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HomeMy WebLinkAbout1991-1789.James.93-01-19 ~ - -- ONTARIO EMPLOYES DE LA COURONNE i " CROWN EMPLOYEES DE I'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 7Z8 TELEPHONE/'J'~-L,~-PHONE: (416~ .326- '~388 '~80, RuE DUNDAS OUEST, BUREAU 2100, TORONTO {ONTARIO,. MSG IZ8 FACS'/I'.'fILE/T.~:L£cCOP.~E : (4 ~6) 326-;396 1789/91 IN THE ~TTER.OF ~ARBITI~TiON Under THE CRO~NEMPLOYEES COLLECTIVE B~RGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (James) Grievor --and - The Croum in Right off Ontario (Liquor Control Board of Ontario) .Employer BEFORE: W. Kaplan Vice-Chairperson E. Seymour Member M. O'Toole Member FOR THE E. Mitchell GRIE~OR Counsel Koskie & Minsky Barristers & Solicitors FOR THE' R. Drmaj EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING December 23, 1992 ~ Introduction On .September 6, 1991, Wayne James, al LCBO employee working at the Durham Warehouse, filed a grievance cl'aiming a violation of Article 6.6 (a~ h . of the Collective Agreement, whic provides: Authorized work performed in excess of the employee's normal work day shall be paid at the rate of one and on~ half (11/?_) times the normal hourly rate of the employe~ unless otherwise provided in this Agreement. All work I performed on any second con,secutive day of overtime . shall be paid at double the e~ployee s normal rate of pay. It is understood that an empl,oyee is to receive double ' rates when the employee works on the employee's second scheduled day off. Also relevant are the following provisions of the Collective Agreement: 6.1 For the purposes of this Articte: (a) overtime means a period of work computed to the nearest fifteen (15) minutes and, (i) performed on a regular wqrking day in excess of the regular working period consisting of at least fifteen (1 5) minutes, or, - (ii) performed on a holiday or other day that is not a regular working day but shall not occur where the work performed is due to shift ro~ation. [emphasis not ours] 6.2(a) The Employers shall p.rescribe the number of hours in each working day not exce,ed~ng e~ght (8) hours for the various departments or estal~lishments of the Employers. Normal hours of work will b~ as follows: (ii) Warehouses: 8:00 a.m. to 4:00 p.m. (day shift) .*No fifteen (15) minute rest periods during the 'afternoon **4:00 p.m. to 10::30 p.m. (night shift) **No fifteen (15) minute rest periods 6.6 (d) Where an employee is required to work on a Sunday as part of that employee's regular shift, the employee is .to be paid at the rate of one and one half (11/2)' times the regular hourly rate of the employee. 6.6 (el Where an employee is required to work on a Sunday, provided the Sunday is not part of the employee's regular shift, the employee shall be paid at the rate of twice the regular hourly rate of the employee. 6.7 Except as provided in Article 6.5 overtime rates shall be applicable from the time an employee completes his/her normal work day determined from the time he/she commences work, but only if a minimum of fifteen (15) minutes in excess of the normal hours are worked, and overtime rates shall be paid to the nearest fifteen (15) minutes. An employee who works three (3) hours in excess of his/her normal working hours shall receive one half (1/2) hour off with pay for a lunch period. 6.8.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 7) during that week, shall be paid at the overtime rates, subject to the other provisions of this Agreement. None of the facts in this case are in dispute. The grievor works the day shift at the Durham Warehouse. The hours of work are as defined in Article 6.2_ (al (ii) of the Collective Agreement. In the pay period ending September 1, 1991, the grievor worked his regularly scheduled hours. He also worked / overtime. On Monday, he worked four I~ours of overtime. On Tuesday, he worked another four hours of overtime. On Thursday, he worked two hours of overtime, on Friday, he worked one hour of overtime. And on Saturday, he worked eight hours of overtime. The employer paid the grievor for all of this overtime at the time-and-a-half-r~te. The grievance claims that in accordance with Article 6.6' (a) of the Collective Agreement, the grievor should have received double time for tl~e overtime hours worked on the / Tuesday, Friday and Saturday in that each of these days was a "second consecutive day of overtime." It was not necessary to hear any evide3ce in this case as the parties agreed to these facts, and as the only issue inI dispute was the proper interpretation of the Collective Agreerrent, the case proceeded directly to argument. Union Argument Union counsel began her submissions byI urging the Board to take a purposive approach to the interpretation of the overtime provisions. The purpose of overtime, in counsel's submission, was to compensate employees who would otherwise be enjoying leisure time, and to encourage employers to sched~,le work in such a way as not to require ol~ertime. Counsel provided the Board / with a number of authorities illustrating these points including Palmer & .I Palmer, Collective Agreement Arbitration in Canada, Third Edition, Re Allied Construction Council and H.E.P.C. of Ontario 1Z L.A.C. 105 (Donley), Re Printing Specialties and Paper Products Union, Local 466, and Canada Foils Ltd. 19 L.A.C. 181 (O'Shea), Re Allied Oonstruction Council and Hydro I Electric Power Commission of Ontario 18 L.A.C. 43 (Hanrahan), and Re Texaco Canada Ltd. and oiJ, Chemical & Atomii~ Workers, Local 9-599 10 L.A.C. (2d) 22.1 (Shime). Turning to the language of Article 6.6 (a), counsel argued that the first sentence of that provision set out the