HomeMy WebLinkAboutLambe et al 11-09-29IN THE MATTER OF AN ARBITRATION
BETWEEN:
Dufferin -Peel Catholic District School Board
and
OPSEU, Local 283
(Multiple Grievances re: Article 20.01 Paid Holidays)
Before: William Kaplan
Sole Arbitrator
Appearances
For the Employer: John -Paul Alexandrowicz
Hicks Morley
Barristers & Solicitors
For the Union: Ed Holmes
Ryder Wright Blair & Holmes
Barristers & Solicitors
This matter proceeded to a hearing in Mississauga on September 23, 2011.
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Introduction
OPSEU, Local 283, represents ESL instructors and related classifications employed by
the Dufferin -Peel Catholic School Board. In November 2008, the parties signed their first
collective agreement. Article 20.01 reads as follows:
The paid holidays recognized by the board for Full -time and Part-time Seniority Employees are as
follows: New Year's Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day,
Thanksgiving Day, Christmas Day, Boxing Day.
The dispute in this case is over the method of calculating the amount of payment for each
of these paid holidays. The case proceeded to a hearing in Mississauga on September 23,
2011.
Some Background Facts
There are approximately 70 employees in the bargaining unit. They all work different
shifts. For example, one employee, JB, works Monday- Thursday, 12:30 pm to 3:00 pm,
and Monday to Friday, 9:00 am to 12:00 pm. Other employees work in the evenings and
Saturdays and Sundays. There are no "regular hours" or "regular work weeks." Some
employees work a lot of hours; others fewer hours.
After the collective agreement came into effect, the employer had to calculate the
payment for the paid holidays. It applied the formula provided for in section 24(1) the
Employment Standards Act 2000 involving an averaging of the total amount of the
regular wages earned and vacation pay payable to the employee in the four work weeks
before the work week in which the holiday occurred, divided by twenty. Many employees
objected and numerous grievances were filed. The parties have agreed that this award,
interpreting Article 20.01, will apply to all of the outstanding grievances.
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Position of the Parties
In brief, the union takes the position that the amount of compensation for these paid
holidays should be calculated in one of two ways. By way of example, if an employee
was scheduled to work ten hours on one of the paid holidays, he or she should receive ten
hours pay. However, if the employee was not scheduled to work on the paid holiday, then
he or she should be paid in accordance with the formula set out above. The union asserts
that this interpretation is the only one that makes sense when the provision is looked at
within the context of the collective agreement as a whole. Furthermore, in the union's.
view, this interpretation was within the reasonable expectation of the parties and best
gives effect to the provision in issue. Had the parties wished to provide that the
Employment Standards Act 2000 exclusively governed, they could have, the union
argued, easily done so. Significantly, they had not; and the union, therefore, asked for an
order upholding all of the grievances. The union asked that I remain seized in the event
the parties were unable to appropriately implement my award.
For its part, the employer took the position that the collective agreement was clear in
what it provided for and what it left out. It provided for a number of paid holidays. It left
out the manner in which those holidays would be paid. Accordingly, the employer
reverted to the legislation to determine the most fair and most consistent manner of
calculating the payments. This was not a situation where reference could be had to a daily
or weekly rate in order to determine entitlement. In practice, in some cases, when
applying the formula, employees would be "overpaid" because they would receive more
money for the paid holiday than they would have received if it was a regular work day. In
other cases, they received less. The employer asked that the grievances be dismissed. A
number of authorities were advanced in support of these submissions.
Decision
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.
In TCF of Canada and Textile Workers' Union (1972) I LAC 382 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.
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. 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.
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
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the collective agreement and is internally inconsistent. Accordingly, for all of these
reasons, and in light of the governing authorities, the grievances are dismissed.
DATED at Toronto this 29t" day of September 2011.
"William Kaplan "
William Kaplan, Sole Arbitrator