GSB# 2006-1607
UNION# 2006-0611-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Mitchell et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
BEFORE
Bram Herlich
Vice-Chair
FOR THE UNION
Mark Barclay Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Michelle Dobranowski Counsel Ministry of Government and Consumer Services
HEARING
March 18, 2008.
Decision
The collective agreement provides, in certain circumstances, for the payment of a shift premium for hours worked between 5:00 p.m. and 7:00 a.m. (There is, however, a disentitlement to the receipt of shift premium by employees whose hours of work normally fall within 7:00 a.m. and 5:00 p.m. Put somewhat differently, employees who regularly work day shifts between 7:00 a.m. and 5:00 p.m. have no entitlement to shift premium even in circumstances where they may work outside those hours.) The specific question the parties have put to the Board in these proceedings is whether seasonal fire program staff – (at least those) whose hours of work normally fall outside 7:00 a.m. and 5:00 p.m. – are entitled to be paid shift premium for hours worked between 5:00 p.m. and 7:00 a.m. on what otherwise would have been a regular day off (an “RDO”) and in circumstances where the number of hours worked on the RDO is at least the same as the number of hours worked in a regular shift.
While it is Article UN 6.1.3 and, to a much lesser extent, UN 6.2 which are at the centre of the dispute between the parties, I set out Article 6 in full:
ARTICLE UN 6 - SHIFT PREMIUM
UN 6.1.1 Effective January 1, 1992, an employee shall receive a shift premium of fifty-two cents (52¢) per hour for all hours worked between 5:00 p.m. and midnight. Where more than fifty percent (50%) of the hours worked fall within this period, the fifty-two cents (52¢) per hour premium shall be paid for all hours worked.
UN 6.1.2 Effective January 1, 1992, an employee shall receive a shift premium of sixty-two cents (62¢) per hour for all hours worked between midnight and 7:00 a.m. Where more than fifty percent (50%) of the hours worked fall within this period, the sixty-two cents (62¢) per hour premium shall be paid for all hours worked.
UN 6.1.3 Effective on May 5, 2002, an employee shall receive a shift premium of seventy-eight cents (78¢) per hour for all hours worked between 5:00 p.m. and 7:00 a.m. Where more than fifty percent (50%) of the hours worked fall within this period, the premium shall be paid for all hours worked. Effective May 5, 2002, UN 6.1.1 and UN 6.1.2 shall no longer apply.
UN 6.2 Notwithstanding Articles UN 6.1.1, 6.1.2 and 6.1.3 where an employee’s hours of work normally fall within 7:00 a.m. and 5:00 p.m., the employee shall not be entitled to receive a shift premium for hours worked between 5:00 p.m. and 7:00 a.m.
UN 6.3 Shift premiums shall not be considered as part of an employee’s basic hourly rate.
UN 6.4 Shift premium shall not be paid to an employee who for mutually agreed upon reasons works a shift for which he or she would otherwise be entitled to a shift premium.
The parties put their case to the Board by way of the following Agreed Statement of Facts:
GSB #2006-1607
OPSEU #2006-0611-0003
In the Matter of a Grievance Arbitration Between:
(OPSEU) Mitchell, Darcy et al (Union)
and
The Crown in Right of Ontario (Ministry of Natural Resources) (Employer)
AGREED STATEMENT OF FACTS
This is a group grievance with 41 grievors who worked in the fire program out of Wawa for the Ministry of Natural Resources (MNR). The grievance was filed on August 23, 2006.
At the time the grievance was filed all but two of the grievors were performing seasonal work. Generally speaking, the grievors performed forest fire fighting or related duties during the fire season. Most of their contracts ran from May through the end of August.
Two of the grievors, Mr. Tony Dierolf and Mr. Greg Kirkland were full-time classified employees at the time the grievance was filed. Both Mr. Dierolf and Mr. Kirkland were Fire Management Technicians at the time the grievance was filed.
Most of the grievors were fire rangers who were members of three-person fire crews consisting of one Fire Crew Leader (RT3), one Senior Crew Member (RT2), and one Fire Crew Member (RT1). These workers were on Hours of Work Schedule 4.7. UN 2.2 provides that the normal hours of work for employees on Schedule 4.7 shall be forty (40) hours per week and eight (8) hours per day.
