HomeMy WebLinkAboutUnion 20-02-25
IN THE MATTER OF AN ARBITRATION
B e t w e e n:
RESOLVE COUNSELLING SERVICES CANADA
(the “Employer”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 489
(the “Union”)
and in the matter of a grievance concerning public holiday pay (2019-0489-0001).
Russell Goodfellow – Arbitrator
APPEARING FOR THE EMPLOYER:
Christopher Edwards, counsel
Kent Williams, counsel
APPEARING FOR THE UNION:
Gabriel Hoogers, counsel
Hearing by way of written submissions completed on December 13, 2019
AWARD
The Union grieves that the Employer is failing to pay part-time employees the amount of
public holiday pay required by the collective agreement.
The Union submits that part-time employees are entitled to a “full day of pay” for public
holidays, by which it means pay for the number of hours part-time employees usually work,
which is seven.
The Employer submits that the collective agreement is “silent” with respect to the amount of
public holiday pay and, therefore, it is entitled to apply the averaging or pro rata calculation
method set out in the Employment Standards Act (the "ESA").
The parties argued the case, in writing, on the basis of the following facts:
AGREED STATEMENT OF FACTS
Between
OPSEU, Local 489
(the "Union")
and
Resolve Counselling Services Canada
(the "Employer")
Grievance 2019-0489-0001
WHEREAS the parties wish to agree on certain facts which may be admitted
into evidence in the hearing of the above Grievance;
AND WHEREAS the parties agree that these facts are admitted only for the
purpose of the hearing of the above Grievance, and are not admitted for any
other purpose;
NOW THEREFORE the parties agree as follows:
General
1. The Union and Employer are parties to a Collective Agreement,
which is effective April 10, 2017 until March 31, 2020.
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2. The date of the ratification of the Collective Agreement was
January 25, 2018.
3. This is the first Collective Agreement between the parties, the
bargaining unit having been established in 2017.
4. The bargaining unit comprises 19 part-time employees and 18 full-
time employees.
5. Part-time employees are assigned regular shifts based on the days
of the work week (Monday to Friday). Though most regular shifts
constitute a regular working day (7 hours), some shifts are for
partial days.
Context of Grievance
6. During negotiations of the Collective Agreement, the Employer
proposed provisions with regard to statutory holiday benefits.
7. The Union countered the Employer's proposal on statutory
holidays. The Union's proposal was accepted and adopted into the
Collective Agreement.
8. Part time employees historically received a full day of pay for
statutory holidays prior to 2018. However, part time employees'
"time" was adjusted such that if an employee was a .6 FTE, they
would owe the employer "time". This was changed in 2018 and all
part time employees received a full day of pay without deduction.
The parties agree on this point, but disagree on the reason why
employees received a complete day's (7 hours) pay. The Employer
states that the change was made to achieve compliance with Bill
148 change (sic). The Union states that the change was made
because the collective agreement granted a greater right or benefit
to employees than the statutory calculation of holiday pay. During
2018, in some cases the employer retroactively provided the full
days' pay to part-time employees for statutory holidays.
9. All part-time employees continued to receive a full day of pay for
statutory holidays until Family Day, 2019, when the employer
applied the Bill 47 ESA calculation.
The Grievance
10. In December 2018, the Employer notified the Union that it would
be adjusting the manner of calculating statutory holiday pay for
part-time employees in December 2018. It stated that it would do
so pursuant to the method of calculation provided for in s. 24 of the
ESA.
11. On December 19, 2018, the Employer and Union met to discuss
the proposed change in calculation method.
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12. The Employer emailed all staff on February 25, 2019, stating that
the method of calculating statutory holiday pay for part-time
employees would be adjusted and done pursuant to the ESA
starting retroactively on Family Day (February 18, 2019).
13. The Union submitted a policy grievance (the "Grievance") on
February 25, 2019, stating, inter alia, that the Employer is in
violation of article 17 of the Collective Agreement.
14. The Employer initially denied the Grievance via email on
February 26, 2019.
15. The Employer decided, however, in retrospect to hold a grievance
meeting pursuant to articles 10.03 and 10.04 of the Collective
Agreement. The meeting was held on March 4, 2019.
16. On March 6, 2019, the Employer wrote to the Union to deny the
Grievance.
17. On March 13, 2019, the Union wrote to the Employer to advise
that it would refer the Grievance to arbitration.
18. Since Family Day 2019, part-time employees have continued to
receive statutory holiday pay pursuant to the ESA.
19. As it pertains to article 17.03, the Employer will providing (sic) a
subsequent full day off, with pay on a pro-rated basis pursuant to
the ESA.
