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HomeMy WebLinkAbout2004-1877.Sajkiewicz et al.06-02-09 Decision Crown Employees Commission de Nj 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# 2004-1877 2004-1946 2004-1947 2004-2000 2004-2001 2004-2002,2004-2003 UNION# OLB480/04 OLB479/04 OLB482/04 OLB4 77/04 OLB478/04 OLB481/04 OLB483/04 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (SaJkIewIcz et al) Union - and - The Crown m RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION Larry Stemberg KoskIe Minsky LLP Barnsters and SOlICItorS FOR THE EMPLOYER AlIson Renton Counsel LIqUor Control Board of Ontano HEARING February 2, 2006 2 DeCISIon The Board IS seIzed wIth seven IndIVIdual gnevances filed by gnevors Jack SajkIeWICZ, Johannes Van HezwIck, Robert Heath, Kerman Katrak, Paul Dang, Doug LIverance and Donatu Ong, respectIvely SInce the Issue raised In all of the gnevances IS the same, they were heard together on consent. The case was argued on the basIs of an agreed statement of facts and documents filed on consent. The agreed statement of facts read as follows AGREED STATEMENT OF FACTS The Employer and the Umon (hereInafter "the partIes") agree to the folloWIng facts for the purposes of the heanng and wIthout prejUdICe or precedent to posItIOns taken or arguments made In thIS heanng, other gnevances and/or heanngs, IncludIng arguments about admIssIbIlIty of eVIdence The PartIes agree that addItIOnal InformatIOn may e presented at the heanng by viva voce eVIdence 1 The Gnevors are employed as eIther ShIft Leaders or Computer Operator Grade 2's and are based at the Employer's head Office at 55 Lake Shore Blvd. East, Toronto (hereInafter "Head Office Computer Operators") They are part of the Employer's IT DIvIsIOn and specIfically the ProductIOn ServIces department and they work In the computer room. A copy of theIr salary and classIficatIOn InformatIOn IS appended hereto as AppendIx "A" 2 The computer room operates twenty-four (24) hours a day and seven (7) days per week. However the Head Office Computer Operators' regular work week IS Monday through Fnday InclUSIVe, for 3625 hours per week. The Head Office Computer Operators work, on a rotatIOnal basIs, on the day afternoon or mght shIft. TheIr regular work week IS set out In ArtIcle 6 2(a)(vI) whIch IS appended hereto as AppendIx "B" 3 However because the computer room operates seven (7) days per week, there IS a reqUIrement for Head Office Computer Operators to work Saturdays and Sundays Because these are not theIr regular days of work, these days attract overtIme rates 4 The department has wntten gUIdelInes for SOlICItIng overtIme called Weekend Overtime Structure and Procedures (hereInafter "the overtIme gUIdelIne") A copy 3 of these gUIdelInes are appended hereto as AppendIx "C" The overtIme gUIdelIne does not set out the overtIme rates for work performed. 5 The rates for overtIme are set out In ArtIcle 6 whIch IS appended hereto as AppendIx "D" 6 The practIce In the computer room has been to pay tIme and half (Ph) the Head Office Computer Operators' regular hourly rate for hours worked on a Saturday and double tIme for hours worked on a Sunday If the employee also worked on the Saturday ThIS IS not In dIspute by the Umon. 7 The practIce In the computer room SInce the 1996-198 CollectIve Agreement came Into effect has been to pay tIme and a half (1I1z) for hours worked on a Sunday If the employee dId not work on the Saturday ImmedIately precedIng the Sunday yet volunteered to work on the Sunday ThIS IS the Issue beIng dIsputed by the Umon 8 The Durham RetaIl ServIce Centre, whIch IS part of the Employer's LOgIStICS DIvISIOn, and whIch IS located In WhItby also has a computer department that operates twenty-four (24) hours per day and seven (7) days per week. That department IS staffed by Vax System Operators and a copy of theIr salary and classIficatIOn InformatIOn IS appended hereto as AppendIx "E" 9 The V ax System Operator's regular work week IS 37 5 hours Monday to Fnday LIke the Head Office Computer Operators, they work through rotatIng day afternoon, or mght ShIftS TheIr regular work week IS set out In ArtIcle 6.2(a)(iI) and a copy IS appended hereto as appendIx "F" 10 SometIme pnor to the penod these gnevances were filed, the Head Office Computer Operators learned that the Vax System Operators receIve double tIme when they work on a Sunday even If It was not theIr second consecutIve day of overtIme It IS unclear to the length of that practIce at Durham. Because of thIS InfOrmatIOn, the Gnevors filed IndIVIdual gnevances, at Stage 2 Although the dates of the gnevances dIffer they were all filed In July 2004 and allege a vIOlatIOn of ArtIcle 6 6(a) and state employee is to receive double time lJ, hen the employee lJ,orks on second scheduled day off' and request as a remedy" TlJ,o times rate of pay for all overtime lJ, orked on second scheduled day off and all retro pay To be made lJ,hole in all respect The amount of retro pay has not been IdentIfied. CopIes of the gnevances are appended hereto as AppendIx "G" 11 In the 1991 CollectIve Agreement between the PartIes, ArtIcle 6 6( e) provIded Where an employee is required to lJ, ork on a Sunday provided the Sunday is not part of the employee s regular shift, the employee shall be paid at the rate of flj, ice the regular hourly rate of the employee 12 ArtIcle 6 6( e) was changed dunng the round of collectIve bargaInIng that resulted In the 1996-1998 CollectIve Agreement. The amended language became 4 Where an employee is required to lJ, ork on a Sunday provided the Sunday is not part of the employee s regular shift, the employee shall be paid at the rate of one and one half (112) the regular hourly rate of the employee 13 The 1996 language contInues to be In effect. 