Lafarge Canada Inc. v. Ministry of Labour, 2000 CanLII 13471

Lafarge Canada Inc. v. Ministry of Labour

3038-98-HS Lafarge Canada Inc., Applicant v. Ministry of Labour, Responding Party v. CAW Local 636, Interested Party.

BEFORE: Patrick Kelly, Vice-Chair.

APPEARANCES: John Saunders and Laird Crooks for the applicant; Deanna Exner and Mike Bennett for the Ministry of Labour; Joe Kaplar, Steve MacDonald and Joe Stapleton for CAW Local 636.

DECISION OF THE BOARD; February 8, 2000

1This is an application appealing the November 23, 1998 order of an occupational health and safety inspector (the “inspector”). The application is brought pursuant to section 61(1) of the Occupational Health and Safety Act (the “Act”).

2The hearing in this matter took place on December 15, 1999.

The Facts

3The material facts were not in dispute. On November 2, 1998, an employee of the applicant (the “company”), Mr. Joe Stapleton, attended a monthly meeting of the company’s joint occupational health and safety committee (the “committee”), of which he was a member. He attended on his scheduled day off. The committee met for four hours.

4The company paid Mr. Stapleton for five hours in total at his regular hourly rate of pay. Four of those paid hours were compensation for the time he spent in the committee meeting, and the other paid hour was for preparation time.

5On November 23, 1998, the inspector attended at the company’s workplace in response to a request to do so in connection with the issue of the pay of Mr. Stapleton as a committee member. The inspector advised the company that he considered it to be in violation of the Act in failing to pay Mr. Stapleton premium pay for his attendance at the committee meeting on November 2, 1998. The inspector also issued a written order directing that “[t]he employer shall pay the members of the Joint Health and Safety Committee for the time spent attending meetings of the committee, at the members [sic] regular or premium rate, as may be proper”. The written order on its face does not make a finding of a violation of the Act.

6There was a collective agreement entered into on July 1, 1997 (the “1997 agreement”) between the company and the interested party (the “union”) which applied to Mr. Stapleton at all material times. The provision of the collective agreement relative to payment for members of the committee, and applicable to Mr. Stapleton at the time the inspector made his order, is clause 26(5) which reads:

26. (5) Members of the Committee will be compensated for all time spent in connection with work on the Committee at the applicable hourly rate with the exception of monthly meetings which will be paid at their straight time hourly rate.

7The collective agreement prior to the 1997 agreement contained different language on the payment of committee members. That provision, also referred to as clause 26.05, was as follows:

Members of the Committee will be compensated for all time spent in connection with work of the Committee as required by the Occupational Health and Safety Act.

8There is no dispute between the parties that had Mr. Stapleton been working at his regular duties on his regularly scheduled day off on November 2, 1998, he would have been entitled to overtime pay pursuant to the collective agreement between the parties.

The Issues

9The central issue concerns the interpretation of section 9(35) of the Act in relation to the rate of pay to which Mr. Stapleton was entitled for his attendance at the meeting of the committee on November 2, 1998. As section 9(34) is essential to a reading of section 9(35), both are set out below:

9(34) A member of a committee is entitled to,

(a) one hour or such longer period of time as the committee determines is necessary to prepare for each committee meeting;

(b) such time as is necessary to attend meetings of the committee; and

(c) such time as is necessary to carry out the member's duties under subsections (26), (27) and (31).

(35) A member of a committee shall be deemed to be at work during the times described in subsection (34) and the member's employer shall pay the member for those times at the member's regular or premium rate as may be proper.

10The company takes the position that because the 1997 agreement between the parties clearly contemplates that time spent in committee meetings is to be paid at the participants’ straight time rate of pay, therefore straight time pay for Mr. Stapleton was “proper” within the meaning of the Act. The responding party (the “Ministry”) agreed that the intent of the 1997 agreement language in section 26(5) is clear on its face. Nevertheless it maintained that as Mr. Stapleton was deemed to have been at work on November 2, 1998, pursuant to subsection 9(35) of the Act, and because he otherwise would have been entitled to overtime work had he been engaged in his regular duties, the inspector’s order was correct, and premium pay was payable. The Ministry argued that there was a conflict between the collective agreement and the Act, and that such a conflict must always be decided in favour of the Act. The union appeared to support the position that Mr. Stapleton was entitled to overtime pay, although the exact basis for that position was not clear to the Board.

