GSB# 2004-1103
UNION# 2004-0123-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Frame)
Union
- and -
The Crown in Right of Ontario (Ontario Clean Water Agency)
Employer
BEFORE
Deborah J.D. Leighton
Vice-Chair
FOR THE UNION
Jim Paul Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Lisa Compagnone Counsel Management Board Secretariat
HEARING
March 30, 2005.
Decision
Mr. Malcolm Frame, an electrician with OCWA, grieves that he was not paid properly under the provisions of the collective agreement, for work performed when he was called back to work on two occasions on a statutory holiday.
The parties agreed to the following statement of facts:
The Grievor holds a full time classified position as a Maintenance Electrician Foreman with Ontario Clean Water Agency at the Lambton Water Treatment Plan and Pumping System, Sarnia.
In this position the Grievor’s regularly scheduled shift is for 8 hours per day, and 40 hours per week, Monday to Friday.
The Grievor was not scheduled to work on April 9, 2004, Good Friday.
Good Friday is a holiday included under article 47 (Holidays) of the Central Agreement.
On April 9, 2004, the Grievor was called back to work. He worked from 11:00am to 3:30pm to repair pump problems, which were considered to be emergency problems. Prior to leaving work he filled out a callout form which describes the work completed and the time taken.
On April 9, 2004, the Grievor was called back to work a second time. He worked from 5:00pm to 7:30pm on the plant Scada System. Prior to leaving he filled out a callout form, which describes the work completed and the time taken.
For the work performed on April 9, 2004 the Employer compensated the Grievor the holiday pay rate of 8 hours at (2) times his basic hourly rate, in accordance with article UN 13.1 of the Unified Bargaining Unit Collective Agreement.
He was also compensated an additional 8 hours pay at his regular hourly rate, in accordance with article UN 13.2. of the Unified Bargaining Unit Collective Agreement.
As well, he was compensated an additional 4 hours at 1.5 times his basic hourly rate, in accordance with article UN 9.1. of the Unified Bargaining Unit Collective Agreement.
Sheldon Jones, Maintenance Mechanic 3, was also called back to work on April 9, 2004 and was paid callback pursuant to UN 13.1 and UN 13.2.
The Grievor filed a grievance alleging denial of full premium pay as per the Unified Bargaining Unit Collective Agreement.
UNION’S SUBMISSION
The union representative, Jim Paul, argued that the grievor should be paid pursuant to Articles UN13.1 and 13.2 for both call- backs, that is, eight hours at double time plus an additional eight hours twice. He argued that the grievor was called back to work two times on April 9, 2004, a statutory holiday and, therefore, should receive the superior benefit two times. Mr. Paul relied on OPSEU (Bell) and Ministry of Community and Social Services (1979) 116/78 (Swinton) where the board held that an employee called back to work on a statutory holiday should receive the pay for working on a statutory holiday, which is a greater or superior benefit than standard call back pay. Mr. Paul also drew my attention to the purpose of call back and holiday pay as noted in Bell.
Mr. Paul also relied on OPSEU (Elliot) and Ministry of Labour (1999) 1282/97 (Briggs) where the Board held that an employee who was called back to work at 4:45pm until 5:06pm and for a second time at 5:37pm until 6:02pm must be compensated for two call-backs or two four hour periods at time and a half. The board rejected the employer’s argument that paying the grievor twice was pyramiding.
In sum, Mr. Paul submitted that applying the principles of Bell and Elliot, the grievor should be paid holiday pay twice for the two call-backs on April 9, 2004.
EMPLOYER’S SUBMISSION
Counsel for the employer, Lisa Compagnone, submitted that the grievor had been paid properly pursuant to Articles UN 13.1 and 13.2. She stated that the grievor actually worked a total of 7.5 hours on April 9. Since the grievor met the criteria for both call-back pay and holiday pay, he received holiday pay. Counsel also noted that in this case the grievor was paid for the second time he was called into work for 4 hours at one and a half times his hourly rate in accordance with Article UN 9.1, the call-back provision. She noted that it was not necessary for the employer to make this payment, since the grievor was adequately compensated for both call-backs by receiving the superior holiday pay benefit for the first call-back.
