HomeMy WebLinkAboutUnion 24-04-02IN THE MATTER OF AN ARBITRATION
BETWEEN:
COMMUNITY LIVING OAKVILLE
(the “Employer”)
-AND-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 249
(the “Union”)
JANICE JOHNSTON - SOLE ARBITRATOR
IN THE MATTER OF A POLICY GRIEVANCE RE: PREMIUM PAY
APPEARANCES:
For the Employer: Daniel Pugen Counsel
Mary Athanasopoulos Counsel
Shannon Coles Director, Human Resources
For the Union: Luka Ryder-Bunting Counsel
Elena Navarro-Finnegan Union Steward
Patrick Fry-Smith OPSEU Staff Representative
Apollonia Mastrogiacomo Student-at-law
Video conference hearings were held on this matter on April 25, 2023, January 8, 2024
and March 7, 2024.
AWARD
1. Community Living Oakville (“CLO” or the “Employer”), is a non-profit organization
which provides a range of support services to children, youth and adults who have
developmental disabilities and their families. Support is provided to the
developmentally delayed in all aspects of life from residential programing to day
programs.
2. The facts in this case are, to a large extent, not in dispute. An issue has arisen
between the parties with regard to the interpretation of the collective agreement.
The issue is whether under the collective agreement, hours worked on a statutory
holiday should be counted for the purposes of the calculation of overtime in a bi-
weekly period.
3. The Union asks that I allow the grievance and issue a declaration that the
Employer is in breach of the collective agreement by refusing to recognize hours
worked on statutory holidays under the collective agreement as hours worked for
the purpose of computing overtime.
4. The relevant language in the collective agreement provides as follows:
18.04 If an employee is required to work on a paid holiday a premium of
time and one-half, (1 ½) times his regular pay for the hours worked shall
be paid and another day off in lieu within ninety, (90) calendar days of the
holiday at a mutually agreed time and should agreement not be reached,
then a day’s pay shall be paid….
20.03 (b) If an employee is authorized to work and does work in excess of
eighty hours in a bi-weekly period, they will be entitled to receive payment
of an overtime premium at the rate of one and one-half (1 1/2) times the
employee's regular straight time hourly rate of pay for time so worked.
Instead of payment for overtime, an employee may choose to receive time
off in lieu of the appropriate overtime rate….
(c) It is understood that there will be no duplication of premiums under this
agreement, nor accumulation of overtime. Time paid but not worked,
will not be counted towards hours for which the overtime premium is
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paid. This however does not include statutory holidays, break days,
compassionate leave or lieu time that has been worked and utilized at
regular rate. When the Employer has fulfilled their obligations of the
overtime protocol, Employees on the overtime list will be offered
overtime premium regardless of hours paid but not worked. When
Employees are not relieved at the end of their scheduled shifts and the
Employer has fulfilled their obligations of the overtime protocol,
Employees regardless of hours worked will be paid at premium pay.
5. There is no dispute between the parties that time paid, but not worked, on a
statutory holiday counts towards hours for which the overtime premium is paid.
The Employer takes the position that hours worked by an employee on a statutory
holiday do not count towards hours for which the overtime premium is paid. They
are not included in determining whether or not the eighty-hour threshold in a bi-
weekly period has been exceeded.
6. I heard from two witnesses in this case. Elena Navarro Finnigan, a Union Steward
who has been with the Employer for more than twenty-eight years, testified on
behalf of the Union. Ms. Shannon Coles, the Director of Human Resources, who
has been employed by CLO since 1979, testified on behalf of the Employer. Both
witnesses testified as to the past practice with regard to the interpretation of this
clause.
7. From April 2004 until March 31, 2014, article 20.03(c) of the collective agreement
consisted simply of the first sentence in the current collective agreement
language. It read, “It is understood that there will be no duplication of premiums
under this agreement, nor accumulation of overtime.” On cross examination, Ms.
Coles acknowledged that from at least April 2004 until 2013, pursuant to this
language, the Employer's practice was to recognize hours worked on statutory
holidays for the purpose of calculating overtime. There is no dispute that the
current approach of the Employer was not the policy applied by the Employer
prior to 2013.