(references to documents omitted)
The following are the relevant collective agreement provisions:
ARTICLE 17 - HOLIDAY PAYMENT
17.01 Full time and Part time Employees shall be entitled to the following list
of paid holidays:
New Year's Day Labour Day
Family Day Civic Holiday
Good Friday Thanksgiving Day
Easter Monday Christmas Day
Victoria Day Boxing Day
Canada Day
17.02 In addition to the holidays listed above, each full-time employee shall
be allowed two (2) paid holidays ("float" days) and one (1) paid
holiday ("float day") for Part-time employees. The employee will be
eligible to take the float day between the first day of the first pay
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commencing the payroll year and ending the last day of the last pay of
the same payroll year. The date and time for taking the float day shall
be mutually agreed upon by the employee and his/her supervisor
giving consideration to the department's workload and operational
requirements. In no event shall the float day be carried over into the
next payroll year.
17.03 If any of the above holidays fall or are observed during an employee's
vacation or on a scheduled day off, the employee shall receive another
day off with pay.
17.04 Employee's (sic) required to work on any of the above-mentioned
holidays shall be paid for all work performed at one and one-half (1
1/2) times the regular hourly rate for all normal hours of work on that
day and shall receive another day off with pay in lieu of the holiday to
be scheduled at a time mutually agreed between employee and the
Employer. Failing mutual agreement the employee shall be paid time
and one half for all hours worked that day.
A contract employee shall be entitled to 4% in lieu of paid holidays
and in addition one and one-half (1 1/2) times her rate of pay where
required to work on a holiday.
* * *
ARTICLE 3 - MANAGEMENT RIGHTS
3.01 The Union acknowledges that it is the exclusive function of the
Employer to manage and direct the employees in the workplace. This
right shall not be abridged except as specific restrictions are set forth in
this agreement.
...
3.03 The prerogatives and responsibilities set forth in this section, and/or
otherwise retained by management, shall be exercised fairly and
reasonably and in conformity with the other provisions of this
Agreement. The Employer also has the right to make, alter and
enforce, from time to time, reasonable rules and regulations to be
observed by the employees.
* * *
26.04 Part-time Entitlements
Credits and entitlements for Part-time employees unless otherwise
mentioned in this agreement shall be provided on a pro-rata basis.
(emphasis added)
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The following are the relevant provisions of the ESA:
24 (1) An employee’s public holiday pay for a given public holiday shall be
equal to,
(a) the total amount of regular wages earned and vacation pay payable to the
employee in the four work weeks before the work week in which the public
holiday occurred, divided by 20; or
(b) if some other manner of calculation is prescribed, the amount determined
using that manner of calculation.
* * *
5 (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 not apply.
The Union advances three arguments in support of its claim. First, it submits that a "plain and
ordinary meaning approach” to Article 17 requires the Employer to provide seven hours’ pay for
public holidays. The Union submits that this interpretation is supported by comparison to certain
other provisions of the agreement and the collective bargaining “context”. Second, in the
alternative, the Union submits that if the collective agreement is seen to be ambiguous, it would
be “latently” so and the same evidence of collective bargaining history or context would resolve
that ambiguity in its favour. Third, the Union submits that, "even if the [Employer's] policy is
compliant with the holiday pay provisions of the Collective Agreement, it is an unreasonable
exercise of management rights and must fail on that basis".
The evidence of bargaining history to which the Union refers as part of its first and second
arguments is found in paragraphs 6 and 7 of the agreed facts. It consists exclusively of the
proposals for what became Article 17.
The Employer proposed the following:
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ARTICLE 17 – HOLIDAYS
17.01 The following days shall be considered paid holidays without loss of
regularly scheduled earnings for Full-Time employees who qualify in
accordance with the Employment Standards Act, 2000.
New Year's Day
Family Day
Good Friday
Easter Monday
Victoria Day
Canada Day
Civic Holiday
Labour Day
Thanksgiving Day
Christmas Day
Boxing Day
Part-Time employees will receive a day off in lieu if the holiday does
not fall on a day that the employee would have worked based on the
number of hours the employee would have worked on that holiday.
17.02 An employee required by the Employer to work on any of the days
mentioned in Article 17.01 above, will receive premium pay in
accordance with the Employment Standards Act, 2000.
The Union countered with the proposal that became Article 17.
The Employer submits that the collective agreement contains no provision with respect to the
calculation or amount of public holiday pay and, therefore, it is entitled to apply the method set
out in the ESA. The Employer adds that a pro rata approach is also supported by Article 26.04.
The negotiating history evidence to which the Union refers, the Employer submits, is irrelevant
because it does not "logically lead to the conclusion that the Union’s proposed method of
calculating Holiday Pay must be accepted". Finally, the Employer submits that in the absence of
an express formula set out in the collective agreement there can be nothing “unreasonable” about
applying the ESA.
Both parties referred to case law.
