HomeMy WebLinkAboutUnion 18-11-12
IN THE MATTER OF AN ARBITRATION
Pursuant to the Labour Relations Act, S.O. 1995
BETWEEN:
DEEP RIVER AND DISTRICT HOSPITAL
(the “Employer”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
ON BEHALF OF ITS LOCAL 476
(the “Union”)
Re: Family Day Grievances
(Grievance Nos.: 2018-0476-0001 and 2018-0476-0002)
A W A R D
Paula Knopf - Arbitrator
APPEARANCES:
For the Employer: Paula Pettit, Counsel
Michelle Robertson, Human Resources
For the Union: Darryl Korell, Counsel
Ann Kelly, Local President
The hearing of this matter was held in Pembroke on October 29, 2018 .
1
These grievances arise out of the Union’s allegation that the Employer has violated the
Employment Standards Act, 2000, SO, C41, by “failing to recognize Family Day as a
statutory holiday”. The Employer defends the grievances primarily by asserting that the
holidays in the Collective Agreements provide a greater right or benefit than those
contained in the Employment Standards Act. The parties have agreed that I have
jurisdiction to resolve this matter.
To the credit of the parties and their counsel, this case was conducted on the basis of
the following Agreed Statement of Facts and their supporting documentation:
1. Deep River and District Hospital (the “Employer” or the “Hospital”) is an
integrated health services organization providing patient services in the North West
Renfrew County.
2. The Ontario Public Service Employees Union, Local 476 (the “Union”),
represents full-time and part-time clerical and support workers and full-time and part-
time paramedic/professional staff.
3. The clerical and support workers are covered under a collective agreement with
a term of October 1, 2011, to September 30, 2017.
4. The paramedic/professional staff are covered under a collective agreement with
a term of April 1, 2016 to March 31, 2019.
5. On March 13, 2018, the Union filed a grievance under each of the OPSEU Local
476 collective agreements alleging that the Employer violated the Employment
Standards Act, 2000 (the “ESA”), by “… failing to recognize Family Day as a statutory
holiday.”
6. The Union alleges that the collective agreements do not provide a greater right or
benefit within the meaning of the ESA with respect to public holidays and Family Day. It
is not alleged with respect to either grievance that the Employer has breached the
collective agreements.
7. The Union served notice to bargain the renewal of the paramedic/professional
staff collective agreement on February 16, 2016. The parties bargained on June 13 and
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14, 2017, and freely negotiated a renewal collective agreement. No proposals were
tabled by either party with respect to Article 15 – Holidays.
8. Article 15.01 of the paramedic/professional staff collective agreement recognizes
ten (10) holidays. It also recognizes two (2) additional float holidays for employees who
have completed their probationary period as of January 1st. The float holidays may be
taken at any time of year with prior written approval of the supervisor. Although the first
paragraph of Article 15.01 expressly provides that the ten (10) holidays are recognized
for “full-time employees”, the Employer’s long-standing practice has been to recognize
the ten (10) holidays and two (2) float holidays for both part-time and full-time
employees.
9. Articles 15.02 and 15.03 of the paramedic/professional staff collective agreement
provide, inter alia, that full-time and part-time employees required to work on a holiday
shall be paid at time and one-half (1½) their regular straight time rate of pay for the first
seven and one-half (7½) hours worked, and two (2) times their regular straight time rate
of pay for all hours worked in excess of seven and one-half (7½) hours on such holiday.
10. The Union served notice to bargain the renewal of the clerical and support
services collective agreement on September 1, 2017.
11. Article 18.01 of the current clerical and support services collective agreement
recognizes ten (10) holidays and two (2) float holidays per calendar year for both full-
time and part-time employees, who are on staff as of January 1 of each year. Full-time
and part-time employees qualify for these holidays under the terms of the ESA. The float
holidays must be scheduled by no later than October 31 and scheduled to be taken by
December 15 of that calendar year or they will be scheduled by the supervisor.