14 UntIl September 2003 one of the Head Office Computer Operators was Mehta Karmody who was on the Umon's Board of DIrectors and who was on the Umon's bargaInIng team that resulted In the 2002-2004 CollectIve Agreement. 15 The PartIes request that the Gnevance Settlement Board determIne what IS the appropnate payment reqUIred for the Head Office Computer Operators when they work overtIme on Sundays, but not when they work on the proceedIng Saturday (AppendIces omItted) The employer pays for Saturday and Sunday work as follows If an employee works on both days of a week-end, I e Saturday and Sunday he/she IS paid at one and one half tImes for the Saturday hours and at double tIme for the Sunday hours However If an employee only works on the Sunday the employer pays hIm/her only at one and one half tImes for the Sunday hours The gnevors claim payment at double tIme for Sunday hours even when they had not worked the precedIng Saturday At the centre of the dIspute are the folloWIng provIsIOns of the collectIve agreement. 6 6(a) Authonzed work performed In excess of the employee's normal work day shall be paid at the rate of one and one half (1Ilz) tImes the normal hourly rate of the employee unless otherwIse provIded In thIS Agreement. All work performed on any second consecutIve day of overtIme shall be paid at double the employee's normal rate of pay It IS understood that an employee IS to receIve double rates when the employee works on the employee's second scheduled day off 66(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 one and one half (1Ilz) the regular hourly rate of the employee 5 The umon relIes on artIcle 66(a) and specIfically the last sentence thereIn. SInce the gnevor's regular work week IS Monday to Fnday counsel pOInts out that Saturday and Sunday are theIr scheduled days off Saturday IS theIr first scheduled day off and Sunday IS theIr second scheduled day off ArtIcle 6 6(a) stIpulates that an employee IS to receIve double rates when the employee works on the employee's "second scheduled day off' SInce Sunday IS the second scheduled day off for the gnevors, counsel argues that artIcle 66(a) reqUIres payment of overtIme at double rates when they work on Sunday regardless of whether they had worked on the precedIng Saturday In further support of the gnevances, umon counsel relIed on the employer's practIce at ItS Durham RetaIl ServIce Centre Warehouse, (Paragraphs 8 9 10 of the agreed facts) where employees In sImIlar cIrcumstances have been paid at double rate for Sunday work, whether or not they had worked on the precedIng Saturday Umon counsel submItted that the management at the warehouse applIed the collectIve agreement correctly whIle the collectIve agreement was contravened by the employer wIth respect to these gnevors at ItS head office Counsel for the employer submItted that, on the facts of thIS case the governIng provIsIOn IS artIcle 6 6( e) It clearly and specIfically stIpulates that where an employee IS reqUIred to work on a Sunday day off, the applIcable rate IS lI1z tImes the regular rate In the 1991 collectIve agreement the rate prescnbed was "twIce the regular hourly rate" However startIng wIth the 1996-98 agreement the partIes explIcItly changed that to "one and one half the regular hourly rate" Counsel relIed on the long-standIng cannon of InterpretatIOn that a specIfic 6 provIsIOn prevaIls over a more general provISIOn. (Re CanadIan WestInghouse, (1955) 5 L.AC 2101 (Hanrahan) Umon counsel does not dIspute the cannon of InterpretatIOn relIed upon by the employer However he pOInts out that artIcle 66(a) specIfically deals wIth the rate payable where an employee works on hIS "second scheduled day off' Therefore, he argues, artIcle 6 6(a) IS the specIfic provIsIOn whIch should prevaIl over artIcle 6 6( e) I first turn to the "practIce eVIdence" relIed upon by the umon. It IS my VIew that the employer's practIce at ItS warehouse IS of no assIstance In InterpretIng the provIsIOns In questIOn. What the eVIdence dIscloses IS that the employer had one practIce at ItS Durham warehouse and a dIfferent practIce at ItS head office There IS no eVIdence of a consIstent practIce EVIdence of "mIxed practIces' does not shed any lIght on the partIes' IntentIOn sInce It falls to demonstrate any consensus between the partIes as to the relevant meamng of the provIsIOn In dIspute See Re Overlander Extended Care HosPItal, (2002) 105 L.AC (4th) 310 (GermaIne) In Re Gerrard, 2908/02 (DIssanayake) applIcatIOn