Apart from cases dealing with principles of interpretation and the use of extrinsic evidence,
the Union referred to Heidehof Home for the Aged and Niagara Health Care and Service
Workers Union Local 302, 2002 CarswellOnt 9053, 68 C.L.A.S. 45 (Rose), Holloway Lodging
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Limited Partnership o/a Doubletree by Hilton and UFCW, Local 1006A, 2019 CanLII 23006
(ONLA) (Snow) and St. Mary's General Hospital v. London and District Service Workers Union,
Local 220, 1992 CarswellOnt 1191, 26 L.A.C. (4th) 189, 27 C.L.A.S. 26 (Stewart), concerning
holiday pay (Heidehof and Holloway) and qualifying for public holidays (St. Mary's).
The Employer referred to PL Foods Ltd. and CAW Local 1285, 2009 CarswellOnt 10248,
[2009] O.L.A.A.A. No. 345, 98 C.L.A.S. 217 (Trachuk), Dufferin-Peel Catholic District School
Board and OPSEU, Local 283, 2011 CarswellOnt 9743, [2011] O.L.A.A.A. No. 458, 108
C.L.A.S. 48 (Kaplan), and Service Corporation International (Canada) ULC Toronto Personal
Care Centre and SEIU, Local 1, 2015 CarswellOnt 3278, 122 C.L.A.S. 144 (Herman), all as
regards holiday pay.
I will review and address the effect of the case law first, because, according to the Employer,
the law is “settled” in its favour.
The Employer first refers to PL Foods Ltd., supra. In that case, the collective agreement
provided a list of paid holidays, like Article 17.01, and, like Article 17.03, stated that employees
were entitled to “a compensatory day off with pay” when a holiday fell during an employee’s
vacation or on a scheduled day off. The union claimed an entitlement to eight hours’ pay, eight
hours being the length of the “normal work day” under the collective agreement. The employer
argued that the agreement was silent with respect to the amount of pay and, therefore, it was
entitled to apply the ESA method of calculation.
Arbitrator Trachuk dismissed the Union’s grievance as follows:
17. The parties have agreed that there is no patent or latent ambiguity in
the collective agreement with respect to the calculation of holiday pay.
Nevertheless, they provided extrinsic evidence of bargaining history. The
extrinsic evidence did not disclose any ambiguity. The fact that both parties
interpret provisions of the collective agreement differently is common and is
not usually the result of an ambiguity. As there is no ambiguity, there is no
basis for resorting to extrinsic evidence as an aid to interpreting the collective
agreement. I am therefore left with the language that the parties negotiated.
18. Article 17 is the provision the parties negotiated with respect to
holidays. Article 17.01 sets out which holidays will be observed.
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Article 17.02 specifies what happens when a holiday falls on a weekend.
Articles 17.03 and 17.04 set out eligibility requirements for receipt of the
holiday. Article 17.05 sets out what happens when a holiday falls during an
employee's vacation or a scheduled day off. None of the articles sets out the
amount that an employee will be paid for a holiday for which she or he
qualifies. However, the union says that by negotiating an eight hour work day
in Article 22, the parties have agreed that employees will be paid for an eight
hour day on a holiday. It relies upon the reference to "days" in Article 17.01
and to "day" in Article 17.05.
19. The union is correct that the collective agreement must be interpreted
as a whole. However, the collective agreement contains no provision for the
calculation of holiday pay. Article 22.02 only sets out the hours of work an
employee can normally expect to work in a day and a week. It does not say
anything about the calculation of holiday pay. It does not define how the term
"day" is to be interpreted throughout the rest of the collective agreement. In
Article 17.01 "days" means the days during the year which will be recognized
as holidays. In Article 17.05 "day" means the days during the year which will
be recognized as holidays. In Article 17.05 "day" means a 24 hour period or a
shift. In Article 22.02 it means a day of the week. There is simply nothing
which suggests that Article 22.02 provides for the calculation of pay for the
holidays set out in Article 17.01.
20. However, the parties have specifically agreed about how holiday pay
is to be calculated for weekend employees. The union argues that, by
negotiating Article 17 of Appendix B, the parties must have intended the
same holiday pay for Monday to Friday employees. However, Article 17 of
Appendix B is more persuasively interpreted in the opposite way. Appendix B
sets out the terms and conditions of employment for weekend employees
which are different from the rest of the collective agreement. If that were not
the case, Appendix B would not be necessary. The inclusion of a specific
provision for holiday pay in Appendix B also demonstrates that the parties
knew how to provide for the calculation of holiday pay when they wanted to
do so.
21. The company argues that, as there is no provision in the collective
agreement specifying what employees are to be paid for holidays, it is entitled
to apply the provision of the ESA. The union claims that there is no place for
ESA provisions in a collective bargaining environment. It also contends that,
as it negotiated a greater benefit with respect to holidays, the ESA cannot
apply.