12. Article 18.02(b) and 18.02(c) of the clerical and support services collective
agreement provide, inter alia, that full-time employees required to work on a holiday shall
be paid at time and one-half (1½) their regular straight time rate of pay for the first seven
and one-half (7½) hours worked, and two (2) times their regular straight time rate of pay
for all hours worked in excess of seven and one-half (7½) hours on such holiday. Full-
time employees working extended tours who are required to work on a public holiday
receive time and one-half (1½) for 11.25 hours worked, and 2 times their rate for hours
worked in excess of 11.25 hours.
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13. Article 18.03 of the clerical and support services collective agreement provides
that part-time employees who work on a holiday shall receive time and one-half (1½)
their regular rate of pay for all hours worked on the holiday, and that the payment of
holiday pay will be in accordance with the provisions of the ESA.
14. The parties exchanged their proposed amendments to Article 18.01 on February
12, 2018.
15. The parties met to negotiate a renewal agreement on February 21-23, 2018, and
June 12, 2018.
16. The parties have been unable to resolve all issues in dispute for the clerical and
support services collective agreement and so the Union requested the appointment of a
conciliation officer. The conciliation meeting is scheduled for November 16, 2018.
17. On or about January 25, 2018, the Bargaining Unit President at the time, Ann
Kelly, raised an inquiry with OPSEU Staff Representative Sonia Boudreau about the
upcoming 2018 Family Day holiday and entitlements under the collective agreement.
18. On January 25, 2018, Ms. Kelly forwarded an email from Ms. Boudreau
regarding the subject matter in dispute to the Employer’s Human Resources Officer,
Michelle Robertson, the Employer’s President and Chief Executive Officer, Richard
Bedard, and the Employer’s Vice President of Operations & Chief Financial Officer,
William Willard. Ms. Robertson responded by email on January 31, 2018, at 12:57 PM.
19. On January 31, 2018, at 5:40 PM Ms. Boudreau emailed Ms. Robertson a link to
a government website regarding employment standards. Ms. Robertson responded by
email on February 1, 2018 at 8:28 a.m. The complete email chain between the parties
from January 25, 2018, onwards with respect to the subject matter in dispute [was filed
in evidence].
20. The parties were unable to informally resolve the March 13, 2018, grievances.
On June 19, 2018, the Union wrote a letter to Arbitrator Paula Knopf inviting her to hear
and adjudicate the grievances.
21. The parties later agreed to have the arbitration heard on October 29, 2018.
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The relevant provisions of the Employment Standards Act are as follows:
Definitions
1(1) in this Act,
“employment contract” includes a collective agreement;
“employment standard” means a requirement or prohibition under this Act that
applies to an employer for the benefit of an employee;
“public holiday” means any of the following:
1. New Year’s Day.
1.1 Family Day, being the third Monday in February.
2. Good Friday.
3. Victoria Day.
4. Canada Day.
5. Labour Day.
6. Thanksgiving Day.
7. Christmas Day.
8. December 26.
9. Any day prescribed as a public holiday;
“public holiday pay” means an employee’s entitlement with respect to a public
holiday as determined under subsection 24 (1)
No contracting out
5 (1) Subject to subsection (2), no employer or agent of an employer and no
employee or agent of an employee shall contract out of or waive an employment
standard and any such contracting out or waiver is void. 2000, c. 41, s. 5 (1)
Greater contractual or statutory right
(2) If one or more provisions in an employment contract or in another Act that
directly relate to the same subject matter as an employment standard provide a
greater benefit to an employee than the employment standard, the provision or
provisions in the contract or Act apply and the employment standard does no t
apply. 2000, c. 41, s. 5 (2)
Requirement to work on a public holiday: certain operations
28 (1) If an employee is employed in a hospital, a continuous operation, or a
hotel, motel, tourist resort, restaurant or tavern, the employer may require the
employee to work on a public holiday that is ordinarily a working day for the
employee and that is not a day on which the employee is on vacation, and if the
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employer does so, sections 26 and 27 do not apply to the em ployee. 2000, c. 41,
s. 28 (1)
Employee’s entitlement
(2) Subject to subsections (3) and (4), if an employer requires an employee to
work on a public holiday under subsection (1), the employer shall,
(a) pay to the employee wages at his or her regular rate for the hours worked on
the public holiday and substitute another day that would ordinarily be a working
day for the employee to take off work and for which he or she shall be paid public
holiday pay as if the substitute day were a public holiday; or
(b) pay to the employee public holiday pay for the day plus premium pay for each
hour worked on that day. 2000, c. 41, s. 28 (2)
Public holiday not ordinarily a working day
29 (1) If a public holiday falls on a day that would not ordinarily be a working day
for an employee or a day on which the employee is on vacation, the employer
shall substitute another day that would ordinarily be a working day for the
employee to take off work and for which he or she shall be paid public holiday
pay as if the substitute day were a public holiday. 2000, c. 41, s. 29 (1)
The relevant provisions of the Collective Agreement s are as follows:
CLERICAL AND SUPPORT SERVICES COLLECTIVE AGREEMENT
ARTICLE 18 - HOLIDAYS
18.01 For purposes of this Agreement, the following shall be recognized as
holidays:
New Year’s Day Civic Holiday
Good Friday Labour Day
Easter Monday Thanksgiving Day
Victoria Day Christmas Day
Canada Day Boxing Day
Full-time and regular part-time employees who are on staff as of January 1 of
each year shall be entitled to two (2) float holidays per calendar year. The float
holidays must be scheduled no later than October 31 and taken by December 15
of that calendar year or they will be scheduled by the supervisor .
18.02(d) In order to qualify for each holiday, the full-time employee must have
worked her full scheduled shift immediately preceding and following the holiday
unless her absence is due to legitimate illness confirmed my medical certificate
and such illness commenced during her current pay period. An employee
entitled to holiday pay shall not receive sick pay to which she may have
otherwise been entitled.
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18.02 (e) If a holiday falls during a full-time employee’s scheduled vacation
period, an additional day off with pay shall be scheduled by the Hospital at a
mutually agreeable time.
PARAMEDIC/PROFESSIONAL STAFF COLLECTIVE AGREEMENT
18.01 For purposes of this Agreement, the following shall be recognized as
holidays for full-time employees1:
New Year’s Day Civic Holiday
Good Friday Labour Day
Easter Monday Thanksgiving Day
Victoria Day Christmas Day
Canada Day Boxing Day
Two additional float holidays will be recognized for employees who have
completed their probationary period as of January 1st. The float holidays may be
taken at any time of the year with prior written approval of the supervisor.
An employee scheduled to be on call Christmas Day and Boxing Day shall no t be
scheduled on call o New Year’s Day and vice versa. Every reasonable effort
shall be made to provide a day off concurrent with the New Year’s holiday for the
Technologists scheduled on-call for Christmas Day and Boxing Day.
Both Collective Agreements prohibit an arbitrator from changing, altering, modifying,
adding to or amending their provisions. They also provide for payment for hours worked
on the recognized and floating “holidays” that are consistent with the Employment
Standards Act.
The Submissions of the Union
The Union asserts that the Employment Standards Act obligates an employer to
recognize and provide all the specified public holidays so that employees can enjoy the
right not to work on those exact days or be paid public holiday pay if they are required to
work. Acknowledging that the two Collective Agreements under consideration in this
case allow ten specified holidays and two “float holidays”, the Union argued that the
float days are not comparable to the public holidays. The Union pointed out that the
Clerical and Support Collective Agreement sets a time limit for the floats to be
scheduled and taken within the calendar year or, failing that, prescribes that they will be
scheduled by the supervisor. The Paramedic/Professional Collective Agreement
1 The parties acknowledged that the practice is to recognize this p rovision for regular part-time staff as
well.
