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HomeMy WebLinkAbout2002-1510.Union Grievance.03-10-20 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB#2002-1510 UNION#2002-0999-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown m RIght of Ontano (Management Board Secretanat) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Richard Blair Ryder Wnght, Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat HEARING October 1 2003 2 DECISION ThIS polIcy gnevance, filed on behalf of essentIal and emergency workers, claims they are entItled to holIday pay for Good Fnday and Easter Monday both of whIch fell dunng the stnke In 2002 To be entItled to pay for a holIday an employee must have been covered by the 1999-2001 collectIve agreement and must have met the entItlement cntena prescnbed by that agreement. Coverage under the collectIve agreement IS addressed In the first sectIOn of thIS award. The terms of the collectIve agreement are consIdered In the remaInIng three sectIOns I In Intenm award, dated December 4 2002, I reached the folloWIng conclusIOns about coverage under the collectIve agreement 1 An emergency worker was covered by the collectIve agreement In the Interval between beIng scheduled to work and completIng all scheduled work. The collectIve agreement dId not apply to such an employee before beIng scheduled to work or after all scheduled work had been completed. 2 The collectIve agreement has no applIcatIOn to an employee who was desIgnated to provIde essentIal servIces but performed no such work dunng the stnke 3 An employee who was desIgnated to perform essentIal servIces, and who dId so was covered by the collectIve agreement for the entIre duratIOn of the stnke (pages 18 and 19) With respect to the first paragraph, the employer seeks clanficatIOn of the meamng of the phrase "beIng scheduled to work" and the phrase "completIng all scheduled work" In saYIng an emergency employee's coverage under the collectIve agreement begIns wIth "beIng scheduled to work" I dId not Intend to treat a ShIft posted as part of an employee's weekly or bIweekly schedule dIfferently from a ShIft for whIch he or she IS called back on short notIce Rather I meant to afford the same treatment to these two methods of summomng employees to work, Just as Vice-Chair Roberts dId In OP SEU (Burns) and Ministry of Solicitor General and Correctional Services decIsIOns dated July 23 1996 GSB File No 823/96 In that case, he wrote "scheduling or calling in an employee would seem to be an appropnate pOInt at whIch to tngger applIcatIOn of the collectIve agreement" (page 4 emphasIs added) The meamng of thIS rulIng IS best Illustrated by USIng a concrete example ConsIder an employee who was reqUIred to work on March 25 26 and 27 accordIng to a schedule posted (or a call back made) on March 22 Coverage under the collectIve agreement would begIn wIth the postIng of the schedule (or the makIng of the call back) on March 22 3 As to when coverage under the collectIve agreement ends, the Intenm award says the agreement applIes dunng the penod between beIng scheduled to work and "completIng all scheduled work." In other works, coverage stops when all scheduled work IS completed. The partIes' dIffenng InterpretatIOns of thIS rulIng can be Illustrated by reference to the hypothetIcal employee dIrected on March 22 to work ShIftS on March 25 26 and 27 AccordIng to the argument advanced by counsel for the employer the collectIve agreement would cease to apply to thIS person on March 27 If as of that date he or she had not been assIgned a later shIft. AccordIng to the posItIOn taken by umon counsel, coverage would contInue untIl the end of the stnke, or In the alternatIve, untIl the last ShIft completed dunng the work stoppage, even If that ShIft was not assIgned untIl after March 27 In my VIew management's posItIOn IS the correct one The umon's pnmary argument must be reJected because It does not fit wIth the language of the Intenm award. That decIsIOn holds coverage under the collectIve agreement ends wIth the completIOn of the work assIgned, not wIth the termInatIOn of the work stoppage I am not persuaded by the umon's alternatIve argument because It IS InCOnsIstent WIth the rulIng In OP SEU (Cousins) and Ministry of Solicitor General and Correctional Services decIsIOns dated July 23 1996 GSB File No 822/96 whIch was adopted In the Intenm award. In