HomeMy WebLinkAbout1978-0116.Bell.80-02-15“, .<-’ ”
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=, ONTARIO
CROWN tMP‘O”EES
GRIEVANCE
SETTLEMENT BOARD
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Mr. Thcmas Bell (Grievor)
And ,.
The Crown in Right of Ontario
Ministry of Community and
Social Services ~. (Employer),
Before: Prcf. K. Swinton
Mrs. M. Gibb
: ;;;;e;hairman
Mr. B. Switzman - Member
For the Grievor:
Ms. M. Mercer-de-Santis
Grievance Officer
Ontario Public Service Employees Union
For the Employer:
Mr. A. R. Rae
Personnel Representative
Personnel Services Branch
Ministry of Community & Social Services
Hearing:
December 12, 1979
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This'is a grievance involving holiday pay. The grievor,
Thomas Bell, claims that he has been improperly denied holiday
payment under the Working Conditions Collective Agreement
(February 1, 1978 - January 31, 1979 - Ex. 1).
The'grievancanecessitates consideration of several
provisions of the Working Conditions and Benefits Agreements, for
it requires the Board to determine the interaction between the
call-back provision in Article 14 and the holiday payment provisions a.
in Article 19. '
The grievance arises out of a call-back to,work.on ,\
,. Easter Monday, March 27; 1978-i "The grievor is a plumber in the : r
Maj,ntenance Department of Huronia RegionaT.,Centre. OnEaster
'. '.weekend .in 1978';~.he was, assigned to on-call' duty pursuantto~:' .,.I:~ ,":I., ..:..
~1 Article'16 of the'collective agreement.:' Under that article fan '1 ,: ,'~ I
I',~ '1, employee-is,,paid.25$,per~hour for then period oftime when~ her is': ,~. :
requir&to be %&~nabl~'&&labl~ for ~ecalllt&wrk"~~ :The
grievor,~normallyworks fan eight-hour shift from Monday to. Friday. :. .:,.,: :
On GoodFriday, March'24, the griever:wasca71ed back to '.
work three times. He received credit for 12 hourswork at time
and one-half (or 18 hours pay) pursuant to Article 14.1. ThBt-
Article reads:~,
ARTICLE 14 - CALL EACK
14.1 m employee who leaves his place of work
'~a& is subsequently called beck to work
prior to the starting time of his next scheduled
shift shellbepeidamini.mum of four 14) hours pay
at one end one-half (1%) tines his basic hourly rate.
On Easter Monday, which is one of the specified holidays
under Article 9.1 of the Benefits Agreement, another emergency
occurred, and the grievor was required to return to work for a
period of 2% hours. He was then paid for four hours work at
time and one-half (that is, six hours pay) pursuant to Article
14.1.
The grievor claims that he should have received credit
for eight hours work at time and one-half (that is, twelve hours
pay) pursuant td Article 19.1 of the collective agreement.
That Article reads:
ARTICLE 19 - IiOJXLXY PAYXENT
19.1 Where an employee works on a holiday included
under Article 9 of the Employee Benefits
Agreement, he shall be paid at the rate of time and one-
half (lk) for all hours wvrked with a minimum credit of
seven and one guarter (7%) or eight (8) hours, as
applicable.
19.2 In addition to the payment provided by section
19.1, an employee shall receive either seven
and one-quarter (7k) or eight (8) hours pay as applicable
at his basic hourly rate or ccmpsnsating leave of seven
and ooe-quarter (7%) or eight (8) hours as applicable,
provided the employee opts for mqensating leave prior
to the holiday.
19.3 When a holiday included under Article 9 of
the Employee Benefits Agreement coincides
with an employee's scheduled day off and ha does not
work on that day, the employee shall bs entitled to
receive anotberdayoff.
19.4 Any compensating leave accumulated under
seoU.ons 19.2 and 19.3 my be taken off at.
a time mutually agreed upon. Failing agreemen t, such
time off my Lb9 taken in conjunction with the employee's
vacation leave or regular day(s) off.
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19.5 , hy compensating leave accumulated under
sections 19.2 and 19.3 in a calendar year
which is not used before March 31 of the following
year shall be paid at the rate it was earned. Effec-
tive March 1, 1978, the March 31 date rosy be extended
by agreement at the local or Ministry level.
19.6 Notwithstandiny anything in Article 19,
employees who are in classifications
assigned to Schedule 6, who are required to work on
their day off 02 on a holiday included in Article 19
of the Employee Benefits Agreement, shall receive
equivalent time off.
The grievor received eight hours pay for compensating
'leave pursuant to Article ~19.2 for each of the two holidays on
which he worked.
It is the grievor's contention that the call-back provision
.~ in Article 14 is only a minimum guarantee of compensation for the
~employee. Where there is another provisionin the collective
agreement which is more beneficial to the employee, then it should '
be open to the individual to obtain that superior benefit. Hence,
Article 19.1 should'apply to the work.perfoned on Easter Monday.
The employer has argued that there~is no option for the
employee to choose between callAback and holiday payments. Article
14 should prevail in al! call-back situations, regardless of whether
they occur on statutory holidays.