The hours of work for fire rangers during the first couple of weeks of their contracts are 9:30 a.m. to 5:30 p.m. Monday to Friday. As fire hazards increase and daylight hours lengthen, the start times for these workers moves to 10:30 a.m. During the heart of fire season, when there are no fire alerts or hazards, the hours of work for fire crews are 11:30 a.m. until 8:00 p.m. (with a 30-minute unpaid lunch). However, throughout the season (during fire alerts or hazards), start times vary widely and could include earlier start times (e.g. 7:00 a.m.) For example, fire crews are often required to report for work early in the morning when fires are burning.
A small number of grievors were fire program staff in other seasonal positions: Two Assistant Fire Management Clerks (OAG6) and one Equipment Management Person (Clerk 2 Supply).
The two Assistant Fire Management Clerks were on Hours of Work Schedule 3.7. UN 2.1 provides that the normal hours of work for employees on Schedule 3.7 shall be thirty-six and one quarter (36 ¼) hours per week and seven and one quarter (7 ¼) hours per day. The two Assistant Fire Management Clerks normally worked from either 9:00 a.m. until 5:00 p.m. or 12:00 p.m. until 8:00 p.m. (on a rotating basis) to ensure full coverage.
The Equipment Management Person was on Hours of Work Schedule 4.7. UN 2.2 provides that the normal hours of work for employees on schedule 4.7 shall be forty (40) hours per week and eight (8) hours per day. The Equipment Management Person normally worked 10 hours per day, eight days per pay period, from 8:00 a.m. until 6:30 p.m.
At the time the grievance was filed “Article 32 – Seasonal Employees” applied to all of the grievors, except Mr. Dierolf and Mr. Kirkland, as noted above.
Article 32.21.2 of the collective agreement specifically states that UN 6 (Shift Premium) shall apply to seasonal employees.
On regular work days, the grievor’s entitlement to shift premium is determined on a daily basis depending on the specific hours worked each day.
The grievors were regularly paid shift premiums on hours worked in applicable periods when not working on their regular day off (RDO) (alternatively referred to as a “scheduled day off”).
At some points throughout the 2006 and 2007 seasons, the grievors were approached by the employer to work on their regular days off. The employer does not pay shift premium to seasonal fire program staff when they perform work on a RDO. The grievors allege that they should be paid a shift premium for eligible hours worked as per Article UN 6 on a regular day off.
The parties are in dispute about whether or not seasonal fire program staff are entitled to a shift premium when they perform work on an RDO. The parties agree that when seasonal fire program staff work on a RDO any hours worked attract overtime pay as per the Collective Agreement.
Specifically, the parties ask the Board to decide whether seasonal fire program staff are entitled to a Shift Premium on an RDO for hours worked between 5:00 p.m. and 7:00 a.m. if, on a regular scheduled workday, their hours of work normally fall outside 7:00 a.m. and 5:00 p.m.
The parties agree that the grievors would not be entitled to a shift premium when they work less than the normal hours of work per day as set out in UN 2.1 and 2.2 on an RDO.
In terms of remedy, the grievors are seeking retroactive shift premium (for eligible hours worked as per Article UN 6 on an RDO) for the 2006 and 2007 fire seasons.
As will become evident shortly, the multiplicity of scenarios which may engage an interpretation of the relevant collective agreement provisions (or those similar or related to them) is impressive. And despite the limited facts agreed to by the parties, they have opted, rather than putting any specific particularized facts of any grievance or alleged contravention of the collective agreement, to pose a question more generic in nature in the hope that the Board’s ruling will assist them to resolve the issues relating (at least) to the 41 grievors referred to in the parties’ agreed facts.
A number of cases were referred to by the parties in support of their respective positions. These included: Morin, GSB 74/77 (Adams); Cameron, GSB 124/77 (Adams); Attwood, GSB 179/78 (Prichard); Robbins, GSB 165/78 (Swan); McCormick GSB 52/88 (Springate); and Union Grievances, GSB 1211/99 et al. (Petryshen). I will first briefly outline the positions of the parties and then return to a more detailed consideration of the cases.
I should also note that I will refer to employees generally and not distinguish between classified and seasonal employees. The grievors in question are almost exclusively seasonal employees and there was nothing in the parties’ submissions to enumerate any potentially different treatment of seasonal or classified employees in the circumstances which concern us. I feel compelled, however, to underscore that, while as a matter of convenience, I will not continue to identify the employees in question as “seasonal”, the question the parties have put to me and the answer I will provide are both restricted to the treatment of seasonal employees.