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provides that the floats must be scheduled with prior written approval of the supervisor.
Because of this, the Union asserts that the limitations on the floats mean that they are
not comparable to the public holidays, resulting in the Collective Agreement not
providing greater rights or benefits than the ESA. As a result, the Union argued that the
members of these bargaining units should also be entitled to the benefit of Family Day
under the ESA. It was stressed that a denial of Family Day to these bargaining unit
members would mean that they have to sacrifice a public holiday because of the float
days gained during collective bargaining. The importance of being able to enjoy a
public holiday on the same day as other people in the community was said to be so
important that it creates a critical distinction between the holiday and the float days. In
support of these submissions, the Union relies on Waste Management of Canada
Corporation v. Big Bear Employees Association, 2014 CanLII 98977 (ON LA); Re
Queen’s University and Fraser et al., 1985 CanLII 2260 (ON SC); Decor Entry Systems
v. I.A.M. & A.W., 2000 CarswellOnt 4621, [2000] O.L.A.A. No. 713; Hylife Foods v.
U.F.C.W., Local 832, 2012 CarswellMan 318, 111 C.L.A.S. 338; Metropolitan Toronto
Zoo v. C.U.P.E., Local 1600, 2001 CarswellOnt 5963, [2001] O.L.A.A. No. 891; Sysco
Food Services of Ontario v. CAW -Canada, Local 414, 2002 CarswellOnt 5140, 111
L.A.C. (4th) 425.
Knowing that the Employer would raise an estoppel argument, the Union did not dispute
the fact that the claim for Family Day recognition had not been asserted until 2018.
However, the Union relied on s. 5(1) of the ESA to assert that the rights under the Act
and to Family Day cannot be waived. Therefore, it was emphasized that estoppel does
not apply to statutory rights. In support of this, the Union relied on Parry Sound
(District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 SCR
157, 2003 SCC 42 (CanLII); St. Ann’s Island Shooting And Fishing Club v. The King,
[1950] SCR 211, 1950 CanLII 28 (SCC); British Columbia Institute of Technology v.
B.C.G.E.U., 1997 CarswellBC 3203, [1997] B.C.C.A.A.A. No. 162; Compass Group
Canada (Beaver) Ltd. v. U.F.C.W., Local 175, 2008 CarswellOnt 7504, [2008] L.V.I.
3803-1.
8
The Submissions of the Employer
The Employer stressed that it is a small, full range hospital that enjoys a mature
bargaining relationship with this Union. The Employer pointed out that it has negotiated
several collective agreements with this Union since the introduction of Family Day in
2008 without the Union raising any claim that this particular holiday should be
recognized until the filing of these grievances in 2018. This was said to indicate
agreement by the parties to not recognize Family Day and/or that the Union waived the
right to claim for its recognition.
The Employer’s main defence is the assertion that the Collective Agreements provide its
employees with greater rights and benefits to holidays than are available in the ESA
because they also allow for Easter Monday and the Civic holiday, plus the two floats. It
was also stressed that the float provisions are contained in the clauses that deal with
“Holidays” and should therefore be recognized as falling within and being directly
related to the other listed “holidays”. The combination of the floats and the extra two
listed holidays were said to create better rights and benefits than are available under the
ESA. This position was said to be supported by the line of cases that dealt with this
same issue after the introduction of Family Day in 2008: Zehrs Markets v. U.F.C.W.
Local 1977, 2009 CarswellOnt 678; O.N.A. v. Erie St. Clair Community Care Access
Centre, 2008 CarswellOnt 7138; U.S. Steel Canada Inc. v. U.S.W., 2008 CarswellOnt
4097; Shepherd Village Inc. v. S.E.I.U., Local 1, 2008 CarswellOnt 10322; Atlantic
Packaging Products Ltd. v. C.E.P., Local 1894, 2009 CarswellOnt 6152; U.F.C.W.,
Local 175 v. Good Humor-Breyers, 2008 CarswellOnt 7797; Sterling Ford Sales
(Ottawa) Inc. v. CAW-Canada, Local 4270, 2008 CarswellOnt 8680; Maple Leaf
Consumer Foods v. U.F.C.W., Local 175, 2008 CarswellOnt 8679; Great Gulf Homes v.
