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HomeMy WebLinkAbout2003-2857.Ginn.05-02-22 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# 2003-2857 2003-3651 UNION# OLB510/03 OLB009/004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (GInn) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Damel A. Hams Vice-Chair FOR THE UNION Graham WillIamson Koskie Minsky LLP Bamsters and SOlICItorS FOR THE EMPLOYER Gordon FItzgerald Counsel LIqUor Control Board of Ontano HEARING February 16 2005 2 DeCISIon The Proceedings ThIS IS a gnevance filed by the Ontano LIqUor Board Employees' UnIon (hereafter "OLBEU" or "the unIon") on behalf of Danny GInn (hereafter "the gnevor") The gnevor IS a MaIntenance ServIce Person at the Durham RetaIl ServIce Centre operated by the LIqUor Control Board of Ontano (hereafter "the LCBO" or "the employer") OLBEU says that It IS a vIOlatIOn of the collectIve agreement between the partIes not to pay the nIght ShIft premIUm for overtIme ShIfts worked on the weekend. The Facts The partIes filed the folloWIng "Agreed Statement of Facts" The PartIes agree that the followmg facts and documents are agreed to for the purpose of thIS ArbItratIOn before ArbItrator Dan Hams commencmg on Februan 16 2005 The PartIes agree that the followmg facts and documents are agreed to for the purpose of thIS ArbItratIOn onh and are wIthout precedent or prejUdICe to an, further or other matter between the PartIes The PartIes reserve the nght to call such further and other eVIdence as ma, be necessan to augment thIS Agreed Statement of Facts, but m no event shall the, call eVIdence that contradIcts the facts agreed to herem. 1 Dann, Gmn, the Gnevor IS a permanent full tIme employee m the bargammg umt employed at the Durham RetaIl ServIce Centre whIch IS one of the Employer's lOgIStICS facIlItIes Mr Gmn IS employed as a Mamtenance ServIce Person and hIS hours of work rotate among the three ShIftS set out m ArtIcle 6.2(a)(1l) of the CollectIve Agreement. He rotates among the three ShIftS m accordance wIth the ShIft rotatIOn set out m ArtIcle 6 14 of the CollectIve Agreement. 2 In addItIOn to hIS regular hours, the Gnevor was offered the opportumn to work overtIme on the followmg Saturdays November 8 and 15 2003 August 23 2003 and September 27 2003 On each of those days the Gnevor dId, m fact, work overtIme from 1201 a.m. Saturda, to 8 00 a.m. Saturda, In each case the Gnevor was workmg the mght ShIft set out m ArtIcle 6.2(a)(1l) of the CollectIve Agreement on the Monda, through Fnda, ImmedIateh precedmg the Saturdays m questIOn. 3 The Gnevor was paid an overtIme premIUm for workmg the ShIftS set out m paragraph 2 and was paid at the rate of one and one-half the normal hourh rate as reqUIred b, ArtIcle 6 6(a) of the CollectIve Agreement. 3 4 The Umon on Its own behalf, and on behalf of the Gnevor have filed two gnevances whIch allege that the Employer has breached the CollectIve Agreement b, faIlmg to pa, the Gnevor the mghtshIft premIUm set out m ArtIcle 6 15 (b) of the CollectIve Agreement. CopIes of the Gnevances are attached at Tabs l(a) and (b) 5 The Employer has demed the Gnevances 6 Without prejUdICe to an, further or other matters between the PartIes, the Employer agrees that there are no tImelmess Issues WIth respect to the filIng of the Gnevances The relevant provIsIOns of the collectIve agreement are as follows 6.2 (a) The Employer shall prescribe the number of hours m each workmg da, not exceedmg eIght (8) hours for the vanous departments or establIshments of the Employer Normal hours of work wIll be as follows (I) Retail- Stores and Depot The work week for stores shall be from 1201 a.m. Monda, to 1200 mIdmght