The union’s position is simple and straight-forward: for the purposes of shift premium entitlement, there is nothing in the collective agreement to distinguish between the hours worked on an RDO from those worked on a regular day. To the extent that the employees in question are paid shift premium for certain hours worked during their regular shifts, so too should they be paid shift premium when they work the very same hours or even the same number of hours on what would otherwise have been a day off.
The union acknowledges that some similar claims have been dismissed, but asserts that was on grounds not available in the instant case. For example, in the McCormick case, the grievance was ultimately dismissed on the basis of the disentitlement now found in Article 6.2 (i.e. the grievor’s hours of work normally fell within 7:00 a.m. and 5:00 p.m.) – such a disentitlement is not operative here – the parties have restricted their question to employees whose hours of work normally fall outside 7:00 a.m. and 5:00 p.m. Similarly, in the Union Grievances case (and, it would appear, a number of others as well) the union argued that working any number of continuous hours (i.e. perhaps as few as 2 or 3) could give rise to an entitlement to a shift premium. No such argument is being advanced in the instant case. Indeed, the parties’ agreed facts signal that the grievors would not be entitled to a shift premium when they work less than the normal hours of work per day as set out in UN 2.1 and 2.2 on an RDO. We are therefore only concerned with instances where employees work the same or the same number of hours as a regular shift, albeit on a day which would otherwise be their day off.
This particular constellation of facts has not been previously adjudicated and, the union urges, there is no reason not to require the payment of shift premium in these circumstances.
Not surprisingly, the employer views matters somewhat differently. It boldly and unequivocally asserts that under no circumstances can a seasonal employee ever legitimately claim entitlement to shift premium in respect of hours worked on an RDO.
The employer’s argument is rooted in a consideration of the word “shift” as it appears in both the title of Article UN 6 (Shift Premium) and in the body of UN 6.1.3 which, although it provides a fixed number of cents per hour, still describes what it provides as a shift premium.
The employer concedes that work on an RDO entitles an employee to overtime pay. But, says the employer, it does not also entitle the employee to shift premium. I should note, however, that this was not presented as any issue of improper pyramiding (as will be seen, the jurisprudential water seems to be well under that bridge). The employer merely asserted that (whether or not overtime rates are otherwise payable and, it is conceded, they are) there is simply no entitlement to shift premium for work on an RDO.
Relying primarily on the decisions in Morin and the Union Grievances case, the employer asserts that to earn shift premium, one must work a shift. A shift is more than any collection of consecutive hours worked. Indeed, even working the very same (or the same number of) hours that might correspond to a normal shift is not sufficient. Relying on the two cited cases, the employer essentially argues that entitlement to shift premium rests on and is payable only in relation to hours worked on (and perhaps immediately preceding and following) the employee’s regularly scheduled shift. Entitlement therefore cannot arise in respect of hours worked on an RDO.
In order to dispose of the case, I need to review the authorities pointed to, cases which deal with identical, similar or related language found in current or predecessor collective agreements between these parties.
The jurisprudential trail begins with Morin.
Oddly enough, however, that case did not address any issue of shift premium entitlement. The grievance arose out of what was then Article 10, which dealt with shift schedules. It provided that the employer would make every reasonable effort to avoid scheduling the commencement of a shift within 12 hours of the completion of “the employee’s previous shift” and required the payment of certain premiums where that 12 hour period had not been respected. The grievor in the case was called in to work on an emergency basis for a period of time which concluded less than 12 hours prior to the start of his next scheduled shift. The issue was whether the contemplated premium payments were required.
In making its determination, the Board considered the meaning of the word “shift”, as used in the collective agreement phrase “the employee’s previous shift”. It posited three possible meanings for the term “shift”. The first: “any period of time that an employee has worked” was quickly rejected. The Board observed that, in the industrial relations community, the term usually refers to “a period of time that would ordinarily constitute a day’s work” (thus excluding an ad hoc 3 or 4 hour work assignment). The next meaning considered was “any period of work which prior to it being worked is predetermined in length and of a duration that would ordinarily constitute a day’s work”. Such a definition could include both “regularly scheduled” and “temporary or additional” shifts alike.