L.I.U.N.A., Local 183, 2008 CarswellOnt 8971; Sun Parlour Emergency Services v.
S.E.I.U., Local 1, 2008 CarswellOnt 10641; Agropur Division Natrel v. Milk & Bread
Drivers, Dairy Employees, Caterers & Allied Employees, Local 647, 2008 CarswellOnt
5145; Friendly Manor Nursing Home v. U.F.C.W., Local 175, 2009 CarswellOnt 9232;
Asea Brown Boveri Inc. v. U.E., Re, 1990 CarswellOnt 4222; McKechnie Ambulance
Service Inc. v. O.P.S.E.U., Local 347, 1987 CarswellOnt 4114.
9
Stressing that the Union has asserted a breach of the Act and not the Collective
Agreement, it was suggested that a finding that the contract does not comply with the
Act should render the applicable contractual terms void and leave only the provisions of
the Act in their place. It was submitted that this would result in the elimination of the
float days and the two holidays not listed in the Act itself. Accordingly, the Employer
suggested that the better and proper result in this case should be a finding that that the
parties are bound by the words contained in their Collective Agreement, thereby
allowing for ten specified holidays, plus the two floats. It was a lso said that this result
would be consistent with the notion that the rights in the Collective Agreement outweigh
the rights under the Act.
The Decision
An initial reading of the Employment Standards Act would seem to prescribe that an
employer must recognize all its listed public holidays. However, statutory interpretation
and application is rarely that simple. Section 5(2) of the Act also dictates that when the
provisions in a collective agreement that “directly relate to the same subject matter as
an employment standard” offer a greater benefit to an employee than the Act’s minimum
standards, then the contract prevails. Therefore, the question of whether Family Day
must be recognized in these bargaining units requires a balancing of the rights under
the Collective Agreements and under the Act. That is why an adjudicator must bring out
what has been labeled the “metaphorical scale” to weigh the totality of provisions that
directly relate to the same subject matter. This “balancing” was prescribed in the case
of Queen’s University and Fraser et al., supra, wherein it was said:
A proper comparison . . . involves the placing in one pan of a metaphorical
scale the minimum standard set out in [the Act] and placing in the other pan
the totality of rights or benefits . . . provided for [the Collective Agreement.]
[emphasis added]
The issue of Family Day recognition has been litigated many times and has resulted in
what may appear to be two lines of authorities, but are actually based on the details in
10
the respective collective agreements. All the cases apply the “metaphorical scale” and
use the reasoning in Arbitrator Burkett’s decision in U.S. Steel Canada v. U.S.W., supra:
. . . . the legislature has described the relevant collective agreement provisions in
the plural and as those that directly relate, not to the employment standard itself,
but to the "same subject matter as the employment standard," thereby confirming
a broader basis for comparison than a single specific holiday. Accordingly, to
repeat, the scope of the balancing under the Employment Standards Act 2000 is
not limited to the specific public holiday, regardless of its purpose, but rather it is
as between the provisions of Part X, Public Holidays, of the Employment
Standards Act 2000 and the provisions of the collective agreement "that directly
relate to the same subject matter" as that employment standard.
26 It is to be observed that arbitrator Etherington in re: Tilbury Assembly
(supra), decided under the Employment Standards Act 2000, compared "the
overall scheme for holiday pay benefits under the collective agreement with ...
the provisions under Part X of the Act." He commented that:
There seems to be a general consensus among arbitrators that
in calculating greater benefit under section 5(2) of the
Employment Standards Act, they must do an objective global
comparison of the entire holiday pay scheme under the
agreement and the Act ....
