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HomeMy WebLinkAbout1984-1285.Radic.85-06-131285184 IN THE MATTER OF AN’ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: For the Employer: Hearing: OPSEU (Ned Radic) and Crievor The Crown in Right of Ontario (Ministry of Health) Employer R. L. Verity, Q.C. Vice-Chairman T. Traves Member D. 8. Middleton Member M. Wysocki Grievance Officer Ontario Public Services Employees Union 2 A. W. McChesney Staff Relations Officer Civil Service Crown May 17, 1985 DECISION In this matter, eight employees of the Kingston Psychiatric Hospital attached their signatures to a Grievance filed by Ned Radic on November 16, 1984, and thereby purported to file a Group Grievance. There is, of course, no provision in the present Collectiv'e Agreement that authorizes the filing of a Group Grievance. In any event, the Grievance alleged improper denial of holiday pay under Article 19 for work performed on a holiday .isted under Article 47.1. Grievance withdrawn jurisdicti At the Hear and advised lng, the Union proceeded the Board that the rema ining Grievers had with the Radic their claims. The Parties agreed that the Board had on to determine the matter. The Hearing proceeded by way of an agreed Statement of Facts followed by brief argument by each of the Parties. No oral evidence was'introduced. The following emp loyed as a Food Serv i facts are relevant. The Griever is ce Worker at the Kingston Psychiatric Hospital, Kingston, Ontario. Normally, he works eight hours per day, 40 hours per week. The Griever's work schedules are subject to rotating work weeks, which include scheduled weekend work on a regular or recurring basis. In 1984, Remembrance Day, a designated Holiday listed . under Article 47.1 fell on Sunday, November 11. In accordance with the provisions of Article 47.2, the Employer designated Monday, November 12, 1984 as the Remembrance Day Holiday. The Grievor'worked his scheduled shift on Sunday, November 11, but did not work on Monday, November 12. The Grievor received eight hours pay at his basic hourly rate for Monday, November 12. The sole issue for determination is the Grievor’s entitlement to holiday payment for work performed on Sunday, November 11, 1984. Art icle 47 is the relevant Article, and reads as follows: "ARTICLE 47 - HOLIDAYS 47.1 An employee shall be entitled to the following holidays each year: -New Year’s Day Good Friday Easter Monday Victoria Day Dominion Day Civic Holiday Labour Day Thanksgiving Day Remembrance Day Christmas Day Boxing Day Any special holiday as proclaimed by the Governor-General or Lieutenant Governor. 47.2 Except as provided in Section 47.3 when a holiday specified in section 47.1 falls on a Saturday or Sunday or when any two of them fall on a suc- cessive Saturday and Sunday, the reg- ular working day or days next follow- ing is a holiday or are holidays, as the case may be, in lieu thereof, but when such next following regular wor,king day is also a holiday the next regular working day thereafter is in lieu thereof as a holiday. 47.3 Those employees whose work sched,ules are subject to rotating work weeks which include scheduled,weekend work on a regular or recurring basis shall have the Christmas Day, Boxing Day, and New Year’s Day holidays desig- nated as December 25th, December 26th and January Ist, respectively, and section 47.2 shall have no applica- tion to these employees in respect of these holidays.” The Union alleged that certain holidays listed in Article 47.1, including Remembrance Day were movable dates. The Union argued that Article 47.2 applied to and benefited only those employees who work Monday to Friday. The Union’s contention was that a rotating shift worker should be entitled to holiday payment for Remembrance Day on the day that the hol- iday occurs in the same manner as payment for the three desig- nated .holidays specified in Article 47.3. The Employer argued that the wording of Article 47.3 was clear and unambiguous and that accordingly, the Griever had that rotating shift workers no claim. The Employer contended were not eligible for holiday pay actual anniversary date of the ho for work performed on the liday unless the employees - 5 - worked on Christmas Day, Boxing Day and New Year's Day as spec- ified in Article 47.3. In the instant matter, the Board cannot find that there has been any violation of the Collective Agreement by the Employer's actions, and accordingly this Grievance cannot suc- ceed. The language-contained in Article 47 of the Collec- tive Agreement is clear and unambiguous. The role of an Arbi- tration Board is restricted to the interpretation of the Collective Agreement as it stands, and not to create any new provision for the Parties. Article 47.1 entitles all employees to 11 annual des- ignated holidays including Remembrance Day. Article 47.2 states, in part, that except for the provisions of Article 47.3, that where a holiday designated in Article 47.1 falls.on a~saturday or Sunday, the regular working day next following shall be the holiday. Therefore, in accordance with the Col- lective Agreement., the Employer properl'y designated Monday, November 12 as the Remembrance Day Holiday .in 1984. All Employees are affected by the provisions oft Article 47.2. Article 47.3 applies exclusively to employees who work rotating shift. schedules which includes weekend work on a .regular or recurring basis. The. Article states that for those workers, three designated holidays, namely Ch'ristmas Day, Boxing Day, and New Year's Day shall be taken on December 25, December 26 and January 1 respectively, and for those dates the provisions of Article 47.2 have no~application. Remembrance Day is not a holiday designated under Article 4 7.3. Had the Parties intended to include Remembrance Day within the provi- sions of Article 47.3, then the Article would have been drafted according,ly. - 6 - In the instant matter, if the Board were to accept the merits of the Union's argument, we would in effect be altering the provisions of the Collective Agreement. To db so would exceed our jurisdiction and would be contrary to the provisions of Article 27.14. DATED at Brantford, Ontario, this 1 3th day of June, A.D., 1985. I I