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8. The language changed in the collective agreement that ran from April 1, 2014
until March 31, 2016 to read as follows:
20.03(c) It is understood that there will be no duplication of premiums
under this agreement, nor accumulation of overtime. Time paid but not
worked, will not be counted towards hours for which the overtime premium
is paid. This however does not include statutory holidays that fall on
employees regularly scheduled days off, or lieu time that has been worked
and utilized at regular rate. When employees are not relieved at the end of
their scheduled shifts and the employer has fulfilled their obligations of the
overtime protocol, employees regardless of hours worked will be paid at
premium pay.
9. There is no dispute that after this change in the collective agreement, the practice
of the Employer changed and time worked on a statutory holiday was no longer
counted by the Employer for the purposes of calculating overtime pursuant to
article 20.03(b). However, the wording in the first sentence did not change.
10. I heard extrinsic evidence from Ms. Coles with regard to the changes to the
language and the intentions of the parties. She testified that while bargaining for
the renewal of the 2010 to 2014 collective agreement, the Employer sought
clarification as to the meaning of Art. 20.03(c) and whether it was proper to count
hours worked on statutory holidays for the overtime threshold given the "no
duplication of premiums" language. The staff representative for the Union at the
time advised that in his view the "no duplication of premiums" language meant
that if an employee was already receiving premium pay for a shift (like when
working on a statutory holiday), those hours did not count towards the calculation
of overtime.
11. I will return to this evidence later in my decision. However, given that the first
sentence did not change and there is nothing in the new language that addresses
the specific issue of how time worked on a statutory holiday, as opposed to time
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paid and not worked on a holiday, would be dealt with, I’m not sure that this
evidence is of much assistance to me. It does serve to illustrate the subjective
belief of the Union representative at the time, but the same first sentence had
been given the opposite interpretation for nearly ten years by the parties. In any
event, it is my role to objectively assess the meaning of the language used in the
collective agreement.
Union Submissions
12. Counsel for the Union started by walking through the collective agreement
provisions. He pointed out that the agreement elucidates certain days which will
be deemed holidays, which is in Article 18 of the agreement. Article 18.04
specifies that where an employee works on a recognized holiday, they will be paid
a premium of time and one-half and receive a day off in lieu. He next pointed to
article 20.03(b) which requires that any hours worked in excess of 80 in a bi-
weekly period must be paid the overtime premium. Counsel argued that this is
clear, specific and unequivocal language bestowing a right under the collective
agreement onto employees. Insofar as the Employer seeks to derogate from that
clear intention of the parties, there has to be language which disentitles
employees from that benefit. That language does not exist in the collective
agreement.
13. Union counsel argued that the provision that represents the core of the dispute is
Article 20.03(c). It reads, "It is understood that there will be no duplication of
premiums under this agreement, nor accumulation of overtime." To understand
this sentence, we need to read it entirely and in its context. The second sentence
reads, "Time paid but not worked, will not be counted towards hours for which the
overtime premium is paid." This sentence is related to the first sentence, insofar
as it contextualises what is meant by "nor accumulation of overtime." In addition, it
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reinforces the point that time actually worked will be counted towards the overtime
premium, as otherwise there would be no need to clarify that time paid but not
worked will not be counted for the overtime premium.
14. The third sentence reads, “This however does not include statutory holidays,
break days, compassionate leave or lieu time that has been worked and utilized at
regular rate.” This sentence provides an exception to the time paid but not worked
sentence and identifies that a number of types of pay for hours not actually
worked still qualify for overtime purposes. This is in recognition of the fact that
employees who take the mentioned time off should not be required to work
additional shifts in the pay period surrounding that time off, because the purpose
of paying employees for those hours is so that they have time off in important
periods without a financial cost.
15. In anticipation of the Employer's arguments, counsel suggested that the Union's
position can be boiled down to three points. There is no duplication of premiums
because the premium payments are made for different hours. There is also no
duplication of premiums because the counting of hours itself is clearly not a
premium. Further, there is no basis to conclude that the phrase accumulation of
overtime supports the Employer's position and it should be understood as
operating in tandem with the time paid but not worked sentence.
16. Regarding the first point, there is no duplication of premiums because the
premium payments are made for different hours worked in this case. The term
duplication of premiums is considered in a variety of decisions, often in
comparison to the term pyramiding. What is abundantly clear from the cases is
that duplication, or pyramiding for that matter, can only be found to apply where
two or more premium payments are paid on the same hours. Different cases
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assign other rules associated with that based on the language of the agreement,
but those disputes aren't relevant to the issue in our case. What is important is
that there is no dispute in our case that the premiums are applied to different
hours and therefore the condition precedent for duplication to apply is not
satisfied.