[Emphasis added]
This illustrates that the statute and the case law demand that an arbitrator should
compare all the statutory public holiday provisions with all the provisions of a collective
agreement that “directly relate” to the same subject matter, that being the public holiday
provisions. In the cases cited by the Employer where a collective agreement’s holiday
pay provisions provided greater rights than the specified holidays in the Employment
Standards Act, employers were not held to be in breach of a contract if they did not
recognize Family Day when their contracts did not list Family Day as a holiday.
The case that best deals with a contract language very similar to this case and that
exemplifies the consideration of float days with public holidays is Atlantic Packaging
Products Ltd. v. C.E.P., supra. Arbitrator Herman concluded:
. . . .In my view, floating days that are not forfeited and that actually provide a
concrete benefit to employees ought to be considered along with public holidays
(or "paid" or "statutory" holidays, whichever label is used in a collective agreement)
11
when comparing the benefit of public holidays under a collective agreement with
the minimum employment standard concerning public holidays in the Act.
18 Effectively, the Collective Agreement provides for 10 paid days off, the eight
holidays listed . . . . and the two floating holidays . . . , while the Act provides for
nine public holidays. Even if compensation were assessed separately from time
off, as the Union maintains should be done, the paid days off for holidays under
the Collective Agreement are a greater benefit than the minimum standard under
the Act.
. . . . . .
20 In the result, I am satisfied that the paid holidays scheme provided under the
Collective Agreement is a greater benefit than the standard provided under the
Act. As Section 5 (2) of the Act stipulates, the employment standard accordingly
does not apply.
21 Since the Collective Agreement provisions do therefore apply, and since
Family Day is not a recognized paid holiday under the Collective Agreement, the
Employer was not required to have recognized Family Day or to have treated it as
a paid holiday. The Employer did not breach the Collective Agreement in any
respect through its failure to grant Family Day to employees.
In the cases cited by the Employer where a collective agreement provided a greater
holiday benefit than the statute, the contract prevailed over the statute. Therefore,
employers were not found in violation of their contracts if they failed to recognize Family
Day in cases where Family Day was not a specified holiday, where the contract
provided more of a benefit than the Act’s list of public holidays. Put another way, no
case law has been provided to me or is known to me that prescribes that an employer
must recognize Family Day if a greater benefit is contained in a collective agreement.
The cases where the metaphorical scale tips in favour of recognizing Family Day are
those where the holiday provisions, together with float days, do not directly relate to the
public holiday provisions or where the benefits could not be properly compared. Waste
Management of Canada Corporation v. Big Bear Employees Association, supra, did not
deal directly with Family Day, but it did have to compare contractual holiday provisions
with the Employment Standards Act ’s public holiday provision. The issue in that case
was whether employees could assert the right not to work on the public holidays listed
in the Act. Arbitrator Goodfellow provided the following analysis:
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Applying subsection 5(2) [of the Employment Standards Act] here, the first
question is what is the “employment standard”. Although the answer to that
question would appear to be self-evident, it may be useful to note that
“employment standard” is a defined term. It “means a requirement or prohibition
under this Act that applies to an employer for the benefit of an
employee”: subsection 1(1). In this case, that “requirement” would appear to be
nothing other than the obligation to provide employees with the nine specifically
named “public holidays” off with public holiday pay when they fall on employees’
ordinary working days.
The next question is what provisions of the collective agreement “directly relate to
the same subject matter as [the] employment standard”. In the Employer’s
submission, applying the Queen’s University approach, the answer would appear
to be any and all provisions related to “paid holidays”. . . . .
