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HomeMy WebLinkAbout2008-0750.Mozzone.08-09-16 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-0750 Union# G-30-08-BO IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Amalgamated Transit Union - Local 1587 (Mozzone) Union - and - The Crown in Right of Ontario (Greater Toronto Transit Authority - GO Transit) Employer BEFOREDaniel Harris Vice-Chair FOR THE UNIONIan Fellows Green & Chercover Barristers and Solicitors FOR THE EMPLOYER Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors HEARING September 10, 2008. 2 Decision The Proceedings In this matter the union grieves that Mary Mozzone was not paid the correct premium for working the statutory holiday on March 21, 2008 (God Friday). It says that she should have been paid at a rate of one and three-quarters times her regular rate. For its part, the employer says it paid the correct rate, being one and one-half times her regular rate. The Facts There was no disagreement on the facts. The grievor worked four hours on the March 21, 2008 statutory holiday and was paid at the rate of one and one-half times her regular rate. She also received a day in lieu of the holiday. The grievor works in a payroll group, and, someone may be required to work the statutory holiday depending on when the statutory holiday falls in relation to the regular pay periods. In large measure the employees work it out amongst themselves who will work the day. The senior employees express a preference as to which holiday they will work. The employer can compel the junior employees to work the statutory holiday. That is, first the employer looks for volunteers, failing which it forces the junior employees to work. Once a senior employee agrees to work a statutory holiday they are required to do so. The issue between the parties is whether all work on a statutory holiday is ?overtime? under the collective agreement. The grievor?s evidence would be to the effect that the general usage in the workplace, amongst management, co-workers and the union, was that working on a statutory holiday was referred to as overtime. Also, in her view, she is treated like a bus driver. 3 Accordingly, supplementary procedure ?3.13 Holiday Selection Procedure? lays out how employees are selected to work a statutory holiday. It was also agreed that the employer separately tracks overtime hours and hours worked on a statutory holiday, as is reflected on the grievor?s pay slips. A copy of one such pay slip was entered into evidence. The two provisions of the collective agreement at issue here are articles 21 and 33, the relevant portions of which follow: ARTICLE 21 ? OVERTIME 21.1The overtime rate for purposes of this agreement shall be one and one-half times the employee?s basic hourly rate of pay. Where an employee is ?forced? to work overtime, he shall receive one and three- quarters times the employee?s basic hourly rate of pay. 21.2 (a) In this Article, ?overtime? means an authorized period of work calculated to the nearest quarter (1/4) hour, rounded up or down as the case may be and for regular full time employees shall be paid for all actual hours worked in excess of their regular scheduled shift per day, or in excess of forty (40) hours per week, or on the employees? scheduled day(s) off. (b)Overtime for each individual employee is limited to twenty (20) hours in any seven (7) day period Saturday to Friday inclusive. The twenty (20) hour weekly overtime limit applies to overtime hours actually worked in excess of the position?s normal weekly hours of work. Work on a statutory holiday is not counted in the twenty (20) hours unless such work is in excess of five (5) worked days in that pay week. ? 33.2In any of the paid holidays fall on a scheduled work day for an employee whose normal schedule includes two (2) scheduled off days, then the employee shall receive eight (8) hours pay at his regular rate of pay. 4 If any of the paid holidays fall on a scheduled work day for an employee whose normal schedule includes three (3) scheduled off days, then the employee shall receive ten (10) hours pay at his regular rate of pay. In addition, if an employee is required to work on a holiday (i.e., the employer recognizes the holiday on its calendar date), he/she will be paid at time and one ? half of his/her normal regular rate for all hours worked on that day. ? The Submissions of the Parties It is the union?s submission that work on a statutory holiday is, by definition, overtime work. Accordingly, if an employee is ?forced? to work on a statutory holiday, they are entitled to be paid one and three-quarters times their regular rate. The union said that overtime is defined in article 21, as set out above. It submitted that the article?s placement of a cap on overtime of twenty hours per week supports its position that hours worked on statutory holidays are over-time hours. Specifically, it relies on the second paragraph of 21.2(b) which provides that ?work on a statutory holiday is not counted in the twenty (20) hours unless such work is in excess of five (5) worked days in that pay week?. It was the union?s submission that such a saving provision is only necessary if all work on a statutory holiday would normally be regarded as overtime. If work on a statutory holiday is not overtime, it would never be counted in the twenty hour cap. However, without this saving provision, all work on a statutory holiday would count towards the cap. The union also submitted that there is no difference, from a