Saturda, (iI) LOgIStICS - FacilItIes and Pnvate Stock The work week for FacIlItIes and Pnvate Stock shall be from 1201 a.m Monda, to 1200 mIdmght Fnda, NIght (1/2 hr unpaid lunch) ShIft 8 20 p.m to 4 20 a.m (V AX System Operators) 11 00 p.m to 7 00 a.m (Secunt,) 11 45 p.m to 7 45 a.m (Durham FacIlIt, - Tiers and Tunnels onh) 12 00 mIdmght to 8 00 a.m (other employees) FIfteen (15) mmute rest penod dunng each half ShIft. (111) LeBO Head Office and Warehouse Offices (Monda, through Fnda, mclusIve) Between 7 30 a.m. and 9 30 a.m. to between 3 30 p.m. and 5 30 p.m. ReceIvmg/ShIppmg/Order Processmg Offices Only (Durham Warehouse) (Monda, through Fnda, mclusIve) 4 Secunty Staff at the Head Office Desk Secunt, staff at the Head Office desk shall be scheduled as follows on a seven (7) da, schedule (IV) Toronto AIrport Stores The work week for stores shall be from 1201 a.m. Monda, to 1200 mIdmght Saturda, (v) Retail POS/Help Desk The work week for the POS Help Desk shall be Monda, to Saturda, mclusIve POS Help Desk hours of work shall not be changed further wIthout negotIatIOn WIth the Umon. (VI) Head Office eomputer Operators (Monda, through Fnda, mclusIve) 66 (a) Authonzed work performed m excess of the employee's normal work da, shall be paid at the rate of one and one half (1 1/2) tImes the normal hourh rate of the employee unless otherwIse provIded m thIS Agreement. All work performed on an, second consecutIve da, of overtIme shall be paid at double the employee's normal rate of pa, It IS understood that an employee IS to receIve double rates when the employee works on the employee's second scheduled da, off. 6 15 (a) An employee shall receIve a shIft premIUm of one dollar ($1 00) per hour for all regular hours worked between 6 00 p.m. and 7 00 a.m Where more than fifu percent (50%) of the hours, mclusIve oflunch and rest penods, fall wIthm thIS penod the premIUm shall be paid for all hours worked. (b) An employee workmg on the mght ShIft as defined m 6.2 (a) above shall be paid a premIUm of two dollars ($2 00) per hour for each hour worked. (c) An employee who works the mght ShIft and receIves the premIUm set out m (b) above shall not also be elIgible for the premIUm set out m ArtIcle 6 15(a) (d) ShIft premIUm shall not be consIdered as part of an employee's basIc hourh rate 5 The Submissions of the Parties OLBEU noted that the gnevor on four occaSIOns, had worked the nIght ShIft from Monday to Fnday and then worked the same shIft the next day He receIved the nIght ShIft premIUm for the ShIftS worked Monday to Fnday He dId not, but should have, receIved the premIUm for the Saturday ShIft as well It concedes he receIved the overtIme rate for the Saturday shIft, but says that nothIng In the collectIve agreement bars hIm from reCeIVIng the nIght ShIft premIUm as well OLBEU submItted that thIS matter raises a pure questIOn of contract InterpretatIOn In the context of a straightforward, undIsputed fact sItuatIOn. AccordIngly no questIOn of onus or burden of proof applIes The two dIfferent InterpretatIOns must be resolved on the basIs of accepted canons of constructIOn set out In Brown and Beatty at page 4-43as "the purpose of the partIcular provIsIOns, the reasonableness of each of the InterpretatIOns, the admInIstratIve feasIbIlIty and whether one of the possIble InterpretatIOns would gIve nse to anomalIes" Those canons of constructIOn need to be consIdered agaInst the backdrop of the rule agaInst pyramIdIng. The UnIon revIewed the Junsprudence on thIS Issue and submItted that the earlIest cases faIled to dIStIngUISh between the dIStInCt purposes of shIft premIUms and overtIme premIUms Subsequently arbItrators recognIzed these dIStInCt