17. As the evidence showed, the Employer is seeking to not count hours worked on a
statutory holiday for the purposes of overtime. It doesn't matter, in their view,
which hours were performed on the holiday and which hours attract the overtime
premium. This disentitles employees from overtime payments on hours worked on
completely different shifts, days, or even weeks than the hours worked on the
statutory holiday. As an example, counsel suggested that an employee could
work a 10-hour shift on a statutory holiday, which fell on day one of the pay period
and then go on to work another 70 hours between day two and day thirteen, for a
total of 80 hours. Then, on day fourteen, they work 10 additional hours, which
should be paid at the overtime rate. According to the employer, they are not
entitled to overtime for those 10 hours because they worked on a statutory holiday
nearly two weeks prior. The hours worked on the holiday are not the same hours
for which the overtime premium payment is being paid. They are different shifts
and different hours.
18. Union counsel suggested that the caselaw is consistent in finding that duplication
cannot apply when the premiums are paid for different hours. In support of this
position, he referred to Ontario Public Service Employees Union, Local 649 and
Cochrane Highway Maintenance Limited, 2020 CanLII 55893 (ON LA) (the
Cochrane Highway case) and Westin Harbour Castle and UFCW, Local 333,
2008 CarswellOnt 10430, [2008] O.L.A.A. No. 67, 92 C.L.A.S. 281.
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19. Counsel next made submissions on his position that there is also no duplication of
premiums because the counting of hours itself is clearly not a premium. The
counting of hours is clearly not a premium unto itself and the term premium
cannot be interpreted to include that idea. In the labour context, a premium is
something which increases the amount owing for wages of performed work. It is a
sum of money paid in addition to regular salary, or a supplemental amount of
money above the normal or standard rate. Merely acknowledging that an
employee has worked certain hours is not a premium. Therefore, deeming
counting hours itself to be a premium, is contrary to the plain and ordinary
meaning of that word and as has been recognized in labour arbitration cases. It
would be exceptional to conclude that it is a premium. There would have to be
very clear language that qualifying hours worked is a premium, because that
result would be both contrary to the typical meaning of that word and contrary to
the caselaw on this topic. There is no clear language to that effect in this
agreement
20. In support of this argument counsel referred to Greater Sudbury (City) v Ontario
Nurses’ Association, 2019 CanLII 2337 (ON LA); Ellisdon Facilities Services
(OTMH) Inc. v Canadian Union of Public Employees, Local 815.1, 2023 CanLII
22558 (ON LA); and Canadian Union of Public Employees, Local 8 v Prince of
Peace Manor and Harbour (Verve Senior Living), 2021 CanLII 29712 (AB GAA).
21. Counsel for the Union took the position that the employer's interpretation results
in an absurdity. It is frequently recognized by arbitrators that where an
interpretation results in an absurdity, that interpretation should be avoided. With
the Employer's interpretation, an employee who does not work an 8-hour shift on
a statutory holiday ends up needing to work a full 16 hours less to qualify for
overtime than an employee who does in fact work on that holiday. This is because
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of the operation of the Employer's interpretation in concert with the second half of
the clause 20.03(c), which requires that hours paid but not worked on a statutory
holiday qualify for overtime calculation. In other words, where the employee does
not work the statutory holiday, they are treated as having worked that holiday for
overtime purposes and an employee who does work, isn’t permitted to count the
hours.
22. To illustrate the absurdity, we need to consider two employees, one who doesn't
work on the holiday and one who does. Because of that second half of the
sentence reading "time paid but not worked will not be counted… except for
statutory holidays," the employee who does not work on the holiday is treated as
if they worked 8 hours for the purposes of overtime. So, instead of needing to
work 80 hours in that bi-weekly period to make overtime, they only need to work
72 actual hours. But then an employee who does actually work those 8 hours on
the holiday, is told that they don't qualify for their overtime threshold until they hit
88 hours, because those 8 hours they worked on the holiday aren't counted.
23. So, one employee has to work 72 actual hours to qualify for overtime because
they did not work the holiday, while the other has to work 88 actual hours in order
to qualify for overtime. In Union counsel’s view this is a clear absurdity that the
parties could not have intended.
