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
Ontario Public Service Employees Union (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario (Management Board Secretariat)
Employer
BEFORE
Richard Brown
Vice-Chair
FOR THE UNION
Richard Blair Ryder, Wright, Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER
Kelly Burke Senior Counsel Management Board Secretariat
HEARING
October 1, 2003
DECISION
This policy grievance, filed on behalf of essential and emergency workers, claims they are entitled to holiday pay for Good Friday and Easter Monday, both of which fell during the strike 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 criteria prescribed 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 interim award, dated December 4, 2002, I reached the following conclusions about coverage under the collective agreement:
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.
The collective agreement has no application to an employee who was designated to provide essential services but performed no such work during the strike.
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 strike. (pages 18 and 19)
With respect to the first paragraph, the employer seeks clarification of the meaning 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 summoning employees to work, just as Vice-Chair Roberts did in OPSEU (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 appropriate point at which to trigger application of the collective agreement” (page 4; emphasis added). The meaning 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.
As to when coverage under the collective agreement ends, the interim award says the agreement applies during the period between being scheduled to work and “completing all scheduled work.” In other works, coverage stops when all scheduled work is completed. The parties’ differing 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 union counsel, coverage would continue until the end of the strike, or, in the alternative, until the last shift completed during 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 union’s primary argument must be rejected because it does not fit with the language of the interim 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 union’s alternative argument because it is inconsistent with the ruling in OPSEU (Cousins) and Ministry of Solicitor General and Correctional Services, decisions dated July 23, 1996, GSB File No. 822/96 which was adopted in the interim award. In Cousins, Vice-Chair Roberts wrote:
In my opinion, the date upon which the employer “determined” that the grievor would be used to perform emergency services work was the date upon which she was scheduled to work during the strike, i.e., March 20, 1996. Prior to that date, there was too much uncertainty. The grievor was just one among a number of employees deemed qualified to perform such work. She might never have been called upon to work during the strike. Once the grievor was scheduled to work, however, all uncertainty came to an end. The employer had “determined” to use the grievor to perform emergency services work within the meaning of the “Conditions” agreement. From that date until the completion of performance of the work, the provisions of the collective agreement … applied to the grievor. (page 5; emphasis added)
Applied to the hypothetical employee described 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 interim award is hereby clarified 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 clarifications for entitlement to holiday pay? The collective agreement has no application to an emergency worker on Good Friday or Easter Monday if the holiday did not fall between the employee being scheduled or called back to work and the completion of all of the work already assigned. For an emergency employee not covered by the collective agreement on Good Friday 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 Friday 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 during the strike.
Provisions relating to holiday pay are found in the central collective agreement and in the agreements for each bargaining unit. Article 47.1 of the central agreement states:
An employee shall be entitled to the following paid holidays each year:
… Good Friday… Easter Monday…
As the holiday provisions are the same in the agreements for all bargaining units, I need refer only to the provisions for the administrative unit:
ADM13.2 In addition to the payment provided by Article ADM13.1[for time spent working on the holiday], an employee who works 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 prior 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 work 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 Friday or Easter Monday, because their hours of work had been reduced during the strike, are not entitled under the collective agreement to compensation in recognition of that holiday. In support of this argument, counsel relies upon the wording of article ADM13.4 and management’s policy relating to holidays.
Article ADM13.4 refers to a holiday falling on “an employee’s scheduled day off.” In determining the meaning 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 ministry.
Counsel for the employer reads this provision as meaning an employee has only two “scheduled days off” per week. According to this interpretation, non-working days in excess of two are days of leave and not scheduled days off. Counsel submits employees working fewer days than normal during the strike, who did not work on Good Friday and Easter Monday, were on leave those days and, therefore, are not entitled to holiday compensation. Union counsel contends article ADM3.1 should not be construed as precluding three or more scheduled days off in a week, because the purpose of this article is merely to ensure employees have a minimum of two consecutive days of rest. I agree with this purposive interpretation.
The employer also relies upon the passage in its Manual of Administration stating holiday pay is not owing “where a statutory holiday occurs during a leave-of-absence without pay unless the leave is due to sickness or injury.” No evidence was led as to how this policy has been consistently applied and, if so, whether union officials acquiesced in such consistent application. As suggested by union counsel, in the absence of evidence relating to these matters, management’s policy is of no assistance in interpreting the collective agreement.
IV
The holiday provisions in the collective agreement do not explicitly address the entitlement of an employee to pay for a holiday occurring when he or she is working reduced hours, but these provisions should be construed with an eye to their underlying purposes as elucidated by the arbitral jurisprudence. There may be no case law on whether employees working during a strike are entitled to holiday pay under a collective agreement, because such an agreement typically does not apply during 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 injury. In my view, these cases about entitlement to holiday pay, on the part of employees temporarily doing no work at all, are instructive in determining whether employees temporarily working reduced hours are entitled to pay for a holiday. This arbitral jurisprudence was not cited by counsel, but I would be remiss to ignore it.
In Andres Wines (B.C.) Ltd. and United Brewery and Distillery Workers (1977), 1977 CanLII 2955 (BC LRB), 16 L.A.C. (2d) 422, Professor Weiler, as Chair of the British Columbia Labour Relations Board, provided a thorough and concise review of the evolving arbitral jurisprudence 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 temporarily absent worker is entitled to claim tangible benefits under a collective agreement. After 25 years of sifting and refining that problem, a number of doctrines have emerged in the arbitration jurisprudence. What is the legal status of such doctrines? They are principles 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 appropriate principle to be distilled from the arbitral jurisprudence about the substantive issue raised by this grievance. That disagreement is quite understandable. When one examines the jurisprudence 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 restrictive view of those who were entitled to fringe 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 U.A.W. (1959), 9 L.A.C. 273 (Cross) at p. 274.]
Eventually that thesis appeared too simplistic to arbitrators. Collective agreements were becoming more sophisticated, creating more and more fringe 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 periods 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.U.P.E., Local 43 (1972), 1972 CanLII 1969 (ON LA), 24 L.A.C. 318 (Weiler) 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), 1970 CanLII 1682 (ON LA), 21 L.A.C. 188 (Schiff) at pp. 191-2.] That principle 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 Union relied on that principle 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-term absences, those with readily-perceived time frames. It did not seem that unrealistic to allow such a temporarily absent employee to claim health and welfare premiums in the interim. But later cases have stretched that principle 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 period, may claim 10 or 11 statutory holidays falling during that year. Arbitrators eventually have realized that the answer to this problem does not lie solely in a judgment about whether the grievor 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 U.A.W., Local 1535 (1972), 1972 CanLII 2051 (ON LA), 1 L.A.C. (2d) 310 (Weatherill) 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 with 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 work performed by employees in its operations. One can still appreciate that contract benefits such as health and welfare premiums may be designed so as to afford protection to the employee for some period of time during which he is absent from work. But arbitrators recently have been groping for a test which will place some time-limit on the duration of that benefit, in order to preserve a reasonable nexus between the work performed and the benefit claimed. (pages 425 to 429; emphasis added)
In the end, the Labour Relations Board sustained an arbitration award holding employees temporarily laid off, some for “several months” (page 423), were entitled to pay for holidays occurring during 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 Friday 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 opportunity to make submissions on these two questions.
Dated at Toronto, Ontario this 20th day of October, 2003.