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Issue link: https://digital.hrreporter.com/i/1285703
September 7, 2020
available." This had been amended
from the previous agreement that
had indicated overtime would be
made from "the previous updated
overtime distribution list."
It was regular company prac-
tice to offer overtime shifts to
qualified employees with the least
overtime on the latest distribution
list in effect on the date the shifts
were to be worked.
If an error was made in an over-
time offer, SGS had to either offer
a similar assignment within 30
days or pay the affected employee
compensation equal to the missed
overtime assignment.
Randy Lucier worked for SGS
in Sarnia, Ont., helping with the
handling and testing of industrial
materials as well as providing se-
curity for transport ships. SGS
published a distribution list dated
Feb. 23, 2019, and it listed Lucier
as having worked 84 overtime
hours to that point in the year. The
following week, the scheduling
supervisor told the scheduling ad-
ministrator to schedule planned
overtime the week before the start
of the new pay period to allow for
better planning. Shortly thereaf-
ter, SGS offered another employee
(JS) — who had 72.5 overtime
hours on the Feb. 23 list — two
overtime night shifts for March 16
and 17.
The next day, a new list came
out with a March 9 date. It listed
Lucier with 100 overtime hours
and JS just ahead of him with
100.5. After JS worked the March
16 and 17 overtime shifts, the
union filed a grievance claiming
that SGS breached the collective
agreement. It argued that the two
shifts in question fell within the
period governed by the March
9 distribution list and therefore
should have been offered to Lucier
first.
The arbitrator found that the
removed reference to "the previ-
ous updated overtime distribu-
tion list" wasn't replaced with
similar language in the current
agreement, which only required
SGS to reset the list at the begin-
ning of the calendar year but not
to offer overtime based on a list
from a particular date during the
year.
"Had the parties intended to
direct the company to utilize only
the biweekly overtime distribu-
tion list that was concurrent with
the overtime to be worked, it
would have logically done so with
express language to that effect, in-
stead of leaving the matter silent,"
said the arbitrator. "That silence,
in fact, speaks volumes about the
parties' intent where in the ab-
sence of specific language to the
contrary, there is a strong man-
agement rights clause conferring
a broad discretion on the com-
pany to schedule or assign work
to bargaining unit members as the
company considers appropriate in
its legitimate business interests."
The arbitrator dismissed the
grievance on the basis that the
language in the current agree-
ment didn't "expressly or infer-
entially require the company to
use the two-week overtime dis-
tribution list that coincides ex-
actly with the date of the overtime
work, as opposed to some earlier
overtime distribution list."
Reference: SGS Canada and Unifor, Local 872. Gordon Luborsky — arbitrator. Jeffrey Murray for employer. Robert
Church for employee. Aug. 10, 2020. 2020 CarswellOnt 11316
Company wins dispute due to lack of language
Holiday pay, overtime pay not the same: arbitrator
The collective agreement pro-
vided for overtime pay at a rate
of time and one-half for hours
worked beyond 80 in each two-
week period. Employees were also
entitled to the same rate of pay for
working on a public holiday.
Otherwise, employees were
entitled to holidays off with pay
under the Ontario Employment
Standards Act, 2000 (ESA).
The collective agreement also
contained a provision prohibit-
ing "duplication or pyramiding
of any premium payments or
compensating leave," defining
pyramiding as receiving "mul-
tiple pay premiums for the same
hours worked."
Thanksgiving — which is a
public holiday in Ontario — fell
on Oct. 14 in 2019. The company
scheduled a particular worker
whose position was that of patrol
operator to work a full nine-hour
day.
The worker's last day of work
for the pay period was Oct. 20 and
when he had finished, he had put
in a total of 89.5 hours over the
two weeks.
The company paid the worker
80 hours at his straight time rate,
nine hours at time and one-half
for working on Thanksgiving, and
another half-hour at the time and
one-half rate for the remaining bit
of overtime.
The union grieved the calcu-
lation of the worker's pay, argu-
ing that the worker in fact put
in nine and one-half hours of
overtime for the pay period, not
just a half-hour. It argued that
there was nothing in the collec-
tive agreement that prevented
the hours worked on the holi-
day from being counted as part
of the total hours worked over
the pay period for determining
overtime.
The rule against pyramiding
didn't apply because the holiday
pay rate and the overtime pay
rate were separate things — the
former designed to compensate
employees for working on a public
holiday and the latter for working
more than 80 hours in a biweekly
period, the union said.
The company countered with
the argument that the ESA states
that hours worked on a public
holiday are not to be included in
calculations for overtime pay and
the collective agreement didn't
provide for anything more than
the ESA standard.
The arbitrator noted that the
hours worked on Oct. 14 fell un-
der the holiday pay rate and that
even without those hours count-
ed, the worker put in more than 80
hours over the two-week period,
entitling him to overtime pay.
As for the no-pyramiding
clause, the arbitrator found that
it didn't apply under the circum-
stances. The union wasn't seek-
ing multiple pay premiums for the
same hours worked.
Instead, it was seeking premi-
ums for the hours worked on the
holiday and the hours worked that
put the worker past the 80-hour
threshold — which the worker
worked on the last day of the pay
period and were not the same, said
the arbitrator.
"The grievance before me seeks
the overtime premium for differ-
ent hours than were worked to
attract the holiday pay premium,"
said the arbitrator. "It is not just
different hours; it is different days
in a different week."
The arbitrator noted that there
were cases involving collective
agreements that specifically ad-
dressed situations where an em-
ployee sought to include hours
paid at overtime rates under one
provision in calculating overtime
under another provision. Howev-
er, the collective agreement here
did not.
The arbitrator upheld the
grievance and ordered Cochrane
Highway Maintenance to com-
pensate the worker for overtime
worked on Oct. 20, 2019.
Reference: OPSEU, Local 649 and Cochrane Highway Maintenance. Matthew Wilson — arbitrator. David Defrancesco,
Deborah Crawford for employer. Dan Hales, Mike Lizotte for employee. Aug. 11, 2020. 2020 CarswellOnt 11535