purposes and found that there was no pyramIdIng of benefits If both premIUms were found OWIng. That IS, the presumptIOn agaInst pyramIdIng was rebuttable where the underlYIng purpose of each premIUm was dIfferent and no specIfic language In the collectIve agreement prevented the payment. The UnIon said that thIS analysIs IS now so IngraIned that It IS presumed that the payment of overtIme and a ShIft premIUm IS not pyramIdIng and It reqUIres specIfic language In a collectIve agreement to oust that 6 presumptIOn. In VIew of the language of the mstant collectIve agreement, both premIUms are payable m these CIrcumstance The umon asks for a declaratIOn that both premIUms are payable, an order that the gnevor be made whole and that I rem am seIsed wIth respect to ImplementatIOn. OBLEU relIed upon the followmg authontIes Ontario Liquor Boards Employees Union (Cheng) and Liquor Control Board of Ontario GSB No 1328/00 (Abramsky Vice-Chair) Ontario Liquor Boards Employees Union (Pallotta) and Liquor Control Board of Ontario GSB No 1185/00 (DIssanayake Vice-Chair) Canadian Labour Arbitration Third Edition Canada Law Book, Brown and Beatty 932400 942000 982140 Grey County Board of Education and o s.s. TF District 23 (1983) 12 L.AC (3d) 412 (TeplItsky) Borden Chemical Co (Canada) Ltd and Allied and Technical Workers Local 13491 (1973), 3 L.AC (2d) 383 (Weatherhlll) Texaco Canada Ltd and Oil, Chemical & Atomic Workers Local 9-599 (1975) 10 L.AC (2d) 221 (ShIme) Associated Freezers of Canada Ltd and Teamsters Union, Local 419 (1979),23 L.AC (2d) 40 (Burkett) The LCBO submItted that the umon's gnevance ought to fall for any or all, of three reasons FIrst, the shIft worked on Saturday was not a "mght ShIft" as set out m artIcle 6 15(b) and defined by artIcle 6.2(iI) The defimtIOn of "mght ShIft" m artIcle 6 2(iI) IS dependant on the overall defim tIOnal structure of artI cl e 6.2( a) WhI ch lImIts the understandmg of the van ous ShIftS set out. Those ShIftS pertam to "normal hours" as fallIng between 12 01 am Monday to 1200 mIdmght Fnday thereby excludmg week-end hours That IS, there are no weekend shIfts per se Second, If the ShIftS worked on the Saturdays m questIOns were "mght-shIfts" nonetheless, artIcle 6 15(b) IS a mere modIfier of artIcle 6 15(a) whIch lImIts shIft premIUms to "regular hours 7 worked," whIch excludes overtIme hours Further no dIstInctIOn may be drawn between "regular hours" set out In 6 IS(a) and the phrase "normal hours" whIch IS used to define the ShIft tImes set out In 6 02 Both IndIcate an IntentIOn to exclude overtIme hours as tIme that mIght also attract ShIft premIUms The LCBO said that the only reasonable InterpretatIOn of artIcle 6 IS (b) IS to exclude ItS applIcabIlIty to overtIme hours OtherwIse, only the tIme penod of 1200 to 8 00 am could qualIfy for the premIUm There are no restnctIOns on the LCBO's nght to schedule weekend hours and the artIcle 6 IS(a) ShIft premIUm clearly applIes only to regular hours not overtIme hours To find that the shIft premIUm only applIes to the nIght shIft would produce an unreasonable and anomalous result that could not have been Intended by the partIes The LCBO said that the thIrd basIs upon whIch the gnevance should be dIsmIssed IS that It IS a pyramIdIng of benefits As set out above, there IS clear language In the collectIve agreement that the nIght ShIft premIUm IS not to be paid for overtIme hours It said that the absence of language agaInst pyramIdIng does not establIsh that both premIUms are payable unless the language of the collectIve agreement supports payment of both premIUms In the first Instance It reqUIres clear language to confer an economIC benefit and the