22. If a collective agreement is silent about a term or condition of
employment, the employer retains its management rights with respect to that
term or condition. Of course, if there is a legislated minimum standard with
respect to such a term or condition of employment, an employee must meet it.
However, the union argues it has greater holiday benefits in the collective
agreement so the ESA does not apply. It is doubtful whether that is the case
when a significant aspect of the public holiday legislation is not covered by
the collective agreement. However, if the union is correct, the employer still
retains the management right to set the holiday pay. If it has retained that
right, it has exercised it by employing the pro rata approach found in the ESA.
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Whichever way you look at it, in the absence of collective bargaining
language, the company is entitled to calculate holiday pay for Monday to
Friday employees in accordance with the provisions of the ESA.
23. For all of the above reasons I find that the company has not violated
the collective agreement with respect to its calculation of holiday pay. The
grievance is therefore denied.
(emphasis added)
While there is no contrasting provision establishing an approach to calculation for a different
category of employees in this agreement as there was in PL Foods, the Employer submits that
the collective agreement provisions in PL Foods are “highly analogous” to the present, with the
result that, absent a “collective agreement provision for the calculation of holiday pay”, it is
entitled to apply the ESA.
PL Foods was relied on in the second case to which the Employer refers: Dufferin-Peel
Catholic District School Board, supra. In that case the collective agreement contained a
provision that, like Article 17.01, listed paid holidays and there, as here, the dispute was about
the number of paid hours. The union’s position was that employees who were scheduled to work
but did not work were entitled to pay for the number of scheduled hours. The Union argued that
it was only if the employee was not scheduled that the ESA “averaging” method could be
applied. The employer applied the ESA in both instances.
Arbitrator Kaplan dismissed the Union’s grievance as follows:
7. Having carefully considered the evidence and arguments of the
parties, I am of the view that the employer's interpretation and implementation
of Article 20.01 is correct.
8. In T.C.F. of Canada Ltd. v. T.W.U.A., Local 1332 (1972), 1 L.A.C.
(2d) 382 (Ont. Arb.) Professor Adell makes the following observation:
Existing arbitral jurisprudence is predominately of the view that unless the
collective agreement indicates otherwise, holiday pay is not basically a means of
indemnifying employees against losing a day's wages through not being allowed
to work on the holiday. Rather, it is an additional form of payment for work
already done ... at 384.
9. Moreover, the authorities are settled that in the absence of a
collective agreement provision providing otherwise, the employer is entitled to
calculate holiday pay as provided for in the Employment Standards Act 2000.
10
As Arbitrator Trachuk noted: "If a collective agreement is silent about a term
or condition of employment, the employer retains its management rights with
respect to that term or condition ... [and] ... the company is entitled to
calculate holiday pay...in accordance with the provisions of the ESA." See
CAW & PL Foods Ltd. unreported decision dated July 2, 2009 at 6.
10. In this case, the collective agreement is silent about the method of
calculation. The method chosen by the employer is the one set out in the
Employment Standards Act 2000. It was within management's rights to choose
this method, a choice that also has the virtue of being consistent. The
proposed method advanced by the union is not provided for in the collective
agreement and is internally inconsistent. Accordingly, for all of these reasons,
and in light of the governing authorities, the grievances are dismissed.
(emphasis added)
The third decision relied on by the Employer is Service Corporation International (Canada)
ULC Toronto Personal Care Centre, supra. In that case the issue was whether employees were
entitled to any pay for a particular holiday, the Civic Holiday in 2013, when they were locked-
out. The collective agreement provided a list of “paid holidays”, like Article 17.01, and dealt
separately with when an employee works on the day, like Article 17.04, and when the day falls
during an employee’s scheduled vacation, like Article 17.03. In the former instance, employees
were entitled to premium pay for all hours worked and, as under Article 17.03, “an additional
day’s pay”. In the latter instance, the employee’s vacation could be extended by a day or a day
could be added to the employee’s “remaining vacation accrual”.
The union argued that employees were entitled to pay for “whatever their ‘regularly
scheduled day’ would be”, on the basis, inter alia, that paid holidays are an “earned benefit”. The
employer argued, amongst other things, that the agreement was silent with respect to the
calculation of public holiday pay and, therefore, the ESA averaging method applied. Arbitrator
Herman dismissed the grievance. The Employer refers to the following portion of his award:
10. Article 26.01 recognizes specified days as paid holidays, one of which
is the Civic Holiday, but it does not set out any method or basis for
calculating the amount of money owed for any of the listed holidays. In
contrast, Article 26.02 does address how to calculate payment for a holiday,
but on its face only applies to situations when an employee works on one of
the recognized paid holidays, reflective of the fact that the parties put explicit
language in the Collective Agreement where they intended to set out the
appropriate method of payment with respect to the recognized holidays. In
this context, the mere listing of days as "paid holidays" in Article 26.01
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cannot be read as expressing an agreement on the basis for payment when
employees do not work on the specific holiday. Article 26.03 deals with the
situation when a paid holiday falls within an employee's scheduled vacation.
