Canadian Labour Reporter

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

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