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HomeMy WebLinkAbout1980-0215.Barnard et al.83-06-21215/80 IN THE MATTER OF AN ARBITRATION Under THE CRCWN,EMPLOYEES CCLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before : OLBEU (8. Barnard, et al) Grievors - And - The Crown in Right of Ontario [Liquor Control Board of pntario) Employer J.F.W. Weatherill Chairman I.J. Thomson Member F.T. Collict Member For the Grievors: N. Finkelstein, Counsel Blake, Cassels & Graydon For the Employer: J. Baker, Counsel Hicks Morley Hamilton Stewart 8i Storie Hearing: February 1, 1983 ,.D E C I S I O.-N In an award dated November 1, 1982, the Board (in a differently-constituted panel) held that these gri$vanGes were properly before it, and directed that they be consolidated and set down for hearing. The grievapces,.dated November 28, 1979 and November 28, 1980, are group grievances, and allege a failure by the employer to pay overtime pay'in accordance with article 5.6(a) of the collective agreement. There, is no dispute as to the facts. In 1979, the work week in respect of which the claim is made began (pursuant to article 5.1(c) of the collective agreement), on Monday, November 12. That day was a holiday, taken in lieu of Remembrance Day which was on Sunday, November 11. ,The qrievors worked on that day (November 12), and were paid triple time for hours worked, in accordance with article 6.4. The grievors worked the rest of the week (Tuesday to Friday of that week being normal working days), and also worked, at the employer's request, on Saturday, November 17, which was a regular day off. They were paid at time and one-half for work on the Saturday. Their claim is to be paid for that day at the rate of double time. $2 $s -3- In 1980, the work week~in respect of which the claim is made began on Monday, November 10, which would appear to have been a regular working day. Tuesday, November 11, was a holiday, but the grievors worked that day at the employer's request, and were paid, properly, at triple time. Again, the grievors worked the rest of the week and on Saturday, November 15, a regular day off, worked at the'employer's request, being paid at time and one-half. Their claim is to be paid at double time for that day. Article 5.6(a) of the collective agreement is as follows: 5.6(a) Authorized work performed in excess of the employee's regular work day shall be paid at the rate of one and one half (14/2) times the regular hourly rate of the employee unless otherwise provided in this Agreement. All work performed on any second con- secutive day of overtime shall be paid at double the employee's regular rate of pay. It is understood that an employee is to receive double rates when the employee works on the employee's second scheduled day off. There is no doubt that the work performed on the two Saturdays in question was "overtime" within the meaning of article 5.1(b), where it is defined as follows: -4- Here, the work was 'performed on days which were not ?regular working days", and this was not due to shift rotation. It was "authorized work performed in excess of the employee's regular work day", and the general provision (set out in the first sentence of article 5.6(a)), is for payment at time and one-half insuch cases, The union, eowever , relies on the special provision, set out in the third sentence of article 5.6(a), that "double rates" are to be paid "when the employee works on the employee's second scheduled day off". The question to be determined, then, is this: were .the Saturdays in question the grievors' second scheduled days off in those weeks? The Saturdays them- selves were, in each case, scheduled days off. Were the -5- holidays (November 12 in 1979; November 11 in 1980), also f'scheduled days off"? Tf so, the Saturdays would be the second scheduled days off, and work on those days should be paid for at double time. If not, the general provision of article 5;6(a) would apply, and the grievors were R$operly paid at time and one-half. A "holiday" is, in general, a day on which an employee is not required to work, and yet for which he receives pay. Where the very day of a holiday falls on a weekend or during his vacation, a "lieu day" is provided for under this collective agreement. It may familiarly be said that a holiday is a "day off". It does not follow, and we think it is not the case, that a holiday is a ., "scheduled day off" in the sense in which that phrase is used in art+le 5.$(a). The collective agreement does not appear to provide for weekly schedules. It is acknowledged, however, that emPloy,ees do have scheduled days off. The grievors are warehouse employees, and it would seem Saturday and Sunday are regularly scheduled days off for them, By artiqle 5.4(a)(iii), days off for store employees are on a rotational basis. While that provision does not affect warehouse employees, it is indicative of the role of days off in a regular schedule, and of the fact that "holidays" and "days off" are separate matters, and the subject of separate provisions in the collective agreement. Holidays are dealt with in article 6, and as has already been noted the grjevors were paid at triple time, punsuant to article. 6.4, for their work on the holidays which fell during the weeks in question. The distinction between "regular days" and "holidays" is relied on in article 5.8, which is as follows: 5.8 Authorized work performed in excess of five (5) regular days during any week, or five (5) days less one (1) day for each paid.holiday (as defined in Article 6) during that week, shall be paid at the overtime rates, subject to the other provisions of this Agreement. Clearly, the determination of whether or not overtime rates apply is to be made by subtracting holidays from the. number of days per week paid at regular rates. Again, in article 5.10, a clear distinction is made between 'la paid holiday" (or other day that is not a regular working day) , and a "scheduled day off". In our view, the holiday pay provisions, -, 7 - including the provision in article 6.4 for pay for work on a holiday, are qui.te distinct from the hours of work I and overtime provisions set out in article 5 of the collec- tive lagreement. Holidays, we conclude, are not "scheduled days off" for the purposes of article 5.6. Thus, the grievors were correctly paid at time and one-half rather then at double time for the Saturdays in question. For the foregoing reasons, the grievances are dismissed. DATED AT TORONTO, this 21st day of June, 1983. v hairman 8:2100