None of these provisions, or any other Article of the Collective Agreement,
addresses the method or basis of calculation of payment for employees who
do not work on a paid holiday.
...
12. Since the Collective Agreement is silent on this issue, the provisions
of the Act apply to determine the method of payment for holidays, and even if
they did not, in the exercise of its management rights the Employer was
entitled to apply the relevant provisions of the Act as a basis for calculating
the amount, if any, owing for the Civic Holiday, see, for example, Dufferin-
Peel Catholic District School Board v. O.P.S.E.U., Local 283, Stock
Transportation Ltd. v. Teamsters, Local 938; and PL Foods Ltd. and CAW-
Canada, Local 1285 (Holiday Pay), Re (cited above).
...
14. The Union argues that the Collective Agreement provides a greater
right or benefit than does the Act, and that the provisions of the Collective
Agreement therefore prevail. However, since the Collective Agreement does
not provide any basis for calculating a paid holiday for employees who do not
work on the holiday (and are not scheduled for vacation on that day) but the
Act does provide a requirement for paying employees who do not work on
holidays, it cannot be said that the Collective Agreement provides for a
greater right or benefit.
(emphasis added)
In coming to this conclusion, Arbitrator Herman also found nothing inconsistent with the
“earned benefit” nature of paid holidays, observing that “the Act provides guidance as to the
legislative view of when or how an employee earns entitlement to be paid for a public holiday”
and “attempts to define parameters for measuring the amount of holiday pay that has been earned
by an employee”.
Of the cases relied on by the Employer, the Union responded to Dufferin-Peel, which, as
quoted above, pronounced the “authorities settled that in the absence of a collective agreement
provision providing otherwise, the employer is entitled to calculate holiday pay as provided for
in the Employment Standards Act 2000”. The Union submits that Dufferin-Peel is distinguishable
on the basis that the collective agreement only contained a provision that, “at best [may] be
likened to article 17.01 of the [present] collective agreement insofar as it provides for ‘paid
holidays”’. The Union submitted that, “Mr. Kaplan was not asked to interpret a provision like
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17.03, which provides for ‘another day off with pay’, which the Union describes as the “clearest
possible statement regarding the quantum of holiday pay in the Collective Agreement”. The
Union adds that the fact that “the quantum of holiday pay required by the Collective Agreement
is straightforward and requires no detailed explanation or formula … does not mean the
Collective Agreement is ‘silent’”.
For its part, the Union referred to Heidehof Home for the Aged, supra, a decision that
preceded all three awards relied on by the Employer but that was referred to in none of them.
The issue in Heidehof was whether the employer could alter a long-standing practice of paying
full-time and part-time employees holiday pay based, in the case of scheduled work days not
worked, on the number of scheduled hours and, in the case of non-scheduled days, on the basis
of the employee’s normally scheduled hours. In both situations the employer had begun to apply
the pro rata method newly introduced into the ESA. Arbitrator Rose accepted the union’s
argument that the employer was estopped, based on its past-practice, from doing so until the
expiry of the existing agreement.
The Union cites the following portion of the Heidehof award:
16. The most that can be said is that the ESA was the genesis for
calculating holiday pay. This is reflected in the first collective agreement.
However, the 1987-1989 collective agreement removed the reference to the
ESA from the holiday pay provision. While the method of calculating holiday
pay did not change, it must be inferred that the parties removed the reference
to the law for a reason. Although the actual reason for doing so was not
disclosed in evidence, the change cannot be ignored. Some meaning has to be
attached to the change. Otherwise one would be required to view the change as
a distinction without a difference. What the employer seems to be arguing is
the 1987-89 collective agreement (and subsequent agreements, including the
current one) provide the holiday pay benefit found in the ESA. Unfortunately,
that is not what Art 15.01 says. For Art. 15.01 to be given the meaning the
employer attributes to it, there would have to be a clear expression of the
parties' intent to be bound by the Act. For example, the collective agreement
might state that holiday pay shall be based on or calculated in accordance
with the ESA.
(emphasis added)
Article 15.01 of the Heidehof collective agreement, the Union notes, was the basic holiday
provision, similar to Article 17.01. The Union also notes that the Heidehof agreement contained
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a clause that, like Article 17.04, gave employees who were required to work on a holiday “a day
off with pay”. The critical aspect of the Heidehof reasoning, however, from the Union’s point of
view, is the statement that in order for the ESA calculation method to apply the collective
agreement would have needed to say so.
