Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 April 21, 2014 April 21, 2014 ARBITRATION AWARDS Construction and Allied Work- ers Union ran from 2010 to 2013. The days to be observed as holi- days were specifically listed, and limited to New Year's Day, Good Friday, Victoria Day, Canada Day, B.C. Day, Labour Day, Thanks- giving Day, Remembrance Day, Christmas Day and Boxing Day. But when the B.C. Family Day Act was implemented in 2012, it also amended the Employment Standards Act by adding Family Day to the definition of "statutory holiday." In 2013, Walter Energy did not observe Family Day. This spawned a grievance from the union, which argued its workers were entitled to the day off and, if not that, then the appropriate compensation under the collec- tive agreement. Had the union gotten its way, staffers would have received time and one-half for working on Family Day as they would have on any other statutory holiday. According to the Employ- ment Standards Act, if a collec- tive agreement contains a statu- tory holiday provision, then the named statutory holidays of the ESA will not apply. Essentially, a collective agreement might over- ride a provision of the ESA that has otherwise already been in- cluded in the contract. This, however, requires a spe- cific modification. The ESA now includes Family Day, and there was no specific modification in this particular agreement. "Therefore, it is wholly arti- ficial to assert that the parties made a specific modification to this new obligation before it even came into existence," the union said at the hearing. However, Walter Energy main- tained it abided by the collec- tive agreement. Only a written agreement between both parties would have the power to alter the contract and, since that did not happen, Family Day need not have been compensated for. Furthermore, the agreement named Boxing Day as a holiday, which was considered an extra day off. At the time of ratifica- tion, the ESA had only named nine holidays, one less than the collective agreement. In the em- ployer's view, its workers were receiving a bonus day off in its stead, which compensated. In making his decision, Brown took into account the direct meaning, rather than the so- called intended meaning, of the collective agreement. In the case at hand, the parties incorporated ESA-named holi- days into the collective agree- ment, save for the provisions specifically modified by the con- tract, Brown noted. By amending the number of statutory holidays in the collective agreement — that is, including Boxing Day — the parties specifically modified it. Therefore, the ESA obligations did not apply. "In agreeing to a modification, rather than having the ESA apply, the parties could have negotiated a provision to include any future statutory holidays enacted by the government, as many collective agreements do," he added. Both the ESA and the collec- tive agreement currently contain the same number of holidays, and therefore, the grievance was dis- missed. Reference: Willow Creek Coal Partnership (Walter Energy) and the Construction and Allied Workers Union Local 68. Mark J. Brown — arbitrator. Stephanie Vellins for the employer, Tim Charron for the union. March 6, 2014. Kingston employee gets schooled on education LARRY STEACY, a part-time employee with the city of Kings- ton, Ont., was refused a job inter- view because of his resumé. The city denied Steacy the op- portunity to interview for a full- time position because his resumé indicated he lacked the educa- tional qualifications required. The Canadian Union of Pub- lic Employees (CUPE) Local 109 grieved on Steacy's behalf, argu- ing his position as a part-time driver/labourer clearly demon- strated he was qualified to per- form the duties of a full-time driver/labourer. The educational requirement should have posed no barrier, it said. Steacy was hired by the city's Public Workers Department in 2007 and is the most senior part- time driver/labourer in the bar- gaining unit. In November 2012 Steacy applied to an internal job posting for a full-time position. The posting contained a list of various required qualifications and "skills, abilities, work de- mands." One of the requirements was that applicants posses "Grade 12 diploma or equivalent educa- tion." The minimum educational requirement was introduced in 2010. It applies to all promo- tions and positions with the city, though employees currently oc- cupying a position who did not possess the minimum education were "grand-parented." In its grievance the union did not challenge the legitimacy of the basic educational require- ment. Instead, it argued the re- quirement did not apply where an employee wishes to move from a part-time to a full-time position within the same work group. Furthermore, the city did not suggest the duties of a full-time driver/labourer differ in any way from those of a part-time driver/ labourer, the union said. Steacy should be awarded the position through arbitration, the union said, as he was the senior applicant and there was no doubt as to his ability to perform the work in question. But the city argued employers are entitled to set qualifications. The qualifications must be re- spected unless a union can dem- onstrate they do not relate to the job in question or are unreason- able. The "grand-parent" excep- tion has never been applied to a situation similar to Steacy's, the city said, and this type of excep- tion is not required by the collec- tive agreement. Prior to the arbitration, Steacy was advised by the Limestone District School Board that while he would be given credit for life learning/experience, he re- mained two credits short of quali- fying for an Ontario High School Equivalency Certificate. Steacy can obtain the two credits by completing an online course. At the hearing, the union ar- gued sole arbitrator James Hayes should find Steacy actually meets the educational requirements. "If Mr. Steacy had staked a claim of equivalence and, if the employer had refused to consider it, this arbitration would have had a different focus," Hayes said in his ruling. However, "The principal pre- hearing argument was, not that the grievor possessed Grade 12 equivalence, but that the edu- cational requirement was irrel- evant… Applicants had some obligation to at least claim that this minimum qualification could be met in some way. Mr. Steacy failed to do this." Because Steacy's resumé failed to make any reference to second- ary school education or equiva- lence of any kind, Hayes ruled, the city had every right to deny his application and the grievance was dismissed. "I have considerable sympa- thy for the grievor's position," Hayes said. "I must say also that my sympathy is tempered by the knowledge that Mr. Steacy ap- pears to be as close as one could be to obtaining Grade 12 equiva- lence… His seniority would ap- pear to virtually guarantee him securing such a position in the reasonably near future should he take steps to help himself. But that of course is a decision for Mr. Steacy." Reference: Corporation of the City of Kingston and the Canadian Union of Public Employees and its Local 109. James Hayes — arbitrator. Robert Little for the employer, Kathy Todd and Cheri Dobbs for the union. March 31, 2014. < from pg. 1 Employees get just as many days off : Arbitrator Agreements can override ESA's stat holidays.

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