general rule. That general rule was followed by two specific exceptions, and the second sentence was directly applicable, in counsel's sub.mission, to the facts of the instant case. The third sentence was another exception, and was not directly applicable to this case. Counsel argued that according to the second sentence, any time an employee worked overtime two days in a row, he or she should be paid double time for the hours worked on the second day. In her view, the words "day of overtime" meant the overtime hours worked following the regular working day, and created an entitlement to double pay when overtime hours were ..worked on the second consecutive day. Employer Argument Employer counsel began his submissions by noting that' the Collective Agreement covers approximately six hundred different work sites, and should be interpreted with that fact in mind. In counsel's submission, "normal work day" meant employees' normal hours of work as set out in Article 6.Z. Should an employee work additional hours on a ';normal work day", counsel argued that he or she should be paid time and a half. In counsel's submission, the only time that warehouse employees would receive double time would be if they worked their normal hours for a week, then worked an overtime full shift and then worked another overtime full shift. The overtime work performed on the second consecutive day would, in counsel's submission, attract the double-time premium. Very simply, in counsel's submission, just because an employee worked some overtime following his or her normal work day t~'o days in a row did not make the second day's overtime work "a second :onsecutive day of overtime" for the purposes of attracting double pay. Counsel argued that the Board should not interpret the Collective Agreement in s'.~ch a manner that turned "hours" into "days." Union Reply Union counsel noted in reply that to interpret the provision in the manner suggested by the employer would be to render the second sentence of Article 6.6 (a) meaningless for warehouse workers. Counsel noted that the / warehouse employees' normal work da~s were Monday to Friday. If the / employer's interpretation prevailed, they would never be able to take advantage of the second sentence of t3e provision because Article 6.6 (e) already provided for them to receive d3uble time on Sunday shifts. Accordingly, if the employer's position was maintained, they could never benefit from the provision in Article 6.~6 (a). This, counsel suggested, could not be the intention of the parties, anld moreover, as rule of construction, did not make any sense for it read out' entirely a provision negotiated by the parties. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the grievance must be upheld. It is useful to begin by considering the definition of overtime found in Article 6.1 of the Collective Agreement. This definition makes it clear that overtime is any work. in excess of fifteen minutes performed on a' regular working day in excess of the regular working period. This means that all of the additional work performed by the grievor in the period under review is overtime for the purposes of the application of Article 6.6 (a). And that means.that the "second consecutive day of overtime" is not, as the employer suggests, a second full shift of overtime, but the second day on which overtime is performed in excess of fifteen minutes fqllowing an employee's normal work day. In the instant case, the grievor worked overtime, as defined in the Collective Agreement, on Monday, Tuesday, Thursday, Friday and Saturday. The "second consecutive day of'overtime" was on Tuesday, Friday and' Saturday, and this additiona~ overtime attracts double pay.' To adopt the employer's interpretation in this case would be to render meaningless the second sentence of Article 6.6 (a), for warehouse employees always work a Monday-to-Friday shift and already receive double pay for Sunday work by virtue of another provision of the Collecti've Agreement. The second sentence of Article 6.6 (a).was negotiated for a reason, and considered alongside the definition of overtime, and the other provisions of the Collective Agreement, it is clear that the parties intended for employees to receive double pay.whenever they were called upon to perform overtime two or more days' in a row on the second and succeeding' days. Our conclusion is further reinforced by the language of Article 6.7, which provides that "overtime rates" (emphasis ours) begin as soon as the employee has finished his or her regular shift. Obviously, by using the plural the parties recognized that sometimes overtime rates would be at time-and-a-half, and at other times they would be at double-time. The same point can be made with respect to the language of Article 6.8, The Collective Agreement explicitly contemplates that there will be differing rates, as in the instant case when some of the grievor's overtime should have been paid at time-and-a-half, and some of it should have been paid at double time. While not necessary in reaching this result given the clear language of the Collective Agreement, this finding can also be supported by taking a purposive approach to overtime provisions as discussed in some of the case law. Accordingly, and for the foregoing reasons, the grievance is upheld. The employer is directed to pay the grievor double pay for the overtime hours worked on the Tuesday, Friday and Saturday of the pay period ending on September 1, 1991. We remain seized with respect to the implementation of this award. DATED at Toronto this zgch day of January, 1993. William Kaplan Vice-Chairperson £. Seymour Member M. O'Toole Member