Cousins Vice-Chair Roberts wrote In my OpInIOn, the date upon whIch the employer "determIned" that the gnevor would be used to perform emergency servIces work was the date upon whIch she was scheduled to work dunng the stnke, i e March 20 1996 Prior to that date there lJ,as too much uncertainty The grievor lJ,as just one among a number of employees deemed qualified to perform such lJ,ork. She might never have been called upon to lJ,ork during the strike Once the grievor lJ,as scheduled to lJ,ork, hOlJ,ever all uncertainty came to an end The employer had "determIned" to use the gnevor to perform emergency servIces work wIthIn the meamng of the "CondItIOns" agreement. From that date until the completion of performance of the lJ,ork, the provisions of the collective agreement applied to the grievor (page 5 emphasIs added) ApplIed to the hypothetIcal employee descnbed above, thIS passage means coverage under the collectIve agreement would end when the scheduled work was completed on March 27 The reason the collectIve agreement would not apply after that date IS that no further emergency work had been assIgned before then and there was "too much uncertaInty" as to whether any would be assIgned later In summary the Intenm award IS hereby clanfied to mean an emergency worker was covered by the collectIve agreement In the Interval between beIng scheduled or called back to work and completIng all outstandIng ShIftS so assIgned What are the ImplIcatIOns of these clanficatIOns for entItlement to holIday pay? The collectIve agreement has no applIcatIOn to an emergency worker on Good Fnday or Easter Monday If the holIday dId not fall between the employee beIng scheduled or called back to work and the completIOn 4 of all of the work already assIgned. Foran emergency employee not covered by the collectIve agreement on Good Fnday or Easter Monday there could be no entItlement under the agreement to holIday pay for that day II If an emergency employee was covered by the collectIve agreement on Good Fnday or Easter Monday hIS or her entItlement to holIday pay would be governed by the terms of the agreement. Also governed by these terms IS entItlement to holIday pay In the case of an employee who preformed essentIal servIces dunng the stnke ProvIsIOns relatIng to holIday pay are found In the central collectIve agreement and In the agreements for each bargaInIng umt. ArtIcle 47 1 of the central agreement states An employee shall be entItled to the folloWIng paid holIdays each year Good Fnday Easter Monday As the holIday provIsIOns are the same In the agreements for all bargaInIng umts, I need refer only to the provIsIOns for the admInIstratIve umt ADM 13 .2 In addItIOn to the payment provIded by ArtIcle ADM13 1 [for tIme spent workIng on the holIday] an employee lJ,ho lJ,orks on the holiday shall receive either seven and one-quarter (7 1 4) or eight (8) hours pay as applicable at his or her basic hourly rate or compensating leave of seven and one-quarter (7 1 4) or eight (8) hours as applicable provIded the employee opts for compensatIng leave pnor to the holIday ADM13 4 When a holIday Included under ArtIcle 47 (HolIdays) of the Central CollectIve Agreement cOIncIdes wIth an employee's scheduled day off and he or she does not lJ, ork on that day the employee shall be entitled to receive another day off (emphasIs added) ArtIcle ADM13 2 governs employees who work on a holIday and artIcle ADM13 4 governs those not workIng that day III Counsel for the employer contends employees who dId not work on Good Fnday or Easter Monday because theIr hours of work had been reduced dunng the stnke, are not entItled under the collectIve agreement to compensatIOn In recogmtIOn of that holIday In support of thIS argument, counsel relIes upon the wordIng of artIcle ADM13 4 and management's polIcy relatIng to holIdays 5 ArtIcle ADM13 4 refers to a holIday fallIng on "an employee's scheduled day off" In determmmg the meamng of "scheduled day off' the employer relIes upon artIcle ADM3 1 ADM3 1 There shall be two (2) consecutIve days off whIch shall be referred to as scheduled days off, except that days off may be non-consecutIve If agreed upon between the employee and the mImstry Counsel for the employer reads thIS provIsIOn as meamng an employee has only two "scheduled days off' per week. Accordmg to thIS mterpretatIOn, non-workmg days m excess of two are days