GSB# 2004-3129

UNION# 2004-0453-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Savage et al.)

Union

• and -

The Crown in Right of Ontario (St. Lawrence Parks Commission)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Pierre Pinet Human Resources Consultant St. Lawrence Park Commission

HEARING

May 4, 2005.

Decision

The grievors allege that they have not been paid properly for holidays that fell on their regularly scheduled workdays. The hearing proceeded by way of an agreed statement of facts and oral argument. The parties agreed to the following:

Agreed Statement of Facts

The Grievors

1. Brenda Lauzon was appointed to the Classified Service as a regular part-time employee on May 21, 2001. During the relevant times the grievor occupied the position of Group Leader, Customer Services Unit, which is part of the Customer Service and Office Administration Division. The grievor reports to Bonnie VanMoorsel who is the Manager of the Division.

2. Denis Savage was employed during the relevant times as a Translator in the Product Development and Marketing Division. The grievor reported to Susan LeClair, Product Development Officer. Bruce Fitz-Gibbon is the Director of the Division. Mr. Savage was appointed to the Classified Service as a regular part-time employee on September 1, 2003. Mr. Savage retired from the Ontario Public Service on February 18, 2005.

3. During the weeks immediately preceding and following the holiday period, Mr. Savage was scheduled to work 21.75 hours per week and normally worked on Monday, Tuesday, and Thursday of each week. These hours as well as the working days could vary according to operational requirements following discussions with the employee or by mutual agreement.

4. During the weeks immediately preceding and including the week beginning December 26, 2004, Ms. Lauzon was scheduled to work 36.00 hours per week and normally worked from Monday to Friday of each week. Starting the week beginning January 2, 2005, Ms. Lauzon's hours of work were reduced to 29 hours per week and was not scheduled to work on Monday, January 2, 2005. These hours as well as the working days could vary according to operational requirements following discussions with the employee or by mutual agreement.

5. For the purpose of this Agreement, the holiday period includes the following work weeks:

• week beginning December 26, 2004; and
• week beginning January 2, 2005.

Factors Giving Rise to the Dispute

6. On October 5, 2004, the Employer posted a memo informing employee of the rules governing holiday payment and time off during the 2004 Christmas holidays (December 25 and 26, 2004 and January 1, 2005).

7. Because both the Christmas Day and Boxing Day holidays fell on a successive Saturday and Sunday in 2004, the Employer wanted to ensure that staff were aware of the manner these events was treated by the various collective agreements and the applicable legislation.

8. All offices of the Ontario Public Service, including those of the St. Lawrence Parks Commission, were closed on Monday, December 27 and Tuesday, December 28, 2004. Offices were also closed on Monday, January 3, 2005.

9. At the time of the events giving rise to this grievance, the St. Lawrence Parks Commission employed 14 regular part-time employees in the classified service:

11 - OPSEU 1 - AMAPCEO 2 - Management/Excluded

10. Monday, December 27 and Tuesday, December 28 as well as Monday, January 3 would normally have been working days for Mr. Savage.

11. Monday, December 27 and Tuesday, December 28 would normally have been working days for Ms. Lauzon.

12. The Employer permitted the affected employees to make up time either prior to or following the holidays by rescheduling their hours of work or by using vacation days and/or time allowed.

13. All of the affected employees, including the grievors, took advantage of the Employer's offer.

14. Regular part-time employees did not suffer any reduction in pay in the pay period during which the holidays occurred because of his or her inability to work on the above days due to the closing of the office.

15. The grievors requested to work the days for which they were scheduled, but this request was denied.

The Grievance

16. The Union, on behalf of the grievors, filed a group grievance on November 18, 2004 pursuant to Article 22.11.1 of the Collective Agreement alleging that the Employer breached the Collective Agreement by denying holiday pay and/or regularly scheduled shifts to the grievors.

17. A Stage Two meeting was held on December 13, 2004.

18. The Employer responded to each individual of the Group Grievance by letter dated December 16, 2004, denying any violation of the collective agreement.

19. The entitlement to holiday payment for regular part-time staff who are members of the OPSEU bargaining unit are governed by the provisions of Article 73 of the Collective Agreement.

SUBMISSION OF THE PARTIES

Counsel for the union, Tim Hannigan, submitted that Article 73 of the collective agreement applies to the part-time employees. Counsel argued that part-time employees were, therefore, entitled to be paid if they were regularly scheduled on one of the days noted in Article 73. Since Christmas, Boxing and New Year’s Days in this case, fell on a Saturday, Sunday, and Saturday respectively, the statutory holidays were recognized on the following Monday and Tuesday for Christmas and Boxing Day, and the Monday for New Year’s Day. Counsel argued that since the holiday was moved to Monday, Tuesday, and Monday, and the grievors were normally scheduled to work on those days, they should be paid for the holidays.

Counsel for the union noted that the Crown is exempt from the provisions of the Employment Standards Act and, therefore, drew my attention to Regulation 977 under the Public Service Act, R.S.O. 1990, c.P 47 (as amended).