In further support of this last mentioned proposition, the Union referred to Holloway, supra.
In that case Arbitrator Snow framed the issue as: “Is holiday pay the same as the pay for a
normal work day or is holiday pay calculated based on the average hours of work during recent
weeks” (the employer having, for many years, applied one or more such averaging methods that
were not necessarily the same as the ESA method). Arbitrator Snow found the former. The Union
highlights the following portion of his reasons, dealing with full-time employees:
In large part the Employer relied upon the approach set out in the Employment
Standards Act. The Act provides that holiday pay is the total regular wages in
the last pay period divided by the number of days worked, or is as calculated
in the manner prescribed by regulation (Act, section 24(1)). The current
Regulation prescribes holiday pay as the total regular wages and vacation pay
earned in the last four weeks divided by 20 (Ontario Regulation 375/18).
I would note that I see nothing in the Article 16 holiday pay language
suggesting that the parties intended to incorporate any Employment Standards
Act provisions, or incorporate an averaging approach, in the calculation of
holiday pay. I will nevertheless examine this submission fully.
First, there was no evidence as to when this collective agreement language
was negotiated. There was no evidence as to what holiday pay provisions
were included in the Employment Standards Act when this collective
agreement language was negotiated. I see nothing in the wording of Article 16
to support the idea that the parties intended to import the approach to holiday
pay then in the Employment Standards Act.
Secondly, if the parties intended to adopt the approach used from time to time
in the Employment Standards Act, as distinct from intending more generally
an averaging formula because the Act uses an averaging formula, this
intention is not conveyed by the language of this collective agreement.
Article 16 of the Holloway agreement, to which Arbitrator Snow referred, stated, “Holiday
pay shall be computed on the basis of the number of hours the employee would otherwise have
worked had there been no holiday and paid at their regular straight time hourly rate”. Arbitrator
Snow concluded this meant employees’ “normal hours of work”, interpreted in accordance with
the “normal work day” clause of the collective agreement, which referred to eight hours. The
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same result was reached for part-time employees on the basis of a clause that provided an
entitlement to holiday pay “calculated in accordance with Section 5 of this Schedule C”, which
referred to the employees’ “regular pay for such holiday(s)”.
Finally, the Union referred to St. Mary's General Hospital, supra, a case that dealt with
qualifying for paid holidays. In concluding that the ESA qualifying criteria did not apply,
Arbitrator Stewart relied, in part, on the absence of any express reference to the ESA in the
relevant collective agreement provision, in contrast to such references elsewhere in the
agreement. In the present agreement, the Union notes, the ESA is referred to in the
“Pregnancy/Parental/Adoption Leave” article, the “Family Medical Leave” provision, and the
“Benefits Continuation” article.
Like the Union, the Employer responded directly to only one of the Union’s cases: Heidehof.
The Employer submits that the award is properly distinguished on the basis of the “employer’s
long-standing formula for calculating holiday pay over the course of an established collective
bargaining relationship”, the collective agreement language, and the fact that the award was not
cited in any of the three later cases to which the Employer referred.
What does the case law tell us? Is it “settled” in the Employer’s favour, as the Employer
submits, or does it support the conclusion that the references to “paid holidays” (Article 17.01)
and “another day off with pay” (Articles 17.03 and 17.04), with no reference to the ESA, means,
as the Union submits, that part-time employees are entitled to a “full” seven hours pay for public
holidays.
I begin by noting that there appears to be no dispute that, subject to the Union’s third
argument identified above, if the collective agreement were “silent” with respect to the “quantum
of pay”, as the parties put it, the Employer would be entitled to apply the ESA method; that is, I
do not understand the Union to assert that Heidehof, Holloway or St. Mary’s stand for the
proposition that in order for the ESA to apply it must always be referred to in a collective
agreement.
15
That, of course, would be an incorrect proposition of law: see PL Foods, supra. The
employment standards set out in the ESA apply unless a collective agreement provision or
provisions that directly relate to the same subject matter create a “greater benefit”: subsection
5(2) of the ESA. They do not need to be expressly “incorporated” or “referred to” in a collective
agreement in order to apply. The Union’s point appears to be that the absence of any reference to
the ESA in Article 17, as contrasted with such references elsewhere, is a factor to be taken into
account in deciding whether the parties’ intended Article 17 to create a “greater benefit”. The
Union submits that such intention is clear, either on the “plain and ordinary meaning” of the
words used or when Article 17 is considered in “context”.
On my review, the case law provides strong support for the Employers’ position. The clear
cumulative effect of the reasoning and results in PL Foods, Dufferin-Peel and Service
Corporation is that an employer is entitled to apply the ESA method for calculating public
holiday pay, or the ESA method simply applies, unless the collective agreement establishes a
different method and provisions such as Article 17 do not, on their face, do that.