11A secondary issue, although characterized as the applicant’s main submission, is that the order itself does not comply with subsection 57(3) of the Act, and as such should be set aside. Subsection 57(3) of the Act provides as follows:

57. (3) An order made under subsection (1) shall indicate generally the nature of the contravention and where appropriate the location of the contravention.

12It was common ground that the order itself did not identify any violation of the Act, although it was also agreed that the inspector advised the applicant of the nature of the alleged contravention. Counsel for the applicant took the position that the failure to identify a violation of the Act in the written order of the inspector deprived the written order of any legal effect, and as such it should be set aside. The Ministry argued that because the applicant was fully aware of the nature of the contravention as explained orally by the inspector, the order must stand.

Decision

13It became apparent in the argument of both the applicant and the Ministry that the decision in Ingersoll Machine and Tool Co. Ltd. v. Ministry of Labour (Referee M. G. Picher, June 3, 1983) was considered pivotal to the instant case. In Ingersoll Machine, a decision of a Referee under the Employment Standards Act (the “ESA”), the employer and the union were parties to a collective agreement which provided for a joint management-union safety committee. The relevant clauses of that collective agreement are re-produced below:

12.01 The Company and the Union agree that they mutually desire to maintain high standards of safety and health in the plant in order to prevent industrial injury and illness.

12.03 A joint Management/Union Safety Committee will be established consisting of not more than five members each from Management and Union. The Union meetings will be held monthly and at such other times as are deemed necessary. Safety Committee members will be paid at their straight time hourly rate plus C.O.L.A. for all time spent on such Safety Committee meetings.

14The union and the Ministry in that case argued that the Act as it then stood conferred upon committee members the right to be paid incentive earnings as part of their “regular rate” of pay for all time spent in committee meetings. They also advanced the position that “premium rate” included overtime pay in the appropriate circumstances. The employer opposed these interpretations of the Act. A reference under the ESA was directed to the Referee to determine whether wages found owing under the Occupational Health and Safety Act as it then was (referred to hereafter as the “OHSA”) were enforceable under the the ESA. The Referee determined that such wages were collectible under the ESA.

15The Referee concluded, among other things not relevant to the case at hand, that “regular rate” as defined in the OHSA, as it then was, included incentive payments, and that “premium rate” included overtime payments, and further, that the employees affected were to be compensated accordingly.

16What remains unclear from the decision is whether, in determining that “regular rate” under the OHSA included incentive payments, and going on to decide the meaning of “premium rate”, the referee then concluded that the parties’ collective agreement provision concerning pay for committee meetings (Article 12.03 set out above) was in conflict with the OHSA. It will be recalled that Article 12.03 stated that safety committee members were to be paid at their straight time hourly rate plus a cost of living allowance for all time spent in committee meetings. There is nothing said expressly in the decision that sheds any light on the treatment of this provision of the collective agreement. However, the Referee did articulate an interpretation of the OHSA that states that no member of the health and safety committee should be economically disadvantaged by participating in the committee’s activities.

17While the principle established in Ingersoll Machine – that the OHSA’s meaning of “premium rate” includes overtime – appears correct, I find that the case is not helpful to the resolution of the present dispute, for three reasons. First, it is not clear that the facts giving rise to the claims for compensation by the committee members in that case are similar to the facts giving rise to Mr. Stapleton’s claim in the present matter. Secondly, there is no discussion concerning the interpretation of the collective agreement language in that case within the context of the Act as it then was. That is a key issue in the present case. Thirdly, there is limited discussion in Ingersoll Machine concerning the meaning of the words, “as may be proper” within subsection 8(12) of the Act as it then was. Those same words appear in subsection 9(35) of the current Act, and appear to be critical to a determination of the issues in dispute in this matter.