In sum, since the employer designated the holidays for Christmas, Boxing and New Year’s Days, according to Section 58(5) of the Regulation on the Monday, Tuesday, and Monday, respectively, and since the grievors were normally scheduled to work on Mondays and Tuesdays, they should have been paid. They did offer to work on those days, but the workplace was closed because of the holidays. The union relied on OPSEU (Derochie et al) and Ministry of Community, Family and Children’s Services (2003) GSB 0628/01 (Hunter).

The employer representative, Pierre Pinet, agreed that Article 73 provided part-time employees with holiday pay if they were regularly scheduled to work on the holiday. He argued further that since the holidays in question fell on Saturday, Sunday, and Saturday respectively, days for which the grievors were not regularly scheduled, then they were not entitled to be paid for them. Mr. Pinet drew my attention to Article 47, the provision in the collective agreement for full-time employees, which specifically addresses the issue of holidays falling on a Saturday or Sunday. Since the comparable provision for part-timers, Article 73, is silent and Article 55 specifically excludes the application of UN 13.4 to part-timers, he argued that there is a conflict between the collective agreement and the Regulation.

Mr. Pinet argued further that if there was no provision in the collective agreement for holiday pay for part-timers, then the Regulation would apply, but as there is, the collective agreement must prevail. He provided excerpts from, Brown and Beatty, Canadian Labour Arbitration to support the principles that the collective agreement language must have “clear expression of intention …” “to confer a financial benefit” (at 4:2120). Finally, he argued that to find that the grievors are entitled to holiday pay here would be to in effect amend the collective agreement, which is prohibited under Article 22.14.6.

Mr. Hannigan argued in reply that there was no conflict between the Regulation and Article 73. Article 73 was silent on the issue of holidays falling on a Saturday or Sunday. Thus, he argued that the Regulation does apply. Section 29(3) of the Regulation provides that a conflict between a regulation and the collective agreement is resolved in favour of the collective agreement. However, there is no conflict between the Regulation and the collective agreement in his submission. Finally, the language in Article 47 could not be applied to part-timers because otherwise they would get all the holidays paid and Article 73 makes it clear that they only get paid for a holiday if it falls on a day for which they are regularly scheduled.

Thus the union seeks holiday pay for Mr. Savage for the Monday and Tuesday after Christmas and Boxing Day, and the Monday after New Year’s Day. The union seeks holiday pay for Ms. Lauzon for the Monday and Tuesday after Christmas and Boxing Day.

DECISION

Article 73 provides that part-time employees get paid for certain holidays if they fall on a regularly scheduled workday.

73.1.1 An employee shall be entitled to a paid holiday each year on each of the following days which fall on a day that is a regularly scheduled work day for the employee:

New Year’s Day Easter Monday Canada Day Labour Day Remembrance Day Boxing Day Good Friday Victoria Day Civic Holiday Thanksgiving Day Christmas Day Any special holiday as proclaimed by the Governor General or the Lieutenant Governor.

73.1.2 An employee shall be compensated for each of the holidays to which he or she is entitled under Article 73.1.1. The compensation shall be equivalent to that of his or her regularly scheduled working day, but shall not exceed seven and one-quarter (7 ¼) or eight (8) hours, as applicable.

73.2 When an employee works on a holiday listed in Article 73.1.1, in addition to any compensation to which he or she may be entitled under Article 73.1.2, the employee shall be paid at the rate of two (2) times the basic hourly rate for all hours worked with a minimum credit of the number of hours in his or her regularly scheduled working day. This Article 73.2 does not apply to employees in classifications assigned to Schedule 6.

73.3 In addition to any compensation to which he or she may be entitled under Article 73.1.2, an employee in a classification assigned to Schedule 6 shall receive equivalent time off for work on a holiday listed in Article 73.1.1.

Article 47 provides holiday pay for full-time employees:

47.1 An employee shall be entitled to the following paid holidays each year:

New Year’s Day Easter Monday Canada Day Labour Day Remembrance Day Boxing Day Good Friday Victoria Day Civic Holiday Thanksgiving Day Christmas Day Any special holiday as proclaimed by the Governor General or Lieutenant Governor.

47.2 Except as provided in Article 47.3 when a holiday specified in Article 47.1 falls on a Saturday or Sunday or when any two of them fall on a successive Saturday and Sunday, the regular working day or days next following is a holiday or are holidays, as the case may be, in lieu thereof, but when such next following regular working day is also a holiday the next regular working day thereafter is in lieu thereof a holiday.

47.3 Those employees whose work schedules are subject to rotating work weeks which include scheduled weekend work on a regular or recurring basis shall have the Canada Day, Remembrance Day, Christmas Day, Boxing Day and New Year’s Day holidays designated as July 1st, November 11th, December 25th, December 26th and January 1st, respectively, and Article 47.2 shall have no application to these employees in respect of these holidays.