of leave and not scheduled days off Counsel submIts employees workmg fewer days than normal dunng the stnke, who dId not work on Good Fnday and Easter Monday were on leave those days and, therefore, are not entItled to holIday compensatIOn. Umon counsel contends artIcle ADM3 1 should not be construed as precludmg three or more scheduled days off m a week, because the purpose of thIS artIcle IS merely to ensure employees have a mImmum of two consecutIve days of rest. I agree wIth thIS purposIve mterpretatIOn. The employer also relIes upon the passage m ItS Manual of AdmmIstratIOn statmg holIday pay IS not owmg "where a statutory holIday occurs dunng a leave-of-absence wIthout pay unless the leave IS due to sIckness or mJury " No eVIdence was led as to how thIS polIcy has been consIstently applIed and, If so whether umon officIals acqUIesced m such consIstent applIcatIOn. As suggested by umon counsel, m the absence of eVIdence relatmg to these matters, management's polIcy IS of no assIstance m mterpretmg the collectIve agreement. IV The holIday provIsIOns m the collectIve agreement do not explIcItly address the entItlement of an employee to pay for a holIday OCCUrrIng when he or she IS workmg reduced hours, but these provIsIOns should be construed wIth an eye to theIr underlymg purposes as elucIdated by the arbItral Junsprudence There may be no case law on whether employees workmg dunng a stnke are entItled to holIday pay under a collectIve agreement, because such an agreement tYPIcally does not apply dunng a work stoppage However there IS a substantIal body of cases dealIng wIth pay for holIdays fallIng when an employee IS laid off or absent due to sIckness or mJury In my VIew these cases about entItlement to holIday pay on the part of employees temporanly domg no work at all, are mstructIve m determmmg whether employees temporanly workmg reduced hours are entItled to pay for a holIday ThIS arbItral Junsprudence was not cIted by counsel, but I would be remISS to Ignore It. 6 In Andres Wines (B C ) Ltd and United BrelJ,ery and Distillery Workers (1977), 16 L AC (2d) 422, Professor Weller as Chair of the BntIsh ColumbIa Labour RelatIOns Board, provIded a thorough and conCIse reVIew of the evolvIng arbItral Junsprudence to date A qUIck glance through the arbItratIOn reports does IndIcate how often arbItrators are called on to examIne and to re-examIne thIS one essentIal Issue whether and to what extent a temporanly absent worker IS entItled to claim tangIble benefits under a collectIve agreement. After 25 years of SIftIng and refimng that problem, a number of doctnnes have emerged In the arbItratIOn Junsprudence What IS the legal status of such doctnnes? They are pnncIples for the InterpretatIOn of the collectIve agreement. By that, I mean that they are Instruments whIch are avaIlable to an arbItrator as a supplement to the explIcIt language drafted by the partIes, gUIdIng arbItrators as they define the contours of a general contract term when It encounters such an apparently unantIcIpated case As regards thIS general approach to the admInIstratIOn of the collectIve agreement, counsel for both partIes In thIS case were ad Idem But they dIffered wIth respect to the appropnate pnncIple to be dIstIlled from the arbItral Junsprudence about the substantIve Issue raised by thIS gnevance That dIsagreement IS qUIte understandable When one examInes the Junsprudence closely It IS apparent that there have been consIderable changes and there remaIn consIderable dIvergences In the VIews of CanadIan arbItrators At an early stage In CanadIan arbItratIOn, the cases took a restnctIve VIew of those who were entItled to fnnge benefits under the collectIve agreement. Such benefits were to be confined to actIve employees, those currently at work and In receIpt of wages ThIS conclusIOn was emphasIzed partIcularly In cases dealIng wIth employees on lay-off [The Board here quoted from Re Robbins & Myers Co Ltd and UA. W (1959),9 L AC 273 (Cross) at p 274] Eventually that thesIs appeared too sImplIstIc to arbItrators CollectIve agreements were becomIng more SophIstIcated, creatIng more and more fnnge benefits, and permIttIng more and more reasons for absence from work. It mIght appear qUIte unfair and InCOnsIstent WIth the expectatIOns of the partIes that, for example, someone InJured for a month and on compensatIOn should ImmedIately go off the health