Assuming, but without deciding, that all of the factors identified above can be
thrown into the proverbial hopper, or into the two pans of the metaphorical scale, I
am of the view that the scales do not come close to tipping in favour of the
collective agreement. First, while it is certainly true that the agreement provides
three additional “paid holidays”, the days are not without limitation. Two of the days
are not available to all employees, can only be scheduled on mutual agreement
and are subject to forfeiture if not taken in the calendar year. [emphasis added]
Second, and much more importantly, however, is the central cost of the
Employer’s position: the loss of the employees’ right not to work on any and all of
the public holidays that fall on their ordinary working days. That, as I have noted, is
“the employment standard”. Thus, even if we are not dealing with a pure “apples
and oranges” comparison, as suggested in one case below, it is certainly a right or
benefit that will not be easily overcome. The right is to be able to enjoy New Year’s
Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day,
Thanksgiving Day, Christmas Day and Boxing Day, on the days on which they fall,
not on some other individually scheduled day or days. It is that feature t hat, in my
opinion, weighs most heavily in the balance, the loss of which is not compensated
for, let alone bettered, by the addition of three other holidays under the collective
agreement.
To the extent that it is necessary to do so, I draw support for this conclusion
from the existence of the express exceptions and from what would appear to be
the collective bargaining implications of the Employer’s position. As to the former,
the existence of the exceptions, especially the opportunity for agreeme nt, would
appear to support the need for clarity in any greater benefits finding. As to the
latter, if the Employer’s argument was to prevail, it would appear to mean that
anytime a Union was successful in negotiating a few (perhaps only one or two)
additional days off in the collective agreement, it may be found to have sacrificed
the statutory right of its members to enjoy any and all of the nine specific public
holidays off work on the days on which they fall. In my opinion, that would be an
extraordinary result that would not likely have been within the contemplation of the
legislation.
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It must be recognized that the members of the bargaining units in the case at hand will
not always be able to enjoy the public holidays on the actual days set out as holidays in
the Act. This case concerns a hospital where employees may be required to work on
days like Christmas or New Year’s, while the rest of the community (and/or their
families) may have the benefit of a day off, see s. 28(1) of the Act. Accordingly,
allowances are made for this, particularly under the Paramedic/Professional Staff
Collective Agreement, Article 15.01. Those who are required to work are allowed
substitutions and/or appropriate compensation. Because of this, the case law cautions
against simply comparing the number of holidays in a statute and the number in the
collective agreement, see Hylife Foods v. U.F.C.W., supra. This was also important in
the case of Metropolitan Toronto Zoo v. C.U.P.E., supra. In that case, Arbitrator Tacon
noted the difference between the floating days and the ones listed as holidays in the
parties’ contract:
35. . . . Floating days are found within a separate subsection from the listed
holidays in ss. (b). Of greater import, is the differing treatment of floa ting days.
Those days are not subject to qualifying conditions comparable to those affecting
the listed holidays. The floating days are "to be taken at a time convenient to both
parties". This condition is reinforced in the Letter of Intent, item (7), which refers to
a "time convenient to the employee and his/her Supervisor". Another crucial
distinction is the time-limited nature of floating days. For listed holidays, if the
employee qualifies for holiday pay, the entitlement is definitively established. In
contrast, employees who have not taken their floating days prior to the end of the
contract year will forfeit those days. An employee who is absent due to extended
illness has the floating days assigned on the last days of the contract year.
Moreover, no deduction will be made from the leave-for-illness allowance for the
days.
36 A further comment regarding floating days is warranted. Item (7) of the Letter
of Intent also dictates that the floating days consist of eight hours each, for a total
of sixteen hours. Since, as the union contends and I have agreed, those days fall
outside the umbrella of the public holiday entitlement in the E.S.A. 2000, the
restriction of the floating days to an entitlement of sixteen hours in total does not
raise an issue with respect to the interplay with the Act. In that regard, though,
where the floating days are assigned to the last days of the contract year because
of the absence of the employee due to extended illness, there will be no deduction
from the leave-for-illness allowance for those days, notwithstanding that the shifts
are 11.5 hours in length.
