GSB# 2908/02

UNION# OLB486/02

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Control Boards Employees’ Union (Gerrard)

Grievor

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

N. Dissanayake

Vice-Chair

FOR THE UNION

Ursula Boylan Kosky Minsky Barristers and Solicitors

FOR THE EMPLOYER

Rhonda R. Shirreff Heenan Blaikie LLP Barristers and Solicitors

HEARING

April 10, 2003.

DECISION

This is a grievance wherein the grievor, Mr. Gord Gerrard, grieves that he was not paid in accordance with the terms of the collective agreement for the work he performed on November 11, 2002, Remembrance Day.

Article 7 of the collective agreement is titled “Paid Holidays”. The following subsections are material to the dispute between the parties:

7.1 An employee shall be entitled to the following paid holidays each year: New Year’s Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day and any special holiday as proclaimed by the Governor-General or Lieutenant Governor. If, during the term of this Agreement, a public holiday is proclaimed by the Governor-General, such holiday shall be deemed to be a paid holiday.

7.4 In addition to the entitlement to holiday pay, where an employee is required to perform work on a paid holiday (refer to Article 7.1), he/she shall also be entitled to receive payment in the amount of two (2) times their regular straight time hourly rate for all hours worked on the holiday.

7.6 In addition to the entitlement to holiday pay, where an employee is required to report for any period of work on a paid holiday (refer to Article 7.1.), he/she shall be paid a minimum of four (4) hours at two (2) times their normal hourly rate of pay. Where an employee performs work in excess of four (4) hours, he/she shall be entitled to a minimum of the normal daily hours of work at two (2) times their regular hourly rate of pay as set out in the Salary and Classification Schedule.

The facts are not in dispute. Under the collective agreement work on a public holiday is considered voluntary overtime. The grievor, among others, volunteered to, and was scheduled to work on the Remembrance Day in question. It is further agreed that the grievor in fact worked 5½ hours that day. It is common ground that the grievor was paid holiday pay for 8 hours at regular rates as required by article 7.1. The grievor received a further payment for 5½ hours at double time under article 7.4. The union claims that the grievor should have received payment at double time, not for the actual hours worked i.e. 5½ hours, but for 8 hours. In other words, it is the union’s position that the grievor was entitled to be paid, not under article 7.4 (double time for actual hours worked), but under the last part of article 7.6 which prescribes payment for “a minimum of the normal daily hours of work at two times their regular hourly rate of pay”, where the employee works more than 4 hours on a public holiday. If that had been done, the grievor would have received double time for 8 hours, in addition to the holiday pay under article 7.1. The grievor seeks an order for payment of the difference of 2½ hours at double time. The issue then is whether, on the facts of this case, the grievor was entitled to be paid for actual hours worked (5½ hours) at double time under article 7.4, or for his normal daily hours of work (8 hours) at double time under article 7.6.

The employer’s position is that the greater premium payment in article 7.6 is payable only in circumstances where an employee not scheduled to work is required to work at short notice. In the grievor’s case, he was scheduled in advance and he expected to work that day. He did not suffer any disruption of his personal plans by working on the holiday. The employer submits that in the circumstances, the grievor was only entitled to the lesser premium in article 7.4 to be paid double time for actual hours worked.

The union submits that on a plain reading, the language in article 7.6 applies to the facts here. Counsel points out that there is no language in article 7.6 to suggest that it only applies in cases of “call-ins” with short notice, or cases where the employee was required to work unexpectedly. Article 7.6 draws no distinction between scheduled and unscheduled employees. The language used is “required to report”, and the grievor was “required to report” as soon as he agreed to work on the holiday. Therefore, article 7.6 applies.

I agree that article 7.6 read by itself, appears to apply to the facts before me, in that it does not explicitly qualify the entitlement to employees not included in the schedule or to unexpected “call-ins”. However, the difficulty is that on a plain reading, article 7.4 also is applicable to the facts here. If article 7.4 is applied, the grievor is entitled to double time only for the actual hours worked. If article 7.6 is applied, on the other hand, he is entitled to his regular daily hours at double time. The latter provision confers a greater benefit than the former.

In the face of this apparent contradiction between two articles, one must look for an interpretation which is reasonable and makes more sense. Both articles cannot be applied at the same time because they lead to different results. It must be noted that premium payments for working on a paid holiday represent a recognition of the inconvenience and sacrifice resulting when an employee, who otherwise was entitled to take the day off, agrees to work. Extending that same rationalization, it makes very good logic, that greater the inconvenience and sacrifice, greater the monetary reward should be. On that reasoning, I prefer the employer’s position. Where an employee who was not scheduled in advance to work on the holiday agrees to work on that day at short notice, the inconvenience and sacrifice would generally be greater. The employee may, for instance, have to cancel plans he or she had already made for the day. He or she may have to make last minute arrangements such as for child care. In contrast, an employee who was scheduled in advance would have always planned to work on the holiday. The inconvenience and sacrifice, if any, would be less. Thus, it is logical that the parties would intend that the former employee be rewarded with a greater premium than the latter.

This interpretation also draws support from a review of the evolution of article 7.6. That article was first included in the 1989 collective agreement. In previous collective agreements, premium pay for paid holidays, where more than 4 hours of work are performed, was dealt with in a single article along with premium pay for work on days that are not regular working days and work on scheduled days off. Thus, in the 1987 collective agreement holiday premium pay was covered by article 6.10 (a) which read:

6.10(a) Where an employee is required to report for any period of work on a paid holiday (as defined in Article 7) or other day that is not a regular working day, or on his scheduled day off, he shall be entitled to a credit of a minimum of four (4) hours of pay at overtime rates, but where an employee performs work for more than four (4) hours after being so required to report for work, he shall be entitled to a minimum of eight (8) hours of pay at the overtime rate.

That collective agreement also included article 7.4 which then read:

7.4 Where employees are required to perform work on a paid holiday (refer to Article 7.1) such employees shall be entitled to receive payment in the amount of three (3) times their regular straight time hours rate for all hours worked on such holiday.

At the time there was no provision corresponding to the current article 7.6. Article 6.10 stipulated that a minimum of 8 hours at overtime rates be paid to employees in several situations where he/she works more than 4 hours on a day not scheduled, including a paid holiday. Starting with the 1989 collective agreement, however, the parties carved out the situation where an employee is required to work more than 4 hours on a paid holiday from article 6.10, and included a separate provision, article 7.6, to deal with that. However, article 7.4 was continued, resulting in the inconsistency between articles 7.4 and 7.6.

The interpretation advocated by the employer resolves the inconsistency between articles 7.4 and 7.6 on a reasonable and logical basis. On the other hand, the interpretation urged by the union, in effect, renders article 7.4 redundant. In the circumstances, I prefer the former interpretation.

For those reasons I conclude that there has been no breach of the collective agreement and the grievance is hereby dismissed.

Dated this 8th day of May, 2003 at Toronto, Ontario