The Board, however, chose to favour the third possible meaning posited, i.e. that the collective agreement phrase “the employee’s previous shift” referred to the employee’s previously scheduled regular shift as found in the posted shift schedule. It came to this conclusion largely because the article in which the provision was found was entitled and dealt with Shift Schedules i.e. the scheduling of regular or normal work hours. In that context, the “12-hour” provision was seen as a constraint on the scheduling of normal or regular hours, but not one which operated in respect of additional or temporary or emergency work demands not captured in the posted shift schedule regulated by the article. Thus, the Board concluded that the phrase “the employee’s previous shift”, in the context of that provision of the collective agreement, referred to the employee’s previously scheduled regular shift.
In some ways it is unfortunate to identify this case as the point of departure for the jurisprudence relevant to our inquiry. As already indicated, the case did not involve any issue of entitlement to shift premium. Further, reliance on the case to suggest that any reference to the word “shift” in the parties’ collective agreement must be taken to mean an employee’s regularly scheduled shift is dubious at best. That should be obvious from the very specific context in which the case was being decided. And even if that clarity might otherwise elude, a subsequent decision of the Board, in Cameron (decided in the very same year as Morin by a panel also chaired by the then Chair), makes it evident.
The facts in Cameron are less than clearly set out, perhaps because, as in the instant case, the parties chose to put specific questions to the Board. It appears that the grievor regularly worked extended shifts at least some portion of which extended into the 5:00 p.m. to 7:00 a.m. shift premium period. To that extent he was paid shift premium in respect of those regularly scheduled hours. The issue was whether he should receive shift premium in respect of overtime hours worked immediately before or after his regularly scheduled extended shift (or on a statutory holiday). In that case the parties asked whether a shift premium would be payable in respect of hours for which an overtime or statutory holiday premium was also required. The case turned on an analysis of “pyramiding” (an issue not before us). The Board concluded that the payment of shift premium in those circumstances did not involve any duplication or pyramiding of benefits. It was, however, some of the Board’s concluding remarks which are of interest (at p. 28):
The Board is of the opinion that the second question [regarding work on a statutory holiday] must also be answered affirmatively provided the grievor is scheduled to work the number of hours that would normally constitute a shift. While such a shift would not be a regularly scheduled shift there is nothing in art. 11:00 indicating that this must be the case. The employer made reference to the term shift as it is used in art. 10 and submitted that given the nature of art. 10 the parties must have intended it to be a reference to regularly scheduled shifts. The Board, as held in the Morin case (74/77), agrees with this suggested meaning for the purposes of art. 10 but this does not mean the term is used in a uniform way throughout the agreement. The term shift commonly means a fixed period of time constituting a normal day’s work, although this definition can be narrowed when the context of its use requires. In Morin the Board was satisfied that in art. 10 the parties were referring to regularly scheduled shifts but we see no reason to impute this limitation in art. 11.
The next relevant case, in what a cynical observer might be tempted to suggest was another volley in a “ping-pong” approach to jurisprudence, was decided not long after Morin and Cameron. In Attwood the issue was whether shift premium would be payable (in addition to the overtime premium) in respect of overtime hours worked either immediately preceding or following the employee’s normal day shift.
In dismissing the grievance, the Board considered the significance of the word “shift” in the collective agreement shift premium language. It reasoned that the shift premium must be referable to a shift and, in the case before it, the only shift to which it might apply was the grievor’s regular day shift. And as that shift did not attract any shift premium, neither did the overtime hours attached to it (even if the latter as opposed to the former otherwise fell within the hours in which shift premium might arise).
The next case, Robbins, dealt with facts which the Board understandably viewed as indistinguishable from Attwood. Just as in Attwood, the issue was whether overtime hours worked immediately before or after the grievor’s regularly scheduled day shift gave rise to shift premium entitlement.