24. Counsel for the Union also reminded us of the purposes of both overtime and
holiday pay. Time off for statutory holidays is meant to limit the amount of actual
time that employees work special holidays meant for time with family or friends, or
relaxation, or to fairly compensate them for the loss of that time if they work on a
statutory holiday. But the interpretation applied by the Employer operates to
actually increase the amount of hours that an employee who works on a statutory
holiday has to work in that pay period before qualifying for overtime.
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25. Overtime is meant to compensate employees who work in excess of their normal
hours, in recognition of employee's bargained for interest in reasonable working
hours. This is also undermined by the Employer’s interpretation as employees
who do not work on the holiday in question and perform substantially fewer actual
hours are in a far better position than employees who actually perform the work
on recognized holidays.
26. Counsel for the Union next went on to address the extrinsic evidence I heard in
this case and asked me to find that the extrinsic evidence led does not change the
conclusion that hours worked on a statutory holiday must be counted for the
purpose of overtime calculation. He suggested that the evidence led is inadequate
to support the conclusion urged by the employer and should be given no weight.
And, additionally or in the alternative, the words of an agreement remain
preeminent and extrinsic evidence cannot be used to supersede the clear wording
agreed to by the parties.
Employer Submissions
27. Counsel for the Employer argued that the question I must answer is, “Should an
employee work a holiday, receive a premium for that work, and then have those
hours count for purposes of another premium (overtime)?” He suggested that the
answer to that question is "no" based on the language of the collective agreement
which specifically says that there will be no duplication of premiums and no
accumulation of overtime. To accept the Union’s argument would result in a clear
duplication of premiums and a clear accumulation of overtime as set out in the
collective agreement.
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28. The Union’s interpretation is also inconsistent with the agreed-upon practice
which has occurred for close to ten years and which is clearly set out in Employer
memos. To find for the Union would be to specifically overrule the parties' shared
understanding of the issue (i.e. how the parties have interpreted the provision) for
close to a decade. The Employer’s practice only became an issue recently due to
staff shortages which resulted in additional overtime. The union and Employer
have conducted several rounds of bargaining between 2013 and the present day.
The union could have placed the practice at issue at the negotiating table but
chose not to.
29. Counsel for the Employer argued that the language of the collective agreement
unambiguously prohibits "duplication of premiums." Therefore, when an employee
has worked on a statutory holiday and received premium pay for those hours,
those same hours cannot be counted in the threshold for bi-weekly overtime, as
the employee has already received premium pay for those hours. To use the
same hours in the calculation of another premium (overtime) would constitute a
duplication of premiums, a result the parties intended to avoid given the language
of Art. 20.03(c).
30. Counsel suggested that the relevant portion of Art. 20.03(c) is the first sentence,
which reads, “It is understood that there will be no duplication of premiums under
this agreement, nor accumulation of overtime.” The issue at the core of the
present grievance is whether the prohibition against "duplication of premiums…
nor accumulation of overtime" operates to exclude hours for which a premium has
been paid from the calculation of the bi-weekly overtime threshold. The first
sentence of Art. 20.03(c) contains two operative provisions, the first is against the
"duplication of premiums" and the second extends this prohibition to the
"accumulation of overtime."
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31. No duplication of premiums means, in its grammatical and ordinary sense, that
multiple premiums cannot be paid for the same hours worked. Statutory holiday
pay is clearly a "premium" which attracts this prohibition. Overtime pay is also a
premium, as evidenced by the latter half of Art. 20.03(c), which refers to "overtime
premium" and as such also cannot be duplicated with other premiums. No
accumulation of overtime can only mean that the hours are not accumulated for
overtime purposes, which is the exact issue in this case.
32. Employer counsel submitted that the arbitral authority is clear, that in a collective
agreement where there is a prohibition against the "duplication of premiums" this
must be recognized as the parties' expression of their intention to prevent
overlapping premium payments for the same hours. The prohibition on duplicating
premiums applies to two or more premiums for the same hours regardless of the
purposes each serve. "Duplication" is different from the general presumption
against pyramiding in a collective agreement, under which multiple premiums may
be paid for the same hours if they serve different purposes. In support of this
argument counsel referred to set out cite for Mohawk Shared Services Inc. v.