language here does not establIsh that IntentIOn. The purpose of the language at Issue IS not to provIde ShIft premIUms for weekend work. The language reqUIred to do so would be much dIfferent and not be lImIted to the 12 to 8 am shIft. The language of thIS collectIve agreement, consIdered as a whole, Intends overtIme and ShIft premIUms to be mutually exclusIve The employer relIed upon the folloWIng authontIes Canadian Labour Arbitration (supra) 9 4 2000 International Chemical Workers, Local 721 and Brockville Chemicals Ltd (1966) 16 L.AC 393 (Weatherhlll) [fA. Wand Gardner-Denver Co (Canada) Ltd (1968), 19 L AC 409 (Palmer) Gerdau Courtice SteelInc and USWA, Local 8918 (2000) 92 L.AC (4th) 314 8 (Weatherhlll) DDM Plastics Inc andI.A.M Local 2792 (2000) 88 L.AC (4th) 299 (Solomatenko) Black s Lffit, Dictionmy re "normal" and "regular" Longo Brothers Fruit Market and UFCW Local 633 (1995) 52 L AC (4th) 113 (Solomatenko) Northern Electric Office Employee Association and Northern Electric Co Ltd (1968), 19 L AC 125 (Weatherhlll) Printing Specialties & Paper Products Union, Local 466 and Interchem Canada Ltd (1969),21 L.AC 46 (Weatherhlll) Burns Meats and UFCW Local 832 (1995) 50 L.AC (4th) 415 (HamIlton) R.WDSU Local 440 andAultMilkProductsLtd (1962), 12LAC 279 (Anderson) Inland Aggregates Ltd and I U OE. Local 955(2002), 106 L AC (4th) 62 (SIms) Canada Post Corp and CUPW(1993), 39 L.AC (4th) 6 (BIrd) In reply the UnIon first said that I should be gUIded by the headIng "nIght shIft" In artIcle 6.2 In order to define the term, whIch does not exclude the days of the weekend. Second, artIcle 6 15 (a) and 6 15(b) are dIStInct, not IntertwIned, provIsIOns Here, artIcle 6 15(b) applIes and IS not lImIted to regular hours It sImply applIes to the nIght ShIft hours as those hours are known to the partIes by the applIcatIOn of artIcle 6.2 ThIrd, the cases relIed upon by the LCBO represent the old law that dId not sufficIently dIStIngUIsh between the two dIfferent purposes of ShIft premIUms and overtIme premIUms Reasons for Decision I have carefully consIdered the submIssIOns of the partIes and the Junsprudence upon whIch each rests In the cases referred to the conclusIOns reached are dependent upon the language of the collectIve agreements there at Issue Of course thIS case also depends upon the language used by the partIes to express theIr IntentIOn as to whether nIght ShIft premIUms ought to be paid for overtIme work performed on the weekends It IS agreed that the gnevor was paid the nIght ShIft 9 premIUm for the days pnor to the four ShIftS In questIOn. Those ShIftS were worked on the folloWIng Saturdays, from 1201 am to 8 00 am It IS agreed that he was properly paid overtIme for those ShIftS The questIOn for determInatIOn IS whether he ought also to have been paid the mght ShIft premIUm. As set out above, any mght ShIft premIUm IS payable by vIrtue of artIcle 6 IS(b) For ease of eXposItIOn, artIcle 6 IS (b) IS agaIn set out as follows (b) An employee workmg on the nIght ShIft as defined m 6.2 (a) above shall be paid a premIUm of two dollars ($2 00) per hour for each hour worked. Clearly In accordance wIth artIcle 6 IS(b) If the gnevor worked the "mght shIft as defined In 6 2(a)" he qualIfies for a premIUm of two dollars ($2 00) per hour for each hour worked. It IS eVIdent that artIcle 6 2(a) sets out the "normal hours of work" It IS agreed that the gnevor's classIficatIOn falls wIthIn "other employees" under 6 2(a) (iI) "LOgIStICS - FacIlItIes and Pnvate Stock" The umon argues that artIcle 6 IS(b) only Imports the "mght ShIft" defimtIOn, thereby excludIng the general purpose of the artIcle, whIch IS to establIsh normal hours of work. The