Ms. Compagnone argued that the union's position blurred Article UN 9 and Article UN 13.1. She argued that where an employee qualifies for two benefits then he or she is entitled to the superior benefit. In this case, the superior benefit was under Article UN13.1 and 13.2. Counsel also argued that the union's position would result in pyramiding of benefits, which is not permitted under the collective agreement. She relied on the following cases in support of her submission: OPSEU (Bell) and The Crown in Right of Ontario (Ministry of Community and Social Services) (1979) GSB 116/78 (Swinton); OPSEU (Tocher) and The Crown in Right of Ontario (Ministry of Correctional Services) (1979) GSB 149/78 (Weatherill); OPSEU (Kruger et al.) and The Crown in Right of Ontario (Ministry of Correctional Services) (1988) GSB 1569/87 (Delisle); Re: Windsor Western Hospital Centre Inc. and Service Employees Union, Local 210 (1976) 1976 CanLII 2167 (ON LA), 13 L.A.C. (2d) 78 (Weatherill).
DECISION
The issue before me is what the proper pay is under this collective agreement for an individual who is called into work two times on a statutory holiday. The relevant sections of the collective agreement are as follows:
Article UN 9 – Call Back
UN 9.1 An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours pay at one and one-half (1 ½) times his or her basic hourly rate.
UN 9.2 Where an employee is contacted by the Employer outside the workplace prior to the starting time of his or her next scheduled shift in circumstances where such contact is considered to be a “call back to work” but the employee is not required to physically attend at the workplace, the employee shall be paid a minimum of four (4) hours of pay at one and one-half (1 ½) times his or her basic hourly rate. The initial call and any subsequent calls during that same four-hour period will be treated as a single “call back to work” for pay purposes.
Article UN 13 – Holiday Payment
UN 13.1 Where an employee works on a holiday included under Article 47 (Holidays) of the Central Collective Agreement, he or she shall be paid at the rate of two (2) times his or her basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7 ¼), eight (8), or the number of regularly scheduled hours, as applicable.
UN 13.2 In addition to the payment provided by Article UN 13.1, an employee who works on the holiday shall receive either seven and one-quarter (7 ¼) or eight (8) hours pay as applicable at his or her basic hourly rate or compensating leave of seven and one-quarter (7 ¼) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday.
Article UN 15 - Non-Pyramiding of Premium Benefits
UN 15.1There shall be no duplication or pyramiding of any premium payments or compensating leave provided by the Central Collective Agreement or any Bargaining Unit Collective Agreement as listed in Article 1 (Recognition).
The issue of how an employee is to be paid under this collective agreement when he or she is called back to work on a statutory holiday was decided in Bell (supra). In that case, the grievor was called into work on an Easter Monday. He worked for two and half hours. The employer paid him pursuant to the call-back provisions of the collective agreement. The grievor claimed that since he had worked on a statutory holiday he was entitled to holiday pay. The board looked at the purpose of call-back and holiday pay:
Call-back pay is a premium payment negotiated in order to protect an employee who is called back to work at irregular times outside his normal working hours. The requirement that the employer pay a certain minimum amount has a dual purpose: to compensate the employee for the personal inconvenience and traveling expense caused by the call-back and to restrain the employer from calling employees back to work unless it is important to do so (citations omitted).
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. (p. 4-5)
The board in the Bell case decided that the grievor was entitled to the superior benefit when he was called back once on a statutory holiday. The superior benefit was holiday pay. The board held:
The employee called back to work on a holiday, suffers the double inconvenience of the call-back, and the necessity of working on a holiday. He should not be required to accept less compensation than an employee scheduled to work on that holiday who may only work a few hours but who will still be guaranteed 71/4 or 8 hours of work, as is appropriate (p. 7).
The issue of how to compensate an employee who is called back to work two times on a day that is not a statutory holiday, but where the call-back times overlap, has also been decided by this board. In Elliot (supra), the board held that the grievor was entitled to be paid for two call-backs, that is, a minimum of four hours pay at time and a half for each call-back. The board held, rejecting the employer's argument that this would result in pyramiding benefits, that Article UN 9.1 provides the four hours pay no matter how long a person actually works during the call-back. The board held "while it is true that the grievor is to be paid twice, there is no duplication because there was two instances of call-back."