C.U.P.E., Local 1605, [2009] O.L.A.A. No. 370; Durham Region Transit
Commission and CAW-Canada, Local 222 (Steeves), Re, [2008] O.L.A.A. No.
754; Peterborough (County) v. C.U.P.E., Local 1306.5, 2002 CarswellOnt 9094,
68 C.L.A.S. 29; Sunnybrook & Women’s College Health Sciences Centre v.
Brewery, General & Professional Workers’ Union, 2001 CarswellOnt 5973, 95
L.A.C. (4th) 34; Molson Breweries v. N.U.P.G.E., [2002] O.L.A.A No. 878;
Kawartha Lakes (City) and CUPE, Local 855, Re, 2010 CarswellOnt 11858, 101
C.L.A.S. 270; Kaiser Aluminum Canada Ltd. And USW, Local 4885 (191114), Re
2015 CarswellOnt 9722, 123 C.L.A.S. 174; and CUPE, Local 8 and Prince of
Peace Manor and Harbour (Premium), Re 2021 CarswellAlta 926, 334 L.A.C. (4th)
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Counsel acknowledged that the facts of these cases were different and no
consideration was given in them to the accumulation of overtime verbiage.
33. With respect to the second operative provision, "accumulation of overtime," this in
counsel’s view explicitly refers to the counting of hours that apply to the bi-weekly
overtime threshold. These two operative provisions together can only be read to
mean that hours for which a premium has already been paid do not count towards
the "accumulation" of overtime. The language of article. 20.03(c) is clear that this
would constitute a duplication of premiums, regardless of whether the hours
worked on the statutory holiday are the hours to which the overtime premium
would attach. The Union's argument asks me to ignore this prohibition against the
"accumulation of overtime" on hours for which another premium has already been
paid. To do so would be to ignore the presence of this language entirely, which is
contrary to the intentions of the parties and to the principles of collective
agreement interpretation.
34. In response to the argument of Union counsel that were I to accept the
Employer’s interpretation it would result in an absurdity, he suggested that just
because there is a different result or outcome when you work or do not work on a
statutory holiday, does not create an absurdity. It may be unfair or unjust but that
does not make it absurd.
35. In reply, counsel for the Union distinguished the cases relied upon by the
Employer. He stressed that the grievance before me was different as it dealt with
whether hours worked on a statutory holiday should count towards overtime, not
whether employees were entitled to multiple premiums for the same hours
worked, which was the issue in the Employer’s cases.
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Decision
36. My task is to interpret the collective agreement. To assist in interpreting collective
agreements, arbitrators have accepted and applied various rules of construction
or interpretive principles. (See in this regard, DHL Express (Canada) Ltd. and
C.A.W. Locals 4215, 144 & 4278 (2004) 124 L.A.C. (4th) 271). The goal is to
determine the intention of the parties and, if possible to do so, provide an
interpretation that is based on the actual words that the parties have chosen to
use in the collective agreement. In determining the intention of the parties, it is
assumed that the parties meant what they said. It is my role to give the language
used by the parties a meaning that it can reasonably bear and that is internally
consistent.
37. It is also a well-accepted principle that collective agreement language should be
given its ordinary and plain meaning and that provisions in the agreement should
be construed as a whole and interpreted in context. Although often provisions in
different collective agreements may be similar, there are often unique differences.
Therefore, while it is always helpful to review the jurisprudence and the analysis
that other arbitrators have applied, attention must be paid to the language that the
parties in this case have chosen.
38. In the Cavendish Appetizers case, Arbitrator Surdykowski stated his views of the
fundamental principles of contract interpretation as follows:
13. In the Bruce Power LP v Society of Energy Professionals, 2017 CanLII
95612 (ON LA) (a decision cited by the Union), I wrote in paragraph 37
that:
37. In Waterloo Region Record v. Unifor Local 87-M, 2014 CanLII
59675 (ON LA) Arbitrator Hayes cited Arbitrator Burkett’s decision
in Air Canada v. ACPA, [2012] O.L.A.A. No. 64 (which in turn cited
the Ontario Court of Appeal’s decision in Dumbrell v. The Regional
Group of Companies Inc., 2007 ONCA 59 (CanLII), 85 OR (3d)
616; 279 DLR (4th) 201) to make the point that an arbitrator who is
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tasked with interpreting a collective agreement is more than a
linguistic technician and must interpret collective agreement
language both within the context of the agreement read as a whole,
and within the broader context in which the language in issue was
negotiated. That is, the true meaning of a collective agreement
provisions can only be properly determined by a full contextual
analysis of the words used, and that extrinsic evidence of context is
admissible as an aid to interpretation even in the absence of an
assertion of ambiguity.