37 These distinctions between floating days and the listed holidays are sufficient
to differentiate between provisions in the collective agreement which "directly
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relate to the same subject matter as an employment standard", within the meaning
of the E.S.A. 2000 and those which do not. I am satisfied that the narrow focus of
s. 5(2) of the current Act excludes floating days in the collective agreement. Those
floating days are not reasonably regarded as "directly related" to the "same subject
matter" as the employment standard. The differences in the treatment, in the
collective agreement, between floating days and those listed in article 21.01(b),
ground my conclusion that the floating days do not "directly relate" to the "public
holidays" provided for in the employment standard. Only those holidays listed in
article 21.01(b) may reasonably be said to "directly relate" to that standard.
Further, the "subject matter" in the employment standard, namely, "public
holidays" is not the "same" as the floating days addressed in article 21.01(a) of the
collective agreement. [Emphasis added]
These last two citations illustrate that the Metropolitan Toronto Zoo v. C.U.P.E., supra,
and Waste Management of Canada Corporation v. Big Bear Employees Association,
supra, cases distinguished the float days from the statute’s holiday pay on the basis of
their contracts’ construction, as well as the differential treatment and conditions for the
taking of the float and the other listed holidays.
Both Collective Agreements before me recognize ten specified holidays and two floats.
The listed ten holidays amount to one more than the nine specified in the Employment
Standards Act. They recognize the Civic Holiday and Easter Monday, two days that are
not included in the Act. In addition, the contracts’ two float holidays are included in the
same clause that specifies the ten other days that are “recognized as holidays”. While
there are some limits on when or how they will be scheduled, neither Collective
Agreement stipulates that the floats will be lost if not taken. The full-time and part-time
Clerical and Support Services contract has conditions applicable to the listed holidays’
pay, such as having to work the full shift immediately before and after the shift s/he was
required to work, Article 18.02(b). If the holiday falls during a full-time employee’s
scheduled vacation, s/he is entitled to an additional day off with pay “scheduled by the
Hospital at a mutually agreed time”, Article 18.02(d). Float days also have some
conditions. They must be scheduled no later than October 31 and taken by December
15, or they will be scheduled by the supervisor. For the Paramedic/Professional
bargaining unit, the float holidays can be taken at any time of the year with prior
approval of the supervisor.
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Taking all these things into consideration and placing them on the “metaphorical scale”,
it must be concluded that these Collective Agreements provide a greater holiday benefit
to the bargaining units than the public holiday provisions of the Employment Standards
Act. The Collective Agreements provide three more holidays than the Act. The
Collective Agreements treat the floats, the public holidays, Easter Monday and the Civic
holiday under the same article and title. They are paid similarly. There is no significant
distinction between the way the public and the floating holidays are treated under these
contracts. Therefore, they must be considered as days that relate to the same subject-
matter as the public holidays in the Act. The distinctive nature of public holidays lose
their special status in this hospital setting where there is no right to not work, due to s.
28(1) of the Act. This leads to the conclusion that the paid holidays’ scheme provided
under the Collective Agreements is a greater benefit than the standard provided under
the Act. Section 5(2) of the Act then stipulates that the employment standard therefore
does not apply. This leaves the Collective Agreement provisions in place. Since Family
Day is not a recognized paid holiday under the Collective Agreements, the Employer
was not required to recognize Family Day or to have treated it as a paid holiday under
either the Act or the contract. Thus the Employer did not breach the Collective
Agreement or the Act because of its failure to grant Family Day to employees.
Before concluding, it should not be assumed that this result implies that the Union has
“sacrificed” the right to enjoy Family Day by achieving the two other specified holidays
and the two floats. Collective bargaining is a give and take process where gains are
achieved once priorities are set. These employees have achieved a significant benefit
by having access to a greater number of holiday scheduling opportunities. Further, it
should not be thought that the Union has waived or given up any rights in this
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workplace. Employment Standards cannot be waived, see s. 5(1) of the Act and the
established case law cited above by the Union on this point.
For all these reasons, the grievances must be dismissed.
Dated at Toronto this 12th day of November, 2018
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Paula Knopf - Arbitrator