The cases referred to by the Union do not establish otherwise. Heidehof, the principal award
relied on by the Union, is an estoppel case, which, by definition, means the employer was not
restricted by the terms of the agreement from applying the ESA method; the Holloway case
turned on the existence of two provisions that are notable by their absence here; and St. Mary’s
was a qualifying days case.
The Union submits, however, that its interpretation of Article 17 is supported by “context”.
The context to which the Union refers consists of a comparison to certain other provisions of the
agreement and collective bargaining history. The latter is also relied on, in the alternative, to
resolve any possible latent ambiguity.
The nub of the Union’s collective agreement context argument is that the ESA is referred to
in other provisions of the agreement but not in Article 17. The Union submits that reveals an
intention not to be bound by the ESA method for determining the amount of public holiday pay.
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The same intention may be inferred, the Union submits, from the collective bargaining
context, consisting of the parties’ competing proposals for what became Article 17. The Union
points out that the Employer’s proposal included references to the ESA while the Union’s did not
and the Union’s was adopted. More specifically, the Union submits, the Employer’s proposal
sought to distinguish between full-time and part-time employees, “both in terms of qualification
for the statutory holiday pay as well as the computation of holiday pay for part-time employees”
(emphasis added). The Union submits that its’ “proposal rejected the Employer’s effort to
include a different method of computation of holiday pay for part-time employees”.
Addressing the Union’s collective agreement context argument first, I regret that I am unable
to find in the existence of the other references to the ESA in the collective agreement an intention
to exceed or exclude its application here. It is not at all uncommon for parties to refer to the ESA
as shorthand for specifying the rights that will apply, and that are not exceeded, without meaning
to imply that any and all other matters dealt with in the ESA are exceeded. The onus remains on
the Union to establish a benefit that exceeds the ESA in respect of public holiday pay and the
other references do not do that. They do not convey an intention to provide a greater amount of
public holiday pay than is required by the ESA in any or all possible circumstances.
As for the collective bargaining context evidence, the Employer’s sparse “Holidays”
proposal does, indeed, appear to have been intended to address the pay question differently, at
least to some extent, for full-time and part-time employees. The first sentence of the Employer’s
proposed Article 17.01 listed paid holidays for both categories of employees, while adding that
full time employees will not have their “regularly scheduled” earnings reduced when the holiday
falls on a working day not worked. This would appear to imply that such protection would not
apply to part-time employees. The second sentence of the proposed Article 17.01, which referred
only to part-time employees, addressed what was to happen when the holiday fell on a non-
working day. In that case, the part-time employee would have been entitled to “receive a day off
in lieu … based on the number of hours the employee would have worked on that holiday”. The
proposal for Article 17.02 then described the pay entitlement for the holiday itself for both
categories of employees who work on the holiday.
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In my view, a bare comparison between the terms of the Employer’s rejected proposal and
Article 17 does not lead to the conclusion that Article 17 was intended to require the Employer to
pay part-time employees seven hours’ pay for public holidays. The proposals are quite different,
including in the addition of “float days” in what became Article 17. I agree with the Employer
that the mere exchange of proposals, without any accompanying evidence as to what was meant
by the accepted proposal, especially in the context of a provision with as many elements and
potential for “trade-offs” as this, does not assist in the interpretation of the Article. The case law
refers to the need for a provision that establishes a “method of calculating” public holiday pay.
Paragraph 24(1)(b) of the ESA refers to a “manner of calculation”. While I am certainly of the
view that no particular formulation of words is required, the mere exchange of proposals does
not support the Union’s position; it does not establish a shared intention, as the Union submits.
To be clear, there are tried and true paths to the result the Union seeks. The most basic and
familiar is to refer to pay for the number of hours in a “normal” or “regular” workday. Slightly
more specific is a commitment to pay for the “number of hours the employee was scheduled” or
“would otherwise have been scheduled”, depending upon the circumstance addressed. Both
formulations expressly link the amount of pay, or the number of paid hours, to something: to an
employee’s normal or regular hours of work or to an employee’s scheduled hours of work
(which, of course, are not necessarily the same).
Article 17 does neither. Very much like the collective agreements in the cases referred to by
the Employer, it simply sets out an entitlement to “paid holidays” or a “day off with pay”, saying
nothing at all about how much pay, pay for how many hours, or pay for what kind of day. In my
view, the need for such language is also indicated here by the agreed fact that, “[t]hough most
regular shifts constitute a regular working day (7 hours), some shifts are for partial days” (my
emphasis). This kind of variation is one of the reasons why the ESA method exists and why at
least some degree of collective agreement specificity is called for.