18Perhaps not surprisingly, counsel for the company and the Ministry took quite different approaches in arguing the law in this case. Counsel for the company focussed on the 1997 agreement, and the intention of the parties to that collective agreement. Counsel for the Ministry, on the other hand, focussed on the Act itself, arguing that the Act’s purposive approach is paramount over the 1997 agreement of the parties. As such, it was submitted, the committee member, Mr. Stapleton, should be paid overtime in accordance with the entitlement he would otherwise enjoy had he been assigned to work on November 2, 1998.

19Counsel for the Ministry submitted that the use of the words in section 9(35), “as may be proper”, in connection with the choice between a committee member’s regular rate of pay or premium pay must refer back to the period of time in which the committee member is “deemed to be at work”. In a unionized workplace, as in the instant case, one then looks to the applicable premium that would be payable to the committee member under the terms of the collective agreement as if the committee member were indeed carrying out his or her job duties. At the same time, counsel for the Ministry argued that section 9(35) should be read in as expansive light as possible to cover the greatest number of workers as possible, with compensation at a level at least equal to the compensation that committee members could anticipate they would enjoy if they were carrying out their job functions at the time of the committee meeting.

20The basis for counsel of Ministry’s position can be summed up as follows. Section 10 of the Interpretation Act R.S.O. 1990 c.I.11 provides that every statute, including the Act, is deemed to be remedial, and, as such, to be given as fair, large and liberal construction and interpretation as will best ensure the objective of the statute. The Act’s objectives are two fold. One is to ensure compliance with the standards set out in the Act and its Regulations. The other is to establish and maintain in all workplaces what is known as the “internal responsibility system” in which all workplace participants work together to resolve problems arising out of workplace hazards, for which the Act does not have specified standards or solutions: see Kendan Manufacturing Ltd. (unreported decision of J. McNair, dated October 8, 1980, pursuant to a hearing of an appeal to the director under the Occupational Health and Safety Act, 1978). An expansive interpretation of the Act that gives effect to the objectives of the Act requires the employer in this case to pay committee members the rate of pay applicable under the collective agreement as if the employee were otherwise working. In this case, that means Mr. Stapleton must be paid overtime for the five hours in question.

21The problem with the Ministry’s position, is that it suggests that in determining what is “proper” within the meaning of subsection 9(35), the intention of the parties to the collective agreement should be given only partial effect. That is, give effect to the intent in one part of the agreement that confers a general (and superior) entitlement (i.e. overtime pay) to employees, despite the appearance of an intent elsewhere in the agreement to carve out an exception from that general entitlement, namely time spent in monthly committee meetings. However, if resort to the collective agreement is in any way integral to a determination as to what is “proper” compensation, it would appear to be necessary to resort to the whole collective agreement and not just part of it. Short of the parties demonstrating through their collective agreement language an intent that is unlawful, either consciously or unwittingly, it would appear that the Board should give effect to the full intent of the parties in determining what is the “proper” rate of pay within the meaning of subsection 9(35).

22Article 7 of the collective agreement deals in general with terms and conditions of employment related to hours of work and overtime for all employees of the company. Article 7.02 defines the workweek and the number of hours of work per week. With respect to the general entitlement to overtime, section 7.04 states:

Any work done outside of the regular schedule will be paid overtime at the applicable rate.

All regular scheduled hours worked by an employee on a Sunday shall be paid at the employee’s straight time rate plus a premium equal to the lesser of his straight time rate or eighteen dollars ($18.00) per hour.

23Section 7.05 goes on to delineate specific rates of pay for specific types of overtime, including the rate of pay payable to an employee called into work during “off-regular” hours.

24This then brings us to section 26.05, cited above. Section 26.05 states in clear and unequivocal language that for all time spent in connection with work of the committee the members are entitled to the applicable hourly rate, the only exception being monthly meetings which are paid at the straight time hourly rate.

