Canadian Labour Reporter

October 11, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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while DDs are dispatched to dif- ferent employers on a day-to-day basis as needed. Waterfront employers order workers from the local union dis- patch hall, where DDs are selected shortly before a shift. DDs indi- cate their availability each day by coming to the hall and "plugging in." Once a DD is plugged in, they can unplug at any time prior to be- ing dispatched for a shift. DDs can also be called back to a job if conti- nuity is needed, which eliminates the need for the worker to go to the dispatch hall the next day. DDs who want to take vacation days or bereavement leave have to notify the association in advance but they don't receive personal leave. The longshore workers' union filed a grievance to determine whether DDs are entitled to per- sonal leave under the Canada La- bour Code. The code entitles em- ployees to personal leave of up to five days per calendar year for: ill- ness or injury; family care respon- sibilities; responsibilities related to the education of family mem- bers under 18; and addressing ur- gent family matters. For employ- ees who have completed three consecutive months of continu- ous employment, the first three days of the leave must be paid. Longshore workers are includ- ed in a regulation under the code, which states that someone "en- gaged in multi-employer employ- ment" is continuously employed. The definition of "multi-employer employment" includes longshor- ing employment in any port in Canada where the usual course of employment involves being employed by more than one em- ployer. The association argued that DDs are not entitled to paid per- sonal leave because the nature of their employment allows them to be unavailable for dispatch when- ever they want, leaving them free to modify their work schedule for any personal leave obligation. The purpose of the personal leave provision in the code is to "pro- vide employees with the flexibil- ity to attend to important matters where it would otherwise be dif- ficult or even impossible for them to do so due to a requirement to attend work" — but DDs had that flexibility already, the association said. The union countered that DDs would be disadvantaged if they were denied access to personal leave because it wouldn't count towards their calculation of statutory holiday pay, as bereave- ment leave and vacation leave does. In addition, there was no guarantee a DD could recover a lost shift. The arbitrator noted that la- bour legislation should always be interpreted in favour of em- ployees if there was more than one possible interpretation. The purpose of the personal leave entitlement was to mitigate em- ployment-related impacts from an absence due to a personal leave obligation, such as compensation for lost wages. The arbitrator found that the code specifically references multi- employer employment as con- tinuous employment and explic- itly recognizes "the non-standard customary employment regime governing the daily dispatch long- shore worker." Since DDs were employees on par with other em- ployees, it made sense that the intention of the legislators was to include them in the eligibility for personal leave. "The customary multi-em- ployer dispatch regime contem- plates that the association may only draw from the pool of daily dispatch longshore workers who choose to be available for work opportunities on any given shift," said the arbitrator in allowing the grievance. "It is evident that Parliament chose to extend the personal leave entitlement to this category of employee, regardless of that freedom." Reference: British Columbia Maritime Employers' Assn. and ILWU Canada. Ken Saunders — arbitrator. Gavin Hume, Q.C., Alyssa Paez for employer. Craig Bavis for employee. July 2, 2021. 2021 CarswellNat 2750 a day or on a regularly scheduled day of rest shall be paid at double (2x) the basic rate." Another pro- vision allowed for an exception to the double-time rule by stat- ing: "An employee's work shift may be changed without notice in the event of absence of other staff due to sickness or accident or in the event of emergencies and/or act of God, and break- down of machinery or other in- stances of force majeure." Jan. 16 was a regular day of rest for all 30 Coldstream em- ployees who worked that day. The company told the union that the reason for the overtime was "a company-wide decrease of staff due to COVID-19 (illness and quarantine)" and asked it to consider this an emergency that would allow time-and-a-half pay instead of double time. The union disagreed, arguing that the Saturday overtime was "a business decision made by Coldstream to assist Quebec; it was not force majeure." It noted that the company knew three days earlier that it would need overtime on Jan. 16, so it was foreseeable. It also argued that the outbreak at Sherrington was reasonably foreseeable because the pandemic had been ongoing for nearly a year. The company countered that it didn't know the extent of its overtime needs until the day before, when it knew for sure how many people were sick. It had also initially hoped to fill outstanding orders on Jan. 14 and 15. The company also pointed out that Coldstream had a poor attendance rate and it might have been able to fill its orders without Saturday over- time if attendance had been better on the previous Thurs- day and Friday. The arbitrator noted that the purpose of the double-time pre- mium was to "deter the employ- er from scheduling employees to work on a day of rest in the ordi- nary course of its business." The emergency exception provided the company with "partial insur- ance" in case it couldn't avoid scheduling employees on a day of rest to meet unforeseeable op- erational needs. The arbitrator found that the demand for labour at Cold- stream on Jan. 16 was due to a legitimate need to meet unfilled orders and the company didn't know how much it would need until the day before — it asked for volunteers three days ear- lier and took reasonable steps to avoid it. The combination of the surge in orders from the outbreak, the inability to meet the demand on the previous two days, and the poor attendance the previous week created an emergency that fell within the realm of the collective agree- ment's exception, the arbitrator said. The arbitrator noted that the fact that the pandemic had been ongoing did not mean the company could have foreseen the surge in orders. Due to the nature of the product, orders had to be filled quickly and both facilities coordinated with each other to meet customer de- mands. The grievance was dis- missed. Reference: Salade Etcetera! and UFCW, Local 1518. Ken Saunders — arbitrator. Colin Estrom, Claire McLeod for employer. Shari Jensen for employee. July 15, 2021. 2021 CarswellBC 2347 Collective agreement had exemption for 'force majeure' Association argued workers could choose to not be available < COVID pg. 1 < Longshore pg. 1 October 11, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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