The Board clearly struggled with its decision, suggesting that the two prior cases read together would produce some anomalous results. It observed as follows (at page 13):
It would therefore appear that, based on the two awards, various bargaining unit employees working the same overtime hours between 5:00 p.m. and 7:00 p.m. might receive or not receive shift premium, and perhaps for differing reasons, depending on various combinations of circumstances. Someone in the grievor’s position, on 8:00 a.m. to 4:30 p.m. shifts in an establishment with no evening or night shifts, would not receive it, as in Attwood; someone on 12 hour shifts extending past 5:00 p.m. in an establishment on three-shift operation would receive it, as in Cameron. It appears that someone on 12 hour (or even shorter) shifts extending past 5:00 p.m. might receive it even in a one-shift operation, or that even someone on a shift ending before 5:00 p.m. in a multiple shift operation would receive it, if the justifications set out in Atwood are taken literally. If so, since the … office operates on one shift only from April to October … [the grievor] could receive shift premium for an overtime hour in December that would not attract the payment in July.
This is a single collective agreement designed to provide for system-wide working conditions across all categories of the bargaining unit. While the Board’s cases are not entirely free of anomalous results, this situation seems so capricious that it hardly seems possible that the parties could have intended such an outcome.
However, notwithstanding its concerns, as the facts it was dealing with were indistinguishable from those considered in Attwood, the Board, while not necessarily agreeing with the Atwood result, was not prepared to go so far as to call it “manifestly wrong” and therefore felt constrained to follow it. The grievance was dismissed.
It is useful to pause to consider the nature and current significance of the anomalies which troubled the Board. What is the essential difference between the grievor in Cameron and those in Attwood/Robbins? Both cases raise the issue of whether overtime hours worked immediately before and after a regularly scheduled shift can also attract a shift premium. In Cameron, the regular hours worked by the grievor (or at least some of them) attracted a shift premium payment. In Attwood/Robbins they did not. It was this distinction upon which the Board fastened to generate the potentially anomalous results which concerned it – e.g. different employees working the same (overtime or additional) hours with different entitlements to shift premium, depending on the hours of their regular shifts.
Although it is perhaps only with the benefit of what the parties have done subsequent to these awards, one may rightfully question just how capricious that distinction may be. Indeed, even in the Attwood case, the Board referred to the general principle (whether or not it was specifically reflected in the collective agreement at the time) that shift premium is designed to compensate, not so much for individual atypical assignments, but rather for circumstances where employees are regularly asked to work hours viewed as undesirable.
And for our purposes, it is most significant that since the above collection of cases, the parties have opted to amend the terms of their agreement which, in particular, now contains the following:
UN 6.2 Notwithstanding Articles UN 6.1.1, 6.1.2 and 6.1.3 where an employee’s hours of work normally fall within 7:00 a.m. and 5:00 p.m., the employee shall not be entitled to receive a shift premium for hours worked between 5:00 p.m. and 7:00 a.m.
Whether or not the parties viewed this change as codifying the Board’s jurisprudence or otherwise capturing their shared intention is of no moment. What it does is clear, however. And at the risk of sacrificing utter precision in the interests of clarity, it effectively precludes employees whose regular hours of work are “straight days” from ever claiming the benefit of shift premium. In other words, it clearly exhibits the parties’ agreement that two different individuals working the very same hours may or may not be entitled to shift premium, depending upon when their hours of work normally fall. Put somewhat differently, shift premium is a benefit reserved for employees whose hours of work normally include (at least some) hours between 5:00 p.m. and 7:00 a.m. This new provision perhaps renders the Board’s prior jurisprudence of little more than academic or archival interest.
Perhaps the testament to the new found clarity associated with this change in collective agreement language is to be seen in the fact that the next case the parties referred me to, McCormick, was not decided until some 7 years later. And it is of little more than passing interest. The case turned on whether or not the grievor’s hours of work normally fell within the period of 7:00 a.m. to 5:00 p.m. On the facts before it, the Board concluded (at least with respect to the time period being considered) that they did and that the grievor was therefore not entitled to claim shift premium as he was not being inconvenienced by being required to normally work outside the hours of 7:00 a.m. to 5:00 p.m. The grievance was dismissed.
The last of the cases referred to is of more recent vintage. In the Union Grievances case, it was the interpretation of COR6.1.3 which was at issue. That provision, which is found in the Shift Premium article of the Corrections collective agreement, provides (potentially in addition to “standard” shift premium) for a weekend premium to be paid for all shifts worked during the weekend (as defined therein). The parties referred six different union grievances to the Board for determination. All involved entitlement to the weekend premium, a benefit unique to the Corrections bargaining unit. The parties, rather than dealing with the specific facts of any particular grievance, chose to put six different scenarios (with anywhere from 1 to 7 questions attached to each scenario) to the Board for determination.