25Section 26.05 of the collective agreement is a specific provision governing the pay and overtime entitlements of a group or category of employees separate and apart from all other employees. Section 7.04 is the general provision for all employees concerning overtime. It is a basic rule of interpretation that a specific provision takes precedence over a general provision in the absence of any indication in the document that the general provision has application despite a specific provision to the contrary: see Brown and Beatty, Canadian Labour Arbitration, 3^rd ed. looseleaf, para. 4:2100. Consequently, section 26.05 takes precedence over section 7.04, and is the applicable provision to be applied in this case. The parties to the collective agreement have clearly set their mind to the issue of compensation for committee members. The parties to this collective agreement envisioned that while engaged in committee meetings, the committee members’ individual straight time hourly rates, and only those rates, would apply. At all other times, the committee members would be entitled to the rate of pay applicable to them, including any applicable premium pay, at the time of carrying out their other committee duties. There may well have been good policy reasons for making this distinction, reasons that no doubt flow from an ongoing and lengthy collective bargaining relationship, with all its inherent complexities, nuances and compromises.

26Counsel for the Ministry raised three other points challenging the company’s position. First, it was submitted that if the company’s position were accepted it would lead to an anomaly in that the time spent preparing for the monthly committee meeting would be paid at the applicable rate of pay - because such preparation time would be considered “time spent in connection with work of the Committee” within the meaning of section 26.05 of the collective agreement – while time spent during the committee meetings would be paid only at the straight time hourly rate. I do not think that the language of section 26.05 necessarily gives rise to such an interpretation. Section 26.05 does not refer specifically to attendance at monthly meetings, or to preparation for such meetings. The language simply refers to “monthly meetings”. Had the parties intended to delineate between the two well-known statutory activities of attendance at and preparation for committee meetings, they could easily have done so. In the absence of such a distinction, the Board’s view is that the term “monthly meetings” refers to the statutorily sanctioned activities of both preparation for and attendance at the committee’s periodic meetings, and as such, preparation time would be compensated at the members’ straight time hourly rate.

27Counsel for the Ministry’s second challenge to the position of the company is that it could result in a penalty to committee members. The example used was that of the committee member who is working an overtime shift and being compensated at overtime rates. In the event he or she had to attend a committee meeting during that shift, he or she would be reduced to his or her straight time hourly rate for the period of time in attendance at the meeting. This would result in a disincentive to persons who are members of, or are thinking of joining, a health and safety committee.

28The Board is of the view that the likelihood of such a scenario emerging is remote. It was not disputed that the committee’s meetings are held monthly and scheduled in advance. There was no evidence that such meetings are ever held spontaneously. In the end, though, even if some meetings have to be scheduled when a committee member is scheduled to work overtime, the parties have agreed to straight time pay during the course of the meeting. Short of violating the Employment Standards Act, they are entitled to agree to such an arrangement.

29The third challenge brought by counsel for the Ministry related to the implications of the company’s position, if successful, in workplaces throughout the Province. The suggestion appeared to be that if the company’s position succeeds, members of health and safety committees throughout Ontario will be negatively affected potentially when it comes to the issue of compensation for time spent in committee meetings. The Board is of the view that the outcome of this case must be understood within its unique facts. The company and the union are parties to a collective agreement, with specific language applicable to hours of work, overtime, and most significantly, to compensation payable to health and safety committee members. The parties to the collective agreement freely negotiated these provisions, and it would appear that in the unique circumstances of this case, the parties concluded that it was appropriate that the members of the health and safety committee should be paid their straight time hourly rate for time spent in committee meetings. The outcome of this matter does not affect members of health and safety committees except to the extent that they are members of bargaining units and covered by similar collective agreement provisions.

30The Board finds that the company’s application should succeed. The determination of what is the “proper” rate of compensation within the meaning of subsection 9(35) of the Act must take into account the whole intention of the parties to the collective agreement in this case. That intention is clearly expressed as follows: while applicable overtime and other premiums are payable during health and safety committee activities, they are not payable during health and safety committee meetings, and the preparation therefor.

31The application is allowed. The order of the inspector is rescinded.

32In light of the findings and order of the Board, it is unnecessary to deal with the company’s argument that the inspector’s order failed to comply with subsection 57(3) of the Act.

“Patrick Kelly”

for the Board