and welfare plan. ArbItrators gradually emphasIzed the fact that employment IS a legal status, one whIch contInues throughout any pen ods of temporary absence untIl It IS termInated by the posItIve and legal act of eIther the employer or the employee [The Board here quoted from Re Municipality of Metropolitan Toronto and C Up.E. Local 43 (1972), 24 L AC 318 (Weller) at pp 320-1 ] In any event, the pendulum has now swung In the other dIrectIOn and many arbItrators take the VIew that the general term "employee" In a contract provIsIOn IS not to be read as lImIted to the actIve employee It Includes anyone who IS In a legal employment relatIOnshIp whIch has not yet been properly severed under the contract. And If the IndIVIdual IS legally an "employee" he thereby wIll be entItled to all the benefits provIded by the collectIve agreement to employees [The Board here quoted from Re York Farms Division of Canada Packers Ltd and United Packinghouse Food & Allied Workers, Local 469 (1970) 21 L.AC 188 (SchIff) at pp 191- 2] That pnncIple has been applIed to such benefits as statutory holIdays and health and welfare premIUms, and to cases of absence from work by reason of Illness, InJury a pIcket lIne or a lay-off The Umon relIed on that pnncIple In presentIng ItS case to the arbItrator and asserted every one of the employees on lay-off should be entItled to all of these contract benefits But It IS apparent In the recent arbItratIOn reports that arbItrators have become troubled wIth the potentIal ImplIcatIOns of that VIew By and large, the earlIer cases dealt wIth short- 7 term absences, those wIth readIly-perceIved tIme frames It dId not seem that unrealIstIc to allow such a temporanly absent employee to claim health and welfare premIUms In the Intenm But later cases have stretched that pnncIple to extreme lImIts e g. employees absent from work for over a year by reason of an InJury and In receIpt of workers' compensatIOn benefits throughout that penod, may claim 10 or 11 statutory holIdays fallIng dunng that year ArbItrators eventually have realIzed that the answer to thIS problem does not lIe solely In a Judgment about whether the gnevor remaInS legally an employee (especIally sInce It IS not that easy to JustIfy the dIsmIssal of an employee by reason of a sIngle, long-term absence) Instead, the real questIOn IS whether one may reasonably Infer that thIS kInd of employee was Intended by the partIes to enJoy the contract benefit In questIOn. [The Board here quoted from Re Northern Electric Co Ltd and UA. W Local 1535 (1972) 1 L.AC (2d) 310 (Weathenll) at p 312 ] For example, It IS ObVIOUS that an employee absent on leave would not normally be entItled to receIve wages under the wage schedule Why? Because the partIes Intend that the employees earn wages In return for theIr servIces whIch are of benefit to theIr employer But anyone acquainted lJ, ith collective bargaining realizes that fringe benefits are equally a part of the compensation package and are costs incurred by the employer as payment for productive lJ,ork peljormed by employees in its operations One can still appreciate that contract benefits such as health and lJ, e !fare premiums may be designed so as to afford protection to the employee for some period of time during lJ, hich he is absent from lJ, ork. But arbitrators recently have been groping for a test lJ, hich lJ, ill place some time-limit on the duration of that benefit, in order to preserve a reasonable nexus beflj,een the lJ,ork performed and the benefit claimed (pages 425 to 429 emphasIs added) In the end, the Labour RelatIOns Board sustaIned an arbItratIOn award holdIng employees temporanly laid off, some for "several months" (page 423) were entItled to pay for holIdays OCCUrrIng dunng the layoff The decIsIOn In Andres Wines would seem to IndIcate the Issue to be determIned here IS whether there eXIsts a "reasonable nexus" between the holIday pay claimed and the performance of work, In the case of employees covered by the collectIve agreement on Good Fnday or Easter Monday A final rulIng on whether the eXIstence of such a nexus should be the determInIng factor and on whether thIS sort of nexus does eXIst In the cIrcumstances, would be premature untIl the partIes have had an opportumty to make submIssIOns on these two questIOns Dated at Toronto Ontano thIS 20th day of October 2003 ~~ I Richard Brown, Vice-Chair