employer looks to the entIre artIcle To determIne whether the reference In artIcle 6 IS(b) to artIcle 6 2(a) reqUIres consIderatIOn of the entIre artIcle or only refers to the bare defimtIOn of "mght shIft" reqUIres that the Interplay between the two artIcles be consIdered wIthIn the context of the provIsIOns as a whole and theIr purposes 10 The umon correctly submItted that some gUIdance to mtentIOn may be gleaned from the headmgs used m the collectIve agreement. ArtIcle 6 IS entItled "Hours of Work and OvertIme" OvertIme IS defined as follows 6.1 For the purpose of thIS ArtIcle (a) "overtIme" means a penod of work computed to the nearest fifteen (15) mmutes and, (I) performed on a regular workmg da, m excess of the regular workmg penod consIstmg of at least fifteen (15) mmutes, or (11) performed on a holIda, or other da, that IS not a regular workmg da, but shall not occur where the work performed IS due to ShIft rotatIOn. (b) The startmg tIme of the work week shall be Monda, 1201 a.m. (c) For payroll purposes, the start of the work week shall be Sunda, at 12 01 a.m. In our case, the overtIme mvolved falls under 6 l(a)(iI) "a penod of work performed on a day that IS not a regular workmg day The gnevor was paid overtIme pursuant to artIcle 6 6(a) (supra) for "work performed m excess of [hIS] normal workday" As set out above and as IS agreed between the partIes, the tIme worked on Saturday was overtIme because It was not a regular workmg day not because It was m excess of hIS regular workmg hours on a regular workmg day As descnbed above ArtIcle 6 2 contmues by defimng the regular workmg days applIcable to vanous categones of employee It IS necessary to define the normal hours of work m order to know when overtIme IS payable Although those days are defined m terms of "normal hours of work" the partIes agreed before me that "regular" and "normal" have the same meamng m the context of artIcle 6 It IS necessary to consIder the overall structure of artIcle 6 2 There are 6 categones of employee for whom the normal hours of work are set out. Withm each category the 11 applIcable ShIftS are set out, IncludIng the nIght ShIft of the gnevor set out In 6.2(a) (iI), reproduced above Clearly the nIght shIft IS defined wIthIn the context of the gnevor's normal hours, not hIS overtIme hours ArtIcle 6 2(a) must be taken as a whole There IS no basIs upon whIch the nIght ShIft definItIOn may be carved out to stand alone for the purposes of artIcle 6 IS (b) ArtIcle 6.2 (a) defines the vanous regular workIng days of the dIfferent categones of employees That IS the definItIOn that IS Imported Into artIcle 6 IS(b) AccordIngly the gnevor would be entItled to the nIght ShIft premIUm If he was workIng the nIght ShIft on a regular work day It IS agreed that he was not workIng on a regular work day AccordIngly he IS not entItled to the nIght ShIft premIUm That conclusIOn IS buttressed by the fact that It harmonIzes the bases upon whIch any ShIft premIUm IS payable under artIcle 6 IS ManIfestly ShIft premIUms payable under artIcle 6 IS(a) are only payable "for all regular hours worked" between 6 00 p.m and 7 00 a.m. That IS, that premIUm would not be payable for overtIme hours worked, whIch are hours worked outsIde regular hours, as set out In artIcle 6 1 above It would be an anomaly If the ShIft premIUm was not payable under 6 IS(a) but was payable for a slIghtly dIfferent tIme penod pursuant to 6 IS(b) 12 The Decision The gnevance IS denIed. It was not a vIOlatIOn of the collectIve agreement not to pay the gnevor the nIght ShIft premIUm for the ShIftS worked on August 23 September 27 November 8 and IS 2003 Dated at Toronto thIS 22nd day of February 200S