for JudIcIal reVIew dIsmIssed Ont. DIV Ct. May 21 2004 I was faced wIth a sImIlar sItuatIOn as set out In the folloWIng passage at p5 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 IS applIcable to the facts here If artIcle 7 4 IS applIed, the gnevor IS entItled to double tIme only for the actual hours worked. If artIcle 76 IS applIed, on the other hand, he IS 7 entItled to hIS regular dally hours at double tIme The latter provIsIOn confers a greater benefit than the former At pp 5 -6 I reasoned In the face of thIS apparent contradIctIOn between two artIcles, one must look for an mterpretatIOn 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 workmg on a paid holIday represent a recogmtIOn of the mconvemence and sacnfice resultmg when an employee who otherwIse was entItled to take the day off, agrees to work. Extendmg that same ratIOnalIzatIOn, It makes very good lOgIC, that greater the mconvemence and sacnfice, greater the monetary reward should be On that reasomng, I prefer the employer's posItIOn. Where an employee who was not scheduled m advance to work on the holIday agrees to work on that day at short notIce the mconvemence and sacnfice would generally be greater The employee may for mstance have to cancel plans he or she had already made for the day He or she may have to make last mmute arrangements such as for chIld care In contrast, an employee who was scheduled m advance would have always planned to work on the holIday The mconvemence and sacnfice, If any would be less Thus, It IS logIcal that the partIes would mtend that the former employee be rewarded wIth a greater premIUm than the latter In dIsmIssmg the gnevance I concluded at p 7 The mterpretatIOn advocated by the employer resolves the mconsIstency between artIcles 7 4 and 7 6 on a reasonable and logIcal basIs On the other hand, the mterpretatIOn urged by the umon, m effect, renders artIcle 74 redundant. In the cIrcumstances, I prefer the former mterpretatIOn. SImIlar reasomng applIes m the present case The premIUm payment for overtIme work has two mam purposes First, It rewards the employee for the mconvemence and sacnfice he makes by workmg on what would have been hIS personal free tIme Second, It serves as a dIsmcentIve to the employer agamst engagmg employees to work on theIr days off As I stated m Re Gerrard (supra) the lOgIC of "greater the mconvemence and sacnfice, greater the monetary reward should be" makes very good sense 8 If the umon's InterpretatIOn IS accepted, that ratIOnale for overtIme premIUms falls apart. To Illustrate, assume 2 employees X and Y have Saturday and Sunday as scheduled days off X works on Saturday only and receIves pay at lI1z tImes Y works on Sunday only but gets paid at tWIce the rate Umon counsel, upon beIng questIOned by the Board, could not explaIn why Y's sacnfice by workIng on the Sunday should be worth any more than X's sacnfice by workIng on the Saturday SInce each had sacnficed one of theIr two scheduled days off It does not make sense that the partIes would Intend to bestow a greater reward on Y when the Inconvemence and sacnfice he suffers IS the same as that of X. AdoptIng the umon's InterpretatIOn would render artIcle 6 6( e) redundant. That IS a result that must be aVOIded If some other reasonable InterpretatIOn IS possIble In my VIew both provIsIOns, artIcles 6 6(a) and 6 6(e) are capable of beIng Interpreted and applIed In a reasonable and ratIOnal manner In my VIew where artIcle 6 6(a) refers to "when the employee works on the employee's second scheduled day off' It envIsages that the employee has already worked on a pnor day off The words were Intended to mean, "the second scheduled day off the employee has worked" The precedIng sentence In artIcle 6 6(a) stIpulates that double tIme IS payable where an employee works on any second consecutIve day That recogmzes that workIng overtIme on a second consecutIve day Involves greater Inconvemence and sacnfice, and therefore ments greater reward. SImIlarly the last sentence IS a recogmtIOn that where an employee works on two days 9 off, whether consecutIve or not, workIng on the second of those two IS more onerous In other words, workIng on any day off Involves Inconvemence and sacnfice Therefore, the employee IS rewarded wIth pay at lI1z tImes However where the employee works on an addItIOnal (second) day off, It reqUIres even greater Inconvemence and sacnfice Therefore the second of the two days off he works attracts a greater reward than the first day off he works That InterpretatIOn gIves efficacy to that provIsIOn, and also aVOIds rendenng artIcle 6 6( e) redundant. It follows from the foregoIng InterpretatIOn that where as In the present case, employees only work on the day off Sunday the governIng provIsIOn IS artIcle 6 6( e) It reqUIres payment at lI1z tImes for that work, and the employer has complIed wIth that reqUIrement. For those reasons, all of the gnevances are hereby dIsmIssed. Dated thIS 9th day of February 2006 at Toronto Ontano ~p . . ,.... , .. .. ...... . . . , ~ . . . -, ~ .. ,'.'," '",' '.., ,,"," .,~>..: ' " : '"' 't $1 Nirri I ' , , ,f :, ,..'oX.. ~ Vice-ChaI on