The wording of Articles 14.1 and 19.1 does not assist in
the resolution of this grievance. Both are phrased in mandatory
terms, stating that the employee m.alim receive the minimum compen-
sation specified. Nothing in the wording of either article indicates
when that article is to prevail over other provisions.
It is important, therefore, to look to the purpose of the
two provisions. Call-back pay is a premium payment negotiated in
:
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order to protect an employee who is called back to work at
irregular times outslde his normal working hours. The requirement
that the employer pay a certain minfmum amount has ~a dual purpose: to
compensate the employee for the personal inconvenience and travelling
expense caused by the call-back and to restrain the employer from
calltng employees back to work unless it is important to do SO
(Re Webster Manufacturing (London) Ltd. 11971), 23 L.A.C. 37 Ih'eiler) ,-
at 40; Re Shell Canada (1974), 6 L.A.C. (2d) 422 (O'Shea)).
Premium payments for holiday work are designed to achieve
the same purposes - to compensate the employee at a bonus rate for,
work performed on a holiday to which he is entitled by the collective
agreement or by statute and to discourage the employer from demanding
such work unless necessary or important. The importance of the entitle-
ment to statutory holidays is well described in Re Sealed Rower carp. of
Canada Ltd. (1971). 22 L.jl.C. 371 at 373 lShin!e) aS fOllOWS:
Whatever the orfyinal social or religious reasons,
certain statutory holidays are ROW a basic part of
the Canadian industrial fabric and employees expect to
receive the statutory holiday with paymnt or added
compensation to their usual wage rate if they mrk on
that day, while employers anticipate yranting the
statutory holiday or paying compensation in addition
to the usual wage rate if they require their employees
.to work on those days...... In nvst cases certain
statutory holidays have become so entrenched that an
employee will consider the day off with pay as a riyht
rather than a privilege. The holiday is as an oppor-
tunity to engage in social or religious activity without
loss of income, but it is also viewed as an opportunity
for relief from the normal work pat$ern and its attend-
ant DIQSSUreS .
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In th'is collective agreement,,the employer must not only compensate for
a guaranteed number of hours-for holiday work at premium rates, but must.
also provide compensating leave or ~equivalent pay,for the day which would
have been taken as compensating leave (ArticJe 19.2).
The issue to be determined here is whether an employee called
back to work on a holiday should receive the minimum-compensation
guaranteed by the call-back clause or the minimum guaranteed by the
holiday payment clause. The purpose of the two provisions being similar,
it.is important to look at the way in which the parties.seek to apply them
in order to determine whether these purposes are adequately met. An
employee who is regularly scheduled to work on a holiday is guaranteed .~
a full day's pay at time and one-half by Article 19.1, evenif he only
works a few hours on that day. 'An employee on.'call-back,'who'is called:
back to work on a normal weekday ore weekend, would receive a~ guarantee
of compensation for four hours'~ work at time and one halff4n order to
compeneate for the'inconvenience and expense caused,by being called
‘, in to work after he had left the workplace. ,When the employee is called
back to work,on a day that~:is,a holiday, it is arguable that he suffers '~
an added inconvenience - that caused by the call back, plus that caused ~'
by having to work on the holiday.
The employer has recognized this added disruption to some
extent by giving the.grievor here the benefit of additional pay for
compensating leave pursuant to Article 19.2. The employer refuses,
however:, to pay the eight hours guaranteed by Article 19.1.
Arbitrators are always cautious to avoid an interpretation of
the~collective agreement which will result in the pyramiding of premium
payments, and Article 21.1 of the Working Conditions Agreement specifically
! prohibits pyramiding. It should be emphasized that this is not what the
&ievor seeks. He does not seek to duplicate premium payments; rather, I
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he seeks the advantage of the superior benefit provision in the agreement.
Other arbitration awards have recognized an employee's right to do this.
For example, in Re Inylis Ltd. (19741, 6 L.A.C. (Zd) 288, PrOfeSSOr
Johnston held that an employee could rely on the particular overtime.
provision in the collective agreement which provided the superior benefit
(at 291). In that case, he was dealing only with overtime clauses.
Although the grievance at hand does not deal only with overtime *
provisions, it does deal with premium payments which have similar
purposes - that is, to compensate the employee at bonus rates for work
done outside the regularly scheduled working hours. Both Articles 14.1
and 19.1 are phrased as minimum payment provisions. In situations
where the holiday payment provision in Article 19.1 provides a superior
benefit, it would seem approprfate to adopt the approach used in the
s case,,s_upra, and allow the employee to rely on the provision
providing the superior benefit. The employee called back to work on
a holiday suffers the double inconvenience of the call-back and the
necessity of working on the holiday. He should not be required to
accept less compensation than the employee scheduled to work on that
holiday who may only work a few hours but who would still be guaranteed
k or 8 hours work, as appropriate.
Therefore, the grievance is allowed. The Board will retain
jurisdiction to deal with any problems of compensation arising out of
the impl,ementation of this award.
Dated at Toronto this 15th day of January , l%O.
I concur
Mrs. h. Glbb Member
I concur
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