I went on to explain in paragraphs 38-42 that the Supreme Court of
Canada's decision in Creston Moly Corp. v. Sattva Capital Corp., [2014] 2
S.C.R. 633, 2014 SCC 53 (S.C.C.) (CanLII), particularly paragraphs 46-50
and 55-60 of the decision of Rothstein J. (writing for the unanimous Court)
are instructive regarding the appropriate approach to contract
interpretation; namely, (to borrow from Rothstein J.) a practical, common
sense approach to the contract considered as a whole not dominated by
technical rules of construction, with due regard to the context within which
the contract was made. The clear message from the Supreme Court of
Canada is that the words of the contract must be given their plain and
ordinary meaning read in the context of both the contract as a whole and
in the objective circumstantial context which was or ought reasonably to
have been known to the parties at the time the contract was made.
However, Sattva also makes it clear (in paragraph 60) that although
relevant context can provide an important interpretive aid, it cannot
"overrule" the words agreed to in the contract. That is, it is the words
agreed to by the parties in their collective agreement that matter most.
14 I suggested that it seemed to me that Sattva clarified but as a
practical matter didn't really change much because as always the
decision-makers' task remains what it has always been: to determine the
objective contextual meaning of the contract but with the words used
being the most important consideration…
39. I agree that my task in this case is to determine the objective contextual meaning
of the collective agreement with the words used being the most important
consideration. The focus of my analysis must be on the words that the parties
chose to use, or chose not to include, in article 20.03(b) and (c). Both parties
focused their submissions on the meaning of the first sentence in 20.03(c) which
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for ease of reference reads, “It is understood that there will be no duplication of
premiums under this agreement, nor accumulation of overtime.” This sentence
has been in the collective agreement since at least 2004 and has not changed.
However, the application of this language by the Employer has changed.
40. Prior to 2013, the Employer included hours worked on a statutory holiday into the
calculation of hours worked in a pay period, for the purposes of determining
overtime pursuant to article 20.03(b). In other words, hours worked on a statutory
holiday counted towards the eighty hours required to be worked before overtime
was paid pursuant to article 20.03(b). Article 20.03(c) changed in 2014. However,
as I noted previously, the first sentence did not change and there is nothing in the
new language that addresses the specific issue of how time worked on a statutory
holiday, as opposed to time paid and not worked on a holiday, would be dealt
with. Therefore, given that the current first sentence in 20.03(c) has been
interpreted in opposite ways over the years, the extrinsic evidence is of little
assistance to me in this case.
41. In cases involving the interpretation of language in a collective agreement, often
either one or both parties will call evidence regarding the negotiations or
discussions that took place when the specific language at issue was added to the
collective agreement. The first sentence of Article 20.03(c) has been in the
collective agreement since 2004. Neither party called evidence as to the
discussions that took place when it was added, presumably because that
evidence was not available. The only evidence I have with regard to this language
is what the current parties think it means.
42. In any event it is not necessary to resort to the extrinsic evidence in this case.
Both parties took the position that the language was clear on its face, although
they interpreted it differently. I agree that the language at issue is clear on its face
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and that it is not necessary to resort to extrinsic evidence as an aid to
interpretation.
43. As I noted, it is important to keep in mind the collective agreement as a whole
when assigning meaning to one particular clause, or in this case, sentence. Article
20.03(b) states that, “If an employee is authorized to work and does work in
excess of eighty hours in a bi-weekly period, they will be entitled to receive
payment of an overtime premium at the rate of one and one-half (1 1/2) times the
employee's regular straight time hourly rate of pay for time so worked.” This
clause does not state that time worked on a statutory holiday does not count
towards the eighty hours. It simply says that if an employee works more than
eighty hours in a bi-weekly period, they get paid overtime. Time worked on a
statutory holiday is not excluded from the eighty hour accumulation of time.