The Union’s alternative argument is that if Article 17 is seen to be ambiguous, it would be
“latently” so and the same evidence of bargaining history would clarify any such ambiguity in its
favour. In my view, there is no ambiguity, latent or patent; there is simply “silence”. Not dealing
with a matter that must be dealt with in order to create a greater benefit does not amount to an
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ambiguous right or benefit. Even if it did, however, for the reasons given, I would be unable to
find the bare fact of the Employer’s rejected proposal and the Union’s accepted one clarifies any
such ambiguity in the Union’s favour.
This brings me to the Union’s “unreasonableness” and, even, “absurdity” argument. The
submission is that on the ESA approach these part-time employees will be worse off, in terms of
pay, in a week in which a statutory holiday falls than in a regular workweek. (The same would be
true, the Union submits, in a week in which any substitute day would be taken.) The Union
submits this is unreasonable, if not also absurd, and could not possibly have been intended. In the
alternative, the Union submits, applying the ESA averaging method constitutes a breach of
management rights because it “unreasonably deprives employees of their regular wages during
holidays”. The Union elaborates:
32. … By way of example, a part-time employee who would have been
scheduled to work on a statutory holiday is instead given the day off, and
compensated pro-rated wages for that day. However, that part-time
employee (as with most part-time employees within this bargaining unit)
is usually scheduled to work a full day shift, and in fact would have
worked a full day shift but for the statutory holiday. If that employee
usually works two full day shifts per week, on the week that the statutory
holiday falls, that employee will only receive 1.4 days’ worth of wages
rather than 2.
33. The same reduction in average wages occurs for any part-time worker
who normally works regular shifts, regardless of whether their shift falls
on a statutory holiday or not (pursuant to the operation of 17.03).
34. The corollary thereof is that it is the Employer that reaps a financial
benefit during statutory holidays. Its overall wage burden is diminished
during those weeks. That result is illogical, unreasonable, and/or absurd,
given that statutory holidays are in theory an employee benefit.
35. This result is particularly unreasonable, absurd, and/or illogical at this
bargaining unit, where the parties have sought equal treatment in the
wording of article 17 of the Collective Agreement between full-time and
part-time employees, and where most part-time employees work full day
shifts. Indeed, those who normally work full-day shifts are
disproportionately affected and generally lose a greater amount of income
than those workers who work partial-day shifts.
As noted, the Employer responds that there can be nothing unreasonable, illogical, unfair or
absurd about applying the ESA method for calculating public holiday pay. It is the basic law of
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the land. Further, the Employer refers to Dufferin-Peel, in which Arbitrator Kaplan quotes the
statement in T.C.F. of Canada Ltd. v. T.W.U.A., Local 1332 (1972), 1 L.A.C. (2d) 382 (Adell),
that, “[e]xisting arbitral jurisprudence is predominately of the view that unless the collective
agreement indicates otherwise, holiday pay is not basically a means of indemnifying employees
against losing a day's wages through not being allowed to work on the holiday. Rather, it is an
additional form of payment for work already done...”
The Union responds that an important distinction here is the fact that these employees usually
work seven-hour shifts, which is what, the Union submits, makes the ESA calculation method
particularly unfair, unreasonable or absurd. Second, the Union submits that the quote from
T.C.F., supra, must be understood in context. The context in T.C.F. was qualifying for public
holidays, not the amount of pay, and Arbitrator Adell found in favour of the union.
The Union’s first point has largely been addressed above. Here I would simply add that there
is nothing at all unusual about the scheduling of these part-time employees. Being scheduled to
work two (or three) full shifts a week, rather than fewer hours several days a week, is entirely
common. And, the ESA averaging method is widely known. It was in place for almost 20 years
before it was changed, briefly, to something much closer to the Union’s position, before being
changed back. And for some time it has been clear that the ESA method applies (or can be
applied by employers in the exercise of their management rights) unless the collective agreement
creates a different (and better) method. The onus, in other words, is on the Union to negotiate
such a clause; it is not on the Employer to exclude it.
The Union’s second point, about the T.C.F. case, is well taken. I do not believe that
Arbitrator Adell, in stating that, “holiday pay is not basically a means of indemnifying
employees against losing a day's wages through not being allowed to work on the holiday” (my
emphasis), in the context of a qualifying days grievance, meant to rule out the possibility of it
being understood to perform at least something of that function in a different context; that said, I
would refer to the comments of Arbitrator Herman in Service Corporation, supra, concerning the
“earned benefit” nature of public holidays viz. the ESA “attempts to define parameters for
measuring the amount of holiday pay that has been earned by an employee”. In my view,
something similar would apply to any possible indemnity argument. The question of degree or
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extent would remain. The ESA takes a pro rata or averaging approach. The collective agreement
takes no approach. It is “silent”.
For all of these reasons, the grievance is dismissed.
DATED at Toronto this 25th day of February 2020.
Russell Goodfellow – Arbitrator