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HomeMy WebLinkAboutUnion et al 18-09-04IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour Relations Act, 1995, as amended, Re Grievances #2014-0475-0013 (Union); #2017-0475-0024 (Bechaalani); #2017-0475-0025 (Melesky); #2017-0475-0031(Coenraad); and #2018-0475-0030 (Belanger) BETWEEN: EASTERN ONTARIO REGIONAL LABORATORY ASSOCIATION (the "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, on behalf of its Local 475 (the "Union") AWARD Sole Arbitrator: Marilyn A. Nairn Hearing: June 21, 2018 Written representations received July 30, 2018 APPEARANCES For the Union: Lori Davis For the Employer: Vicky Satta 1. The parties convened an expedited process whereby they agreed that I would attempt to mediate outstanding grievances. In the absence of a resolution of those grievances, the parties further agreed that I had the jurisdiction to hear and determine the grievances, based on the material provided and submissions received. The parties also agreed that, while any decision may subsequently be relied upon, it need only provide brief reasons. 2. The first issue raised by the grievances is the appropriate call back payment when a part- time employee is called back to work on a holiday. It is the Union's position that the minimum four-hour call back should be paid at double time. The second issue involves the appropriate payment when a full-time employee is called back to work on a holiday. It is the Union's position that, in addition to call back pay and the day's pay for the holiday, the full-time employee is entitled to a paid lieu day off. It is the position of the Employer that in both cases the employees were paid appropriately and that further compensation of any kind would constitute prohibited pyramiding. The following circumstances provide the relevant factual context. 3. In the first scenario, a part-time employee was on stand-by for a shift that started the evening before the holiday and ended on the holiday. During that stand-by shift, the part-time employee was called back and worked 30 minutes on the holiday (12:15-12:45am). She received 4 hours pay at 1.5 times the regular rate of pay. The part-time employee also then worked a 7.5 hour evening shift on the holiday. She was paid 1.5 times the regular rate. No lieu day was given as the parties agree that it is captured by the percentage in lieu payment for part-time employees (pursuant to Article 19.02(b) of the collective agreement). Work on that evening shift was extended by 30 minutes. The part-time employee received double time for 30 minutes of overtime on the holiday pursuant to Article 19.03 of the collective agreement. She also received the applicable shift premiums for that shift and the extension. 4. In the second scenario, full time lab employees were assigned to be on standby for the holiday. The lab is closed on holidays but employees may be required to perform work in certain circumstances. Full time lab employees were called back and worked 1.5 hours on the holiday. They were paid 4 hours at 1.5 times the regular rate of pay for that call-back. They also received 7.5 hours of straight time pay for the holiday. In total they received 13.5 hours pay. 5. The relevant provision of the collective agreement provides: 18.08 No Pvramidina Premium payment (including both overtime and holiday premium payment) shall be calculated and paid under one provision of this Agreement only, even though hours worked may be premium payment hours under more than one provision. In such circumstances the highest premium will be applied. The provision of this clause will not negate any entitlement to shift premium, call-back, stand-by, or weekend premium. 6. The following authorities were reviewed: Brown & Beatty, Canadian Labour Arbitration, Chapters 8:2140 (pyramiding) and 8:3130 (Performing work on a holiday); United Steel, Local 2 2020 v Sudbury Neutrino Observatory Institute, 2017 CanLll 15841 (ON LA) (Nyman); Re Humber Memorial Hospital Association and COPE, Local 1080, (1982] O.L.A.A. No. 61 (Kennedy); South Bruce Grey Health Centre and ONA, 2008 CarswellOnt 10656 (Barton); Hotel Dieu Hospital and OPSEU, Local 474, 1994 CarswellOnt 6451 (Brault); Calgary Regional Health Authority v. United Nurses of Alberta, (2001) 100 L.A.C. (411) 1(Sims); and Quinte Healthcare Corp. and OPSEU, Local 480, 2004 CarswellOnt 10417 (Davie). 7. Article 18 of the collective agreement identifies certain premiums available under the collective agreement, including call back. Article 18.08 prohibits the pyramiding of premiums and expressly includes overtime and holiday pay premiums in that prohibition. While the language is arguably ambiguous, I am satisfied that, fundamentally, Article 18.08 directs that the highest premium is to be paid. 8. Applying that direction to the circumstances at hand, the part-time employee is not entitled to double time for the four hours of call back. The employee was called in and worked 30 minutes on a holiday. She was entitled to holiday pay at 1.5 times her regular rate for 30 minutes (.75 hours pay) (plus a night shift premium of $1.10 for 30 minutes), or, the minimum call back premium of four hours at 1.5 times her regular rate (6 hours pay). As among the premiums applicable to the time worked, the highest premium was applied. Also, in accordance with the last sentence of Article 18.08, her entitlement to call back was not negated. It prevailed. However, applying both the holiday pay premium and the call back premium would constitute prohibited pyramiding. There is therefore no entitlement for call back to be paid at double time in the circumstances. 9. The full-time employees worked 1.5 hours on the holiday. Under Article 19.02(a) of the collective agreement, they would be entitled to holiday pay for 1.5 hours at 1.5 times their regular rate (2.25 hours pay) plus a paid 7.5 hour lieu day for a total of 9.75 hours pay. They would not be entitled to 7.5 hours pay for the holiday, as they would receive the paid lieu day instead, in addition to receiving premium rates for hours worked on the holiday. These employees received holiday pay at their straight time rate (7.5 hours) and the minimum call back pay of four hours at 1.5 times their regular rate (6 hours pay) for the 1.5 hours they were required to work, for a total of 13.5 hours pay. They were paid the higher entitlement. The Union's position would require payment of an additional 7.5 hours, effectively paying the holiday pay twice. There is no such entitlement in the collective agreement. There is therefore no entitlement to a paid lieu day in the circumstances. 10. Having regard to the above, these grievances are hereby dismissed. Dated at Toronto, Ontario this 4th day of September, 2018. /I" a-A'C' a Marilyn A. wn, Arbitrator.