44. Counsel for the Union argued that article 20.03(b) is clear, specific, and
unequivocal language bestowing a right under the collective agreement onto
employees and if the Employer seeks to derogate from that clear language, there
has to be language which specifically disentitles employees from that benefit. I
agree with this submission. Article 20.03(b) is clear and there is nothing in either
article 20.03 (b) or 20.03(c) that contradicts this language and creates an
exception and provides that hours worked on a statutory holiday do not count
towards the accumulation of eighty hours.
45. I have carefully reviewed the jurisprudence referred to by the parties. The cases
referred to by Employer counsel, were not really on point as they dealt with the
situation where the Union was seeking either shift premium or weekend premium,
for example, in addition to overtime rates for the same hours. The distinguishing
factor in our case is that the hours for which the Union is seeking overtime rates,
are not the same hours for which an employee received statutory holiday pay.
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46. The Cochrane Highway case, while not identical to our case, is very similar. The
collective agreement language provided for no duplication or pyramiding of any
premium payments or compensating leaves and that overtime was payable after
eighty hours in a pay period. In that case, the Employer denied overtime pay to
the grievor, as it did not include the hours worked on a public holiday in the total
hours worked in the pay period. In that case, Arbitrator Wilson concluded:
22. In the circumstances of this case, there is no pyramiding. The union
is not seeking multiple pay premiums for the same hours worked. The
union is seeking premium payment for the hours worked on the holiday
(October 14, 2019) and the hours worked on October 20, 2019 that
exceed 80 hours in the bi-weekly period. Put simply, they are not the
same hours worked.
23. There is also no duplication of premium payments or compensating
leaves as provided for in the collective agreement. The union does not
seek to duplicate any payments as the hours attracting premium payments
are for different hours worked.
…
30. As explained, the grievance before me seeks the overtime premium
for different hours than were worked to attract the holiday pay premium. It
is not just different hours; it is different days in a different week.
47. I agree with this analysis. In our case, just as in the Cochrane Highway case, the
hours for which the Union is seeking overtime rates, are not the same hours for
which an employee received statutory holiday pay. There is no duplication of
premium payments as referenced in article 20.03(c). If overtime was being sought
for work on the same day and for the same hours as the premium was being paid
for work on a statutory holiday, then that would be a duplication of premiums. An
employee cannot receive a statutory holiday premium payment of time and one
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half and an overtime payment for the same hours. That would be contrary to
article 20.03(c).
48. I do not agree with the interpretation of the words “nor accumulation of overtime”
suggested by counsel for the Employer. It is important to read those words in the
context of the whole sentence. I have concluded that there is no duplication of
premiums if the overtime is sought for different hours than those worked on the
statutory holiday and the same is true for the second part of the sentence. An
employee who is receiving overtime for different hours worked later in the pay
period pursuant to article 20.03(b), is not accumulating overtime. The employee is
simply being paid overtime for the hours worked in excess of eighty in a pay
period. The hours worked on a statutory holiday attract premium pay but they are
not overtime.
49. Counsel for the Union took the position that the Employer's interpretation results
in an absurdity. The Employer's interpretation results in an employee, who does
not work an 8-hour shift on a statutory holiday being better off than an employee
who does work on that holiday. When an employee does not work on the statutory
holiday, they are treated as having worked that holiday for overtime purposes but
an employee who actually does work, isn’t permitted to count the hours. He
suggested that clearly this is an absurdity that the parties could not have
intended. Counsel for the Employer argued that just because there is a different
result or outcome when you work, or do not work on a statutory holiday, does not
create an absurdity. He acknowledged that it may be unfair or unjust but that does
not make it absurd.
50. I am not sure that the Employer’s interpretation rises to the level of an “absurdity”.
However, it is not reasonable or fair to put employees who actually perform work
for the Employer on a statutory holiday in a worse position, in terms of the
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accumulation of hours worked to qualify for overtime, then employees who do not
work. Viewing the language used objectively, that could not have been the
intention of the parties when the first sentence in Article 20.03(c) was negotiated
and included into the collective agreement.
51. Therefore, for all of the reasons stated the grievance is upheld. It the event that
the parties have any difficulties with the interpretation or implementation of this
decision I shall remain seized. The parties have identified that there is an
estoppel/laches issue in this case. That issue is referred back to the parties to
resolve if possible. If the parties are unable to resolve the issue, dates can be set
to deal with it.
Dated in Toronto this 2nd day of April, 2024
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Janice Johnston
Arbitrator