue for me to decIde IS whether there IS a conflIct between ArtIcle 73 of the collectIve agreement and sectIOn 58(5) of the Regulation because It does not Incorporate the language of "movIng" the holIday as does ArtIcle 47 whIch pertaIns to the holIday pay for full-tIme employees The only case provIded to me was of lIttle assIstance The Derochie et al case stands for the proposItIOn that If a holIday falls on a regularly scheduled day off for a part-tIme employee, then 10 they are not entItled to a paid holIday It does not address the Issue of the effect of SectIOn 58(5) of Regulation 977 whIch does not appear was cIted to the Board, nor the Issue of the effect of "movIng" the holIdays ThIS may not have been an Issue In the case It IS not clear from the decIsIOn what the facts were In Derochie et al After the heanng I requested, the case cIted In Derochie et al but neIther of the partIes were able to provIde It. Without any case law to gUIde me, I must turn to first pnncIples of collectIve agreement InterpretatIOn. The excerpt from Brown and Beatty provIded by the employer on the obJect of construIng the collectIve agreement IS helpful It IS well-establIshed law that the obJect of InterpretIng the collectIve agreement IS to dIscover the IntentIOns of the partIes from the words of the provISIOn. In dOIng thIS arbItrators must presume that the partIes "Intended what they have said, and that the meamng of the collectIve agreement IS to be sought In ItS express provIsIOns" (Brown and Beatty 4 2100) When faced wIth two possIble InterpretatIOns arbItrators consIder several factors, IncludIng the purpose of the provIsIOn, the reasonableness of each InterpretatIOn, and whether the InterpretatIOn IS admInIstratIvely feasIble or would lead to anomalIes ApplYIng these pnncIples I have come to the conclusIOn that there IS no conflIct between SectIOn 58(5) of the Regulation and ArtIcle 47 of the collectIve agreement. I am not persuaded that sIlence In the collectIve agreement on the Issue of mOVIng the holIdays from a Saturday/Sunday to a Monday/Tuesday cancels the effect of the Regulation Had the partIes wIshed to do thIS they could have Included the language that contradIcted the Regulation They dId not. If there was a clear contradIctIOn between the two as umon counsel pOInted out, then the collectIve agreement would govern, and the Regulation would not apply However there IS no conflIct. Further I am not persuaded that because the language of the Regulation IS Included 11 In the collectIve agreement for full-tIme employees, but not for part-tImers, there was an IntentIOn to exclude thIS for part-tImers The holIdays that fell on a Saturday/Sunday were moved to Monday/ Tuesday makIng the latter the holIdays In realIty The facts of the case support thIS findIng the gnevors offered to work on Monday /Tuesday but could not SInce the workplace was closed for the holIdays Thus for the reasons noted above and havIng carefully revIewed the submIssIOns of the partIes, I am persuaded that the umon' s InterpretatIOn IS correct. Part-tIme employees are entItled to be paid for holIdays, whIch fall on a regular scheduled day and, In thIS case, the employer nghtly as reqUIred by the RegulatIOn, "moved" the holIdays to Monday Tuesday and Monday respectIvely ThIS result does not amend the collectIve agreement, whIch IS sIlent on the Issue It merely recogmzes what the employer IS oblIged to do under Regulation 977 of the Public Service Act The employer IS hereby ordered to compensate the gnevors for the lost holIday pay that IS three days for Mr Savage and two days for Ms Lauzon. I shall remaIn seIzed In the event that Issues anse on ImplementatIOn of thIS award Dated at Toronto thIS 15th day of August, 2005 i~ ~', .. .' ',~"..'-'-t:-~.. :'. '::..,-~I !i{<::~~_...~ '---:.~ ::.. ~ - ____0.',,,,:",.1.".:,, . --'" .- '-,- '" ' . .-. -. - '. ;.?... - ,. ;-,::-~;":,"j;:; ::-. '.; :~":- ~ - . ~ -" -. ' . ~-.... . ""\"'.. ,.' ...c,"'" .....- ,,', ",,,h,j,,';' ..~ ' .;.... .' ..~. 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