The entitlement to holiday pay is further delineated in the provisions of the unified bargaining unit collective agreement at UN 13. Mr. Pinet drew my attention to UN 13.4, which states:

UN 13.4 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.

Article 55 of the central agreement specifies which articles of the collective agreement apply to regular part-time civil servants. Article 47 is not on the list, nor is UN 13. Mr. Pinet argues that because the language of Article 47.2 of moving the holiday when it falls on a Saturday or Sunday is not found in Article 73, it must have been the intention of the parties not to give part-timers holiday pay if one fell on a Saturday or Sunday. Mr. Hannigan says Article 73 is silent on the move, and so the Regulation applies. Section 58 of Regulation 977 provides in part:

58 (1) A full-time employee is entitled to a holiday in each year on the following days:

1. New Year’s Day
2. Good Friday
3. Easter Monday
4. Victoria Day
5. Canada Day
6. Civic Holiday
7. Labour Day
8. Thanksgiving Day
9. Remembrance Day
10. Christmas Day
11. Boxing Day
12. Any special holiday proclaimed by the Governor General or the Lieutenant Governor. R.R.O. 1990, Reg. 977, s.58(1).

58 (2) A part-time employee shall be entitled to a holiday each year on each of the days shown in subsection (1) which fall on a regularly scheduled working day. R.R.O. 1990, Reg. 977, s.58 (2).

58 (5) When a holiday specified in subsection (1) falls on a Saturday or Sunday, or when any two of them fall on a successive Saturday and Sunday, the regular working day or days next following is a holiday or are holidays, as the case may be, in lieu thereof, but when such next following regular working day is also a holiday the next regular working day thereafter is in lieu thereof a holiday. R.R.O. 1990, Reg. 977, s.58 (5).

Section 58(5) is clear – if Christmas falls on a Saturday, the holiday is the next regular working day, or Monday. The Boxing Day holiday would then fall on the Tuesday. This provision applies to both full-time and part-time employees. Therefore the regulation requires the holidays falling on a Saturday/Sunday to be moved to the next regular work day for regular part-time employees.

The next issue for me to decide is whether there is a conflict between Article 73 of the collective agreement and section 58(5) of the Regulation because it does not incorporate the language of “moving” the holiday, as does Article 47, which pertains to the holiday pay for full-time employees.

The only case provided to me was of little assistance. The Derochie et al case stands for the proposition that if a holiday falls on a regularly scheduled day off for a part-time employee, then they are not entitled to a paid holiday. It does not address the issue of the effect of Section 58(5) of Regulation 977, which does not appear was cited to the Board, nor the issue of the effect of “moving” the holidays. This may not have been an issue in the case. It is not clear from the decision what the facts were in Derochie et al. After the hearing I requested, the case cited in Derochie et al, but neither of the parties were able to provide it.

Without any case law to guide me, I must turn to first principles of collective agreement interpretation. The excerpt from Brown and Beatty provided by the employer on the object of construing the collective agreement is helpful. It is well-established law that the object of interpreting the collective agreement is to discover the intentions of the parties from the words of the provision. In doing this arbitrators must presume that the parties “intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions” (Brown and Beatty 4:2100). When faced with two possible interpretations arbitrators consider several factors, including the purpose of the provision, the reasonableness of each interpretation, and whether the interpretation is administratively feasible or would lead to anomalies.

Applying these principles I have come to the conclusion that there is no conflict between Section 58(5) of the Regulation and Article 47 of the collective agreement. I am not persuaded that silence in the collective agreement on the issue of moving the holidays from a Saturday/Sunday to a Monday/Tuesday cancels the effect of the Regulation. Had the parties wished to do this they could have included the language that contradicted the Regulation. They did not. If there was a clear contradiction between the two, as union counsel pointed out, then the collective agreement would govern, and the Regulation would not apply. However, there is no conflict. Further, I am not persuaded that because the language of the Regulation is included in the collective agreement for full-time employees, but not for part-timers, there was an intention to exclude this for part-timers. The holidays that fell on a Saturday/Sunday were moved to Monday/ Tuesday, making the latter the holidays in reality. The facts of the case support this finding: the grievors offered to work on Monday /Tuesday, but could not since the workplace was closed for the holidays.

Thus for the reasons noted above and having carefully reviewed the submissions of the parties, I am persuaded that the union’s interpretation is correct. Part-time employees are entitled to be paid for holidays, which fall on a regular scheduled day, and, in this case, the employer rightly, as required by the Regulation, “moved” the holidays to Monday, Tuesday, and Monday respectively. This result does not amend the collective agreement, which is silent on the issue. It merely recognizes what the employer is obliged to do under Regulation 977 of the Public Service Act.

The employer is hereby ordered to compensate the grievors for the lost holiday pay, that is three days for Mr. Savage and two days for Ms. Lauzon. I shall remain seized in the event that issues arise on implementation of this award.

Dated at Toronto this 15th day of August, 2005.