Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 October 20, 2014 ArbitrAtion AwArds scheduled shifts before and after the Victoria Day holiday and ar- gued this entitled him to holiday pay as stipulated by the collective agreement. Management, how- ever, maintained Tirath was asked and agreed to work that day. When Tirath failed to report to work on the holiday, he wasn't paid. The employer disputed Tirath's claim employees are required to sign consent to accept overtime as- signments. Management testified employees are asked by their team leaders whether or not they want to accept