The specific scenario and questions pointed to as relevant for our purposes are the following:
Scenario 6 – Unclassified Employees
B. Unclassified employee Z works 6 hours on a Saturday to cover an unexpected institutional need. This is not a regularly scheduled shift and employee Z is not replacing any other employee. Is employee Z entitled to be paid week-end premium for those hours worked?
C. Unclassified employee Z works from 7 a.m. to 7 p.m. on a Saturday to cover an unexpected institutional need. Employee Z is not replacing any other employee but there are other employees working regularly scheduled shifts from 7 a.m. to 7 p.m. Is employee Z entitled to be paid week-end premium for those hours worked?
Bringing us full circle, the positions advanced by the parties were reminiscent of those advanced in the Morin decision. In relation to the meaning of the word “shift” as it appears in the weekend premium provision, the employer argued that shift must mean a regularly scheduled shift; the union argued that a shift is simply a continuous period of work and that the performance of work of whatever duration constitutes a shift. In having to choose between those two options, the Board selected for the former. But its discussion of the matter perhaps leaves certain questions open. After observing that other cases dealing with the use of the word “shift” in other provisions of the agreement were not determinative, the Board went on to make the following pertinent observations (at p. 13 and following):
…In the context of the parties’ submissions, the term “shift” either means any continuous period of time that an employee has worked, whether it be for 2, 4 or 7 hours, or it refers to a regularly scheduled shift. Upon reviewing the language of the collective agreement and particularly the language in COR6, it is my conclusion that the parties did not intend the term “shift” to apply to the performance of any work irrespective of its duration, as argued by the Union…
In considering the Union’s position, I have also had regard to certain comments made by Arbitrator Adams in the Morin decision…I agree with the view that the term “shift” usually refers to a period of time that would ordinarily constitute a day’s work. There is nothing in 6.1.3 which would suggest that the parties intended something other than the usual meaning to apply. Of the two possible interpretations advanced by the parties, it is my conclusion that the Employer’s interpretation reflects the intention of the parties. Accordingly, it is my conclusion that the term “shift” in 6.1.3 refers to the Employer’s regularly scheduled shifts.
Based on that reasoning, the Board then went on to conclude that, in the two questions set out earlier, Z is not entitled to be paid the week-end premium since, in each case, he is not working a regular shift.
The employer urges me to follow this award and sees it as support for its view that “shift” means not merely any random amount of consecutive work time; not merely consecutive hours worked equal in number to those in a “normal” shift; and not even consecutive hours worked identical to the hours of a normal shift. “Shift”, the employer argues, must mean the employee’s normal shift (thereby precluding work on an RDO from constituting a shift).
It is not entirely clear to me that the award relied upon supports the view that “shift” means the employee’s regular shift. The choice offered to the Board in that case was between “any period of time worked” as the union argued and “a regularly scheduled shift” as advanced by the employer. The Board expressed its agreement, as do I, with the view that the term “shift” usually refers to a period of time that would ordinarily constitute a day’s work. It then went on to conclude that “of the two possible interpretations advanced by the parties”, the employer’s view was preferable. As a consequence, it ruled in Question 6C the employee was not entitled to the premium since he was “not working a regularly scheduled shift”. The facts, however, disclosed that the hours worked were the very same hours that would otherwise constitute a regular shift and that those hours were also being simultaneously worked by other employees as their regular hours. But they were certainly not the employee’s (i.e. the notional grievor Z’s) regular hours. It is that gloss on the award that permits the employer to argue, as it did before me, that the source, nature or quantum of hours worked on an RDO is irrelevant since, by definition, they are not the employee’s regular hours.
Having considered the authorities cited and the submissions of the parties, I am persuaded that the answer to the question posed is yes: seasonal fire program staff are entitled to a shift premium on an RDO for hours worked between 5:00 p.m. and 7:00 a.m. if, on a regular scheduled workday, their hours of work normally fall outside 7:00 a.m. and 5:00 p.m. In coming to this conclusion, I have been influenced by the following.
While the Morin Board concluded that the phrase “the employee’s previous shift”, in the context of the different provision of the collective agreement there under consideration, referred to the employee’s previously scheduled regular shift, the Chair of that panel of the Board took an early opportunity (in Cameron) to caution that there was no reason to impute that limitation in an interpretation of the shift premium provisions of the collective agreement. I agree.
