GSB# 2007-0356

UNION# 2007-0584-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(McIntosh)

Union

• and -

The Crown in Right of Ontario

(Ontario Clean Water Agency)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Jim Paul

Grievance Officer

Ontario Public Service Employees Union

FOR THE EMPLOYER

Felix Lau

Counsel

Ministry of Government and Consumer Services

HEARING

January 15, 2008.

Decision

In a grievance dated January 30, 2007, Mr. K. McIntosh claims that he was not paid correctly for working two call backs on the Thanksgiving Day paid holiday in 2006. The Employer claims that he was paid correctly. There was no challenge to my jurisdiction to hear and determine this grievance.

The parties agreed on the following facts. Mr. McIntosh holds a full-time position as an Instrument Foreman for OCWA in South Peel. His regular shift in his home position is 8 hours per day, 40 hours per week, Monday to Friday. Mr. McIntosh was not scheduled to work the Thanksgiving Day paid holiday that fell on Monday, October 9, 2006. In the normal course, therefore, Mr. McIntosh would have received 8 hours pay pursuant to Article 47 of the Collective Agreement, the holiday provision. Mr. McIntosh was called back to work twice on October 9, 2006. On the first call back he worked from 8:00 a.m. to 9:00 a.m. and was paid 2 times his base rate for 8 hours pursuant to Article UN 13.1 of the Collective Agreement and 8 hours pay pursuant to Article UN 13.2. The Employer takes the position that the payment provided for in UN 13.2 is payment for the paid holiday. On the second call back, Mr. McIntosh worked from 11:00 a.m. to 1:00 p.m. For this call back, he was paid 2 times his base rate for 8 hours pursuant to UN 13.1 and was paid 8 hours pay pursuant to UN 13.2. The Employer agrees that the payment Mr. McIntosh received for the second call back is consistent with the decision in Re OPSEU (Frame) and Ontario Clean Water Agency (2005), GSB No. 2004-1103 (Leighton).

The provisions of the Collective Agreement that are particularly relevant to this dispute are as follows:

ARTICLE 47 – HOLIDAYS

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

(11 days listed, including “Thanksgiving Day”)

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 (1½ ) times his or her basic hourly rate.

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 (7¼ ), eight (8), or the number of regularly scheduled hours, as applicable.

UN 13.2 In addition to the payment provided by Article 13.1, an employee who works on the holiday shall receive either seven and one-quarter (7¼) or eight (8) hours pay as applicable at his or her basic hourly rate or compensating leave of seven and one-quarter (7¼) hours or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday.

UN 13.3 It is understood that UN 13.1 and UN 13.2 apply only to an employee who is authorized to work on the holiday and who actually works on the holiday, and that an employee who, for any reason, does not actually work on the holiday shall not be entitled to the payments described herein.

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.

UN 13.5 Any compensating leave accumulated under UN 13.2 and UN 13.4 may be taken off at a time mutually agreed upon. Failing agreement, such time may be taken in conjunction with the employee’s vacation leave or regular day(s) off, if requested one (1) month in advance.

Article 47, the holiday provision, provides that an employee shall be entitled to eleven paid holidays each year, one of which is Thanksgiving Day. An employee who is called back to work pursuant to Article UN 9 shall be paid a minimum of 4 hours pay at 1½ times his or her basic hourly rate. Article UN 13, the holiday payment provision, contains two pay clauses which apply when an employee works on a holiday. UN 13.1 provides that an employee shall be paid at the rate of 2 times his or her basic hourly rate for all hours worked with a minimum credit of 7¼ or 8 hours. UN 13.2 provides that the employee shall also receive 7 ¼ or 8 hours pay at his or her basic hourly rate or the equivalent compensating leave. UN 13.3 makes it clear that the first two provisions in UN 13 only apply to an employee who actually works on the paid holiday. What makes these particular provisions relevant of course is that Mr. McIntosh was called back to work on a paid holiday.

The essence of the dispute arising from the grievance is whether an employee who is called back to work on a paid holiday is entitled to 8 hours pay pursuant to Article 47, in addition to pay received pursuant to UN 13. In other words, does UN 13 provide a complete code for payment for an employee who is called back to work on a paid holiday?

The Employer takes the position that it paid Mr. McIntosh properly under the Collective Agreement for the work he performed on October 9, 2006. Counsel for the Employer argued that UN 13 alone determines what pay an employee is entitled to receive for working a paid holiday. He submitted that there is no dispute that Mr. McIntosh was paid properly under UN 13 for the work he performed on October 9, 2006. For the first call back he was paid 24 hours pay at his base rate, 16 hours pay (2 times 8 hours) under UN 13.1 and 8 hours pay under UN 13.2. Counsel submitted that the 8 hours pay under UN 13.2 constitutes holiday pay for an employee who works on the paid holiday. Counsel noted that an employee who had been scheduled and worked the paid holiday would similarly receive 24 hours pay. Counsel submitted that the language of the relevant provisions of the Collective Agreement does not support different pay treatment depending on whether an employee was scheduled to work or was called back to work the paid holiday. In this instance, Mr. McIntosh was paid an additional 24 hours pay because he was called back to work a second time on October 9, 2006. Accordingly, counsel argued that the 48 hours of pay Mr. McIntosh received constituted his complete pay entitlement for working the paid holiday on October 9, 2006 and that there was no independent entitlement to an additional eight hours of pay under Article 47.