policy perspective, between being forced to work overtime or to work a statutory holiday, and the same premium should apply in each case. Further, in the parlance of the workplace, working a statutory holiday is referred to as working overtime. Finally, nothing should be taken from the employer?s practice of showing 5 overtime hours and statutory holiday hours separately on the pay slips since it is necessary to do so in order to calculate the number of overtime hours applicable to the twenty hour cap. The employer says that the union is wrong in its view that the two provisions, articles 21 and 33 are not separate and distinct provisions. The employer says that there is no overlap in the articles. Further, the parties saw fit to provide a greater premium for ?forced? overtime but did not do so for ?required? work on a statutory holiday, which by the third paragraph in article 33.2 is paid at time and one-half. It submitted that both articles may have a coercive aspect, but only the overtime article provides an enhanced premium for such coercion. It would take express language to make the enhanced premium apply to statutory holidays, and there is no such express provision. The employer also submitted that overtime is defined as work in excess of 40 hours per week that is authorized by the employer. With respect to the second paragraph of article 21.2(b), it simply adverts to the possibility that work on a statutory holiday might be overtime if it is above and beyond the normal five days of work that pay week. It is not an acknowledgement that all work on a statutory holiday is overtime. The employer said that the provisions were clear and effect should be given to them. In reply, the union said that the common understanding in the workplace that to work a statutory holiday was to work overtime, explains why article 33 was not also amended to include the premium for ?forced? work. Because it is overtime, article 22.1 governs and it contains the ?forced? language. The union also submitted that the employer overstates the coercive nature of the word ?required? in the statutory holiday article. ?Required? was said to have been used to express the employer?s need rather than as an equivalent for being ?forced? to do something. 6 Finally, the union said that the employer?s submission regarding paragraph 2 of article 21.2(b) does not address the fact that if the employer?s interpretation is correct, that paragraph is redundant. If work on a statutory holiday is, by definition, not overtime, there is no need to exclude from the overtime cap such work if it falls on days one through five in that pay week. It only needs to be excluded if it is overtime. If it is not excluded then the cap would be reached prematurely. Reasons for Decision The issue, as framed, is whether hours worked on a statutory holiday are overtime hours. It is agreed that members of management, the union, the grievor and her co-workers refer to such hours worked as ?overtime?. However, when one considers the provisions of the collective agreement, it is article 33.2 that provides the general obligation upon the employer to pay a premium of one and one-half the regular rate to employees working a statutory holiday. It was the recent introduction of the enhanced premium of one and three-quarters the regular rate that causes the union to reach for article 21 to enforce payment of that overtime premium to the grievor for work that in the past would be paid a premium by virtue of article 33. While I appreciate that work on a statutory holiday is commonly referred to as overtime in this workplace, certainly, up until the amendments to article 21 regarding ?forced? work there would be no question but that the obligation to pay for the statutory holiday flowed from article 33.2. Now, with the changes to article 21 the union is, in essence, taking the position that all hours worked on a statutory holiday are overtime such that any hours of which they were ?forced? to work attract the enhanced premium. 7 To accept the union?s position would render the third paragraph of article 33.2 redundant, with uncertain consequences. These are two separate provisions in the collective agreement. Article 21 deals with payment for overtime and article 33 deals with payment for statutory holidays. The work in question in this matter was performed on a statutory holiday, and it is article 33 that provides for the payment of the premium. Article 33 does not provide an enhanced premium for ?forced? work. Article 21 does refer in paragraph 2 of article 21.2 to the role that work performed on a statutory holiday plays with respect to overtime. Paragraph 2 of article 21.2 is not rendered redundant because articles 21 and 33 are separate and distinct. Rather, it provides clarity regarding when such work on a statutory holiday is considered overtime for purposes of the overtime cap calculation. It is not until such hours exceed ?five (5) worked days in that pay week? that such work will become part of the cap calculation. I make no comment on whether or not such work becomes ?overtime? at that point and is amenable to the ?forced? work enhanced premium. That situation is not before me. Decision The four hours worked by the grievor on the statutory holiday of March 21, 2008 were not ?overtime? hours. Accordingly, they could not, and did not, attract the premium rate of one and three-quarters times the basic hourly rate for ?forced? overtime. th Dated at Toronto, this 16 day of September, 2008. Daniel Harris, Vice- Chair