The next following decisions i.e. Attwood and Robbins are both distinguishable and, in view of subsequent changes to the collective agreement, may be of little more than archival interest. They are distinguishable because, unlike the case before me, they dealt with claims for shift premium entitlement in respect of hours worked immediately preceding or following an employee’s regular shift. (And, I note further, they may be distinguishable from Cameron insofar as they dealt with such hours in relation to a regularly scheduled shift which otherwise attracted no shift premium).
The Union Grievances case warrants a number of comments. First, of course, I must note that it deals with a weekend premium entitlement under the Corrections collective agreement which has no analogous provision in the agreement before me. There is, however, something about the process the parties chose in that case which is similar to the one before me.
The parties frequently opt, rather than litigating certain specific individual facts or sets of facts, to pose generic questions or scenarios to the Board for determination and the Board generally facilitates that approach. The parties must recognize that such an approach has its limitations. As the cases referred to make clear, there is an impressive configuration of potential fact scenarios which may generate issues around shift premium entitlement. It is likely that a generic question will fail to capture all of the possible factual permutations or that the nuances of actual facts may be more varied than a generic question affords. This is not to say that there is no value in proceeding in this fashion where there are a large number of actual and potential claims. The parties must be aware, however, that by so doing they provide the Board with a tool more in nature of a mallet than a scalpel to perform its operations.
Those limitations are perhaps evident in the Union Grievances decision. The Board was presented with two interpretive options. And while the Board expressed its endorsement of the well established arbitral view that “shift” usually refers to a period of time that would ordinarily constitute a day’s work, that was not a specific interpretive option presented to it and we do not know what it might have decided had that option been advocated by either of the parties. In choosing between the two options presented, the Board adopted the one which was not utterly inconsistent with usual meaning of shift. Faced with that choice, I would likely have come to the same conclusion.
The content of the issue before me is different, but the form of its presentation bears some similarity, perhaps as a result of the manner in which the parties have chosen to litigate the issue. I am asked to answer a single largely generic question. No alternatives or refinements to the two interpretive options advanced by the parties were posed, posited or advanced. For example, one may easily conceive of a range of circumstances which might lead to an employee working on an RDO, e.g. to replace a fellow employee absent from his/her scheduled shift; to meet unanticipated additional operational demands during the same hours as other employees’ regular shifts; or even to work unscheduled hours during a period of time which does not conform (except in quantum) to the hours of any regular shift. The employer argues that in any and all of those (or, indeed, any other) circumstances there can be no shift premium entitlement for an employee working on their RDO. The union asserts that so long as an employee works the hours of a regular shift (whether or not it is the employee’s regular shift) or a number of consecutive hours at least equal to those that would comprise a regular shift, the employee, in the circumstances otherwise adverted to in the agreed facts is entitled to shift premium for the relevant hours. The union’s position is entirely consistent with the view, endorsed by this Board on more than one occasion, that “shift” usually refers to a period of time that would ordinarily constitute a day’s work. The employer seeks to impose the additional qualification that the shift be a regularly scheduled shift and perhaps even the employee’s regularly scheduled shift.
Like the Board in Robbins, I am concerned about some of the anomalies that result from the employer’s proffered interpretation. It is agreed that the hours of work of the employees in question normally fall (though not in their entirety) outside 7:00 a.m. and 5:00 p.m. and that they are paid shift premium for hours worked outside those hours on their regular shifts. The employer’s interpretation means that that while an employee will receive a shift premium for working after 5 p.m. on a regularly scheduled shift, no such premium would be paid to the same employee for hours worked after 5 p.m. on an RDO. Similarly, two fellow employees working together side by side on after 5 p.m. hours would receive disparate shift premium treatment if one was working on an RDO and the other not. While that is a result the parties are free to negotiate (as they did with respect to eliminating shift premium entitlement for employees working straight days), it is not a result to which I am drawn on the language of the agreement.
It is for these reasons that, as between the interpretive options advanced by the parties, I prefer the one advocated by the union and have therefore answered the question put to me in the affirmative.
The union seeks damages by way of remedy. As there are no specific facts before me, I cannot but remit the matter to the parties and remain seized with respect to remedy or other issues relating to the implementation of this award.
Dated at Toronto this 8th day of April 2008.