In the case before me, the parties agreed in their Statement of Facts that the grievor was called back to work on two separate occasions on April 9. Applying the principles identified in Elliot, I must find that the grievor is entitled to be compensated for two call-backs. The grievor was compensated for the first call-back according to the principles identified in the Bell case. Thus, he was paid according to the superior benefit of the holiday pay for the first call-back. The question is how he should be paid for the second call-back. The employer takes the position that there should be no additional payment for this second call-back, and the union takes the position that the second call-back should be compensated like the first - in other words, the full twenty-four hours.
Having carefully considered the submissions of the parties, I have concluded that the union's position is preferable. The grievor was called back to work two times on a statutory holiday. As Professor Swinton noted in Bell, when an employee is called back to work on a holiday, not only does he suffer the inconvenience of a call-back, but also of having to work on a holiday. In this case, the grievor had the inconvenience of being called back to work twice on a holiday. Thus, the superior benefit was triggered twice. I am not persuaded that this results in a pyramiding of benefit as described in Article UN 15.1. The same argument was rejected in the Elliot case. Arbitrator Briggs quoted and agreed with the reasoning in Re: Board of Trustees of School District No. 39 (Vancouver) and International Union of Operating Engineers Local 963 (1995) 1995 CanLII 18289 (BC LA), 47 LAC (4th) 248 (Hickling): Arbitrator Hickling reasoned that with regard to call back-pay:
The purpose of the clause is not to compensate for hours actually worked but for the inconvenience of being called out to work during one’s off-duty hours. The premium does not depend upon the extent of the inconvenience. It does not matter, for example, whether the individual lives 5 or 45 minutes’ travel time from the school. Nor does it matter whether the call or calls come during the day, or in the middle of the night. The employer does not expect the individual to linger on the worksite so as to use up the entire three hours. He is entitled to return home after dealing with the emergency. Payment of a second premium when another call comes within three hours of the first would not, in my view, constitute pyramiding. It is certainly not pyramiding of a traditional kind. Payment would be made for the call-outs, not for the hours actually worked. Payment of a second premium in respect of another emergency call-out is not with the mischief at which the anti-pyramiding presumption is aimed. (p. 9)
In Elliot Arbitrator Briggs noted that she had one benefit at issue before her and that was call-back pay. She found further that there was no duplication of benefits because there were two instances of call-back even though the second call-back occurred within the hours of the first. The same is true in the case before me. There are two call-backs. The only difference is that the two call-backs trigger the superior holiday benefit twice.
There is no logic in finding that premium pay is triggered for the first, but not the second. Nor would it be fair or within the purposive approach noted in Elliot and Bell that the grievor be paid the same as someone called back once or scheduled to work on a holiday. Here the grievor is entitled to be compensated for the double inconvenience of being called back to work two times on a holiday.
Although the superior benefit is triggered because the call-back occurs on a statutory holiday, the work itself remains “call-back” work. Thus, the triggering of the superior benefit of holiday pay does not allow the employer to treat the employee as if he was scheduled to work on a holiday, and simply add up the actual hours worked. There is a significant difference between being scheduled to work on a statutory holiday and being unexpectedly called into work for an emergency. As noted in Board of Trustees case (supra), the person called back would be entitled to go home once finished the emergency work, but the point remains that the person has been inconvenienced by being called to work on off duty hours.
Kruger is thus distinguishable from the case before me. The board in Kruger declined to award an additional eight hours of compensating leave pursuant to Article 19.2 to a grievor who worked an overtime shift on a statutory holiday. This case involved scheduled work and an overtime shift and, therefore, the grievor was paid under Article 19. Mr. Frame is, in effect, being paid for call-back work, but at a special rate because the work was done on a holiday.
For the reasons noted above, the grievance is allowed. The employer is hereby ordered to pay the grievor the difference between the call-back pay that he received under Article UN 9.1 and holiday pay pursuant to Articles UN 13.1 and 13.2, with interest for the second call-back.
I shall remain seized in the event that there are any difficulties with implementing this award.
Dated at Toronto this 12th day of July, 2005.