In the alternative, counsel for the Employer argued that the Union is estopped from claiming that Mr. McIntosh is entitled to 8 hours pay under Article 47. Through the testimony of Ms. J. Syncox, Acting Director of Payroll Operations Branch, the Employer established that since at least the 1980s, its consistent practice has been to pay an employee who works on a paid holiday the premium under UN 13.1 and eight hours pay under UN 13.2, whether they were called back or scheduled to work the holiday. The practice has not included a payment pursuant to the holiday provision. Counsel argued that the Union’s silence in light of the Employer’s longstanding practice amounts to a representation which the Employer has relied upon to its detriment.

The Union takes the position that the Employer is obliged to pay Mr. McIntosh a further 8 hours pay pursuant to Article 47. Mr. Paul argued that in the circumstances of the instant case, the Collective Agreement provides an employee with an independent right to holiday pay, in addition to payment under UN 13. Given the 8 hours pay that he claims is owed under this provision and the 48 hours pay provided for under UN 13 for two call backs, Mr. Paul asserts that Mr. McIntosh is entitled to 56 hours pay for the work he performed on the paid holiday. The Union agreed that if he had been scheduled to work the Thanksgiving Day paid holiday, as opposed to being called back to work the holiday, Mr. McIntosh would have been entitled to only the payments under UN 13.1 and 13.2, which amount to 24 hours pay for each call back. The Union argued that the Collective Agreement provides for different pay treatment for an employee who is called back to work on a paid holiday, given the nature of a call back. Mr. Paul gave an example of an employee who is called back to work later in the day of a paid holiday. He submitted that, unlike an employee who was scheduled in advance to work the holiday, the employee is in effect earning the benefit of holiday pay before he is called back to the workplace. In his submission, the fact the employee has been called back to work and earns pay under UN 13 does not disentitle the employee to the benefit of 8 hours pay under the holiday provision. Mr. Paul also took the position that the facts in this case do not support an estoppel.

In addition to the Re Frame decision, the Union referred me to the following decisions: Re OPSEU (Bell) and Ministry of Community and Social Services (1980), GSB No. 116/78 (Swinton); Re OPSEU (Elliot) and Ministry of Labour (1999), GSB No. 1282/97 (Briggs); Re OPSEU (Harrison) and Ministry of Correctional Services (1988), GSB No. 0122/88 (Dissanayake); Re OPSEU (Parsons) and Ministry of Government Services (1979), GSB No. 81/78 (Prichard); Re OPSEU (Whittard) and Ministry of Correctional Services (1991), GSB No. 2618/90 (Watters); Re OPSEU (Arnold) and Ministry of Correctional Services (1993), GSB No. 255/91 (Dissanayake) and Re Georgian College of Applied Arts and Technology and O.P.S.E.U. (1997), 1997 CanLII 25148 (ON LA), 59 L.A.C. (4th) 129 (Schiff).

Counsel for the Employer referred me to the following decisions: Re Cardinal Transportation B. C. Inc. and C.U.P.E., Loc. 561 (1997), L.A.C. (4th) 230 (Devine); Re NAV Canada and C.A.T.C.A. (2000), 2000 CanLII 50092 (CA LA), 94 L.A.C. (4th) 75 (Hope); Re OPSEU (Cartwright et al.) and Ministry of Community Safety and Correctional Services (2005), GSB No. 2002-1457 et al. (Abramsky); Re OPSEU (LaSalle) and Royal City Ambulance Services (1999), GSB No. 0284/98 (Petryshen); Re OPSEU (Union) and Ministry of Community Safety and Correctional Services (2007), GSB No. 2003-3075 (Herlich) and Re OPSEU (Union) and Ministry of Solicitor General and Correctional Services (2000), GSB No. 1995/99 (Brown).

After considering the submissions in light of the facts, it is my conclusion that the interpretation of the Collective Agreement proffered by the Employer must prevail. A review of the decisions that I was referred to supports this conclusion. The first set of cases illustrates how the Board has addressed the Employer’s pay obligation to an employee who is called back to work a paid holiday. Another set of cases address the meaning of UN 13.2. I note that the language in what is now Article 47 and UN 13 was first introduced into the 1989-1991 collective agreement. Before that collective agreement, the holiday provision provided that “An employee shall be entitled to the following holidays each year”, rather than using the word “paid” before the word “holidays”. As well, the language in UN 13.3, which provides that UN 13.1 and UN 13.2 only apply to employees who work the holiday, did not exist in the previous holiday payment provision. UN 13.3 was introduced to resolve some uncertainty about the meaning of UN 13.2 prior to the 1989-1991 collective agreement.

In Re Bell, supra, the grievor was called back to work on a holiday and worked for 2½ hours. He was paid for four hours work at 1½ times his hourly rate pursuant to the call back provision. He was also paid 8 hours pay under what is now UN 13.2. The Union argued that he should have been paid based on the 8 hour minimum in the holiday payment provision since the call back was for work on a holiday. The Board reviewed the purpose of the premium payment in both the call back clause and the holiday payment clause. The Board determined that an employee called back to work on a holiday experiences the double inconvenience of working outside his or her normal hours and having to work on a holiday, and was therefore entitled to the superior benefit. In reaching its conclusion, the Board noted that the grievor “should not be required to accept less compensation than the employee scheduled to work on that day who may only work a few hours but who would still be guaranteed 7¼ or 8 hours work, as appropriate.” In my view, this comment recognizes that when determining payment for working a holiday, there is no basis for making a distinction based on whether an employee is scheduled to work a holiday or is called back to work a holiday. Following the logic of the comment in Re Bell, it is necessary to consider whether there is language in the Collective Agreement that would justify compensating an employee who is called back to work on a holiday more than the employee who is scheduled to work the holiday. Although I recognize that the holiday provision did not have the words “paid holiday” in it when Re Bell was decided, there was no suggestion from the Union in that case that the grievor should have received an additional 8 hours pay as well as the payment required by what is now UN 13.

In Re Elliot, supra, the issue concerned what the grievor should be paid for two call backs on the same day. The Employer paid the grievor 6 hours pay for the two call backs, four hours at the rate of 1½ times his basic hourly rate. The Union argued that the grievor was entitled to the minimum call back premium for each time he was called back to work on that day. In other words, the Union submitted that he was entitled 12 hours pay for the two call backs. The day the grievor was called back twice was not a holiday. The Board determined that the grievor was entitled to the minimum call back pay twice because he was called back twice and that these circumstances did not constitute a pyramiding of benefits.

And finally in this grouping of cases is the decision in Re Frame, supra. The issue in that case concerned the grievor’s pay entitlement when called back to work twice on a paid holiday. For the first call back the grievor was paid for 24 hours as required by UN 13.1 and 13.2. For the second call back the Employer paid the grievor 4 hours at 1½ his basic hourly rate in accordance with the call back provision. Mr. Paul had argued that the grievor was entitled to be paid twice pursuant to UN 13.1 and 13.2 for both call backs. The Board agreed. Relying on the purposive approach in Re Bell and in Re Elliot, the Board concluded that the grievor was entitled to the superior benefit for each call back on the paid holiday. The grievor was therefore entitled to be paid for 48 hours under UN 13 for the two call backs. This is the same number of hours for which Mr. McIntosh was paid in the instant case for working his two call backs on the Thanksgiving Day paid holiday. Although the language in the collective agreements is identical in both cases, the Union did not take the position in Re Frame that the grievor was also entitled to an additional 8 hours pay pursuant to Article 47, the holiday provision, like it has here. Mr. Paul went to some length to emphasize that that the issue before me was not an issue in Re Frame.

I now turn to the review of some of the decisions which in various contexts addressed the meaning of what is now UN 13.2. I note again that it is the Employer’s position that this provision is the source of holiday pay for Mr. McIntosh on the day in question. Prior to the language change introduced into the 1989-1991 collective agreement, the issue of whether what is now UN 13.2 applied to employees whether they worked or not arose on a number of occasions. After noting the link between what is now UN 13.2 to what is now UN 13.1, the Board in Re Pullano 730/83 (Jolliffe) concluded that an employee had to work the holiday in order to be entitled to the payment under what is now UN 13.2. However, most of the decisions on this issue reached the opposite conclusion. In Re Harrison, supra, in rejecting Re Pullano, the Board noted that “the Board has consistently held that, while working on a holiday is a prerequisite for entitlement to premium pay under article 19.1 [now UN 13.1], all employees are entitled to holiday pay under article 19.2 [now UN 13.2].” It concluded that the grievor “was entitled to be paid holiday pay in accordance with article 19.2 despite the fact that he did not work the holiday …” As part of its reasoning, the Board wrote as follows:

Additionally, we observe that article 48 [the holiday provision] merely lists the designated holidays. It does not set out the method and quantum of compensation for the holiday. Indeed, it does not even stipulate that the designated holidays are “paid” holidays. There has to be some authority in the collective agreement providing for payment on the holidays. That source is article 19.2.

The Board in Re Harrison referred extensively to Re Parsons, supra. Although, as noted previously, the collective agreement language was different, the issue in Re Parsons is identical to the issue before me in the instant case. The grievor was called back to work on a paid holiday and was paid in accordance with what is now UN 13.1 and 13.2. The Union argued that the grievor was also entitled to 8 hours pay pursuant to the holiday provision. The Board concluded that the grievor was not so entitled.

The Board in Re Parsons was required to interpret the combined effect of Articles

9 [the holiday provision] and 19 [the holiday payment provision]. It noted that “Article 9 is straight-forward; it designates the statutory holidays and there can be no doubt that the words themselves, past practice and reasonable expectations lead to the inevitable conclusion that employees are to be paid for the holidays. Article 19, however, creates the confusion as to how much the employees are to be paid.” The Board indicated that one reading of Article 19 is that it is independent of Article 9, as was submitted by the Union. However, it rejected this interpretation based on the language of the relevant articles. The Board concluded that, “In our view, the better interpretation of Article 19 is that it is a relatively comprehensive code of entitlement to holiday pay dealing with both persons who are required to work and those not required to work on statutory holidays.” And further, it determined that “There is no separate entitlement under Article 9; rather the entitlement pursuant to Article 19.2 is the payment inherently required by Article 9.” Based on the language that existed at the time, the Board determined that there was no independent right to holiday pay under the holiday provision and that the right to holiday pay for an employee who worked the holiday and for the employee who did not work the holiday was found in the holiday payment provision.

In Re Kellogg 222/84 (Teplitsky), the Board noted that “Article 19 has been a prolific source of grievances” and urged the parties to clarify the provision at the bargaining table. As noted previously, the parties did change the language of the holiday provision and the holiday payment provision in the 1989-1991 collective agreement. The Board in Re Whittard, supra, referred to these changes in its 1991 decision. In particular, it noted that the word “paid” was inserted before the word “holidays” and that “This change created a “source” for payment, although arguably the quantum of same may still need to be inferred from other articles.”

In referring to these decisions, the Union argued that the result in Re Parsons could no longer be sustained, given the different language in the Collective Agreement. It argued that there now is an independent entitlement to holiday pay in Article 47 which entitles Mr. McIntosh to another 8 hours pay for working the Thanksgiving Day holiday.

In my view, the change in the language of the Collective Agreement did not alter the source of holiday pay entitlement for an employee who works the paid holiday. Before the language changed, UN 13.2 was the provision which provided holiday pay for employees who worked and for employees who did not work the holiday. The new language was intended only to clarify the holiday pay entitlement for employees who did not work on a paid holiday. UN 13.3 makes clear that UN 13.2 applies only to employees who work a paid holiday. UN 13.2 is still the provision which provides the source of entitlement to holiday pay for an employee who works the paid holiday, as Mr. McIntosh did in this case. The change in the language only means that UN 13.2 is no longer the source of holiday pay for an employee who does not work the holiday. That source is now Article 47. Article 47 now refers to “paid holidays” and, as noted in Re Whittard, it is necessary to make some inferences. However, the inferences that are required to be made about the number of hours and the basic rate of pay for any given employee are clear.

Article UN 13 does provide a complete code for pay for an employee who works the paid holiday. Consistent with the interpretation it has always received, UN 13.2 continues to provide the right to holiday pay for an employee who works the paid holiday. Although there is an obvious difference between being scheduled in advance to work the paid holiday and being called back to work a paid holiday, the difference is not reflected in the language of UN 13 and Article 47. UN 13 simply provides that an employee who works a paid holiday is entitled to the pay specified therein, without any reference to how the Employee came to work the paid holiday. There is nothing in the language of the Collective Agreement which suggests that an employee who is called back to work a paid holiday is entitled to more pay than an employee who had been scheduled to work the paid holiday. It would have been easy for the parties to have included specific language if they had intended to achieve such a result. If anything, the decisions on holiday pay, such as Re Bell, reveal an interpretative approach which supports the same pay treatment for an employee who is scheduled and an employee who is called back to work a paid holiday. The relevant language in the Collective Agreement and the decisions referred to above in my view compel the conclusion that Article 47 does not create an independent entitlement to holiday pay for an employee who works the paid holiday.

Accordingly, it is my conclusion that Mr. McIntosh was paid properly for the work he performed on Thanksgiving Day in 2006. He was not entitled to 8 hours pay pursuant to Article 47 because he worked the paid holiday and his complete entitlement to pay, including holiday pay, is based on Article UN 13. Given this determination, it is unnecessary to address the Employer’s estoppel submission. The grievance dated January 30, 2007, is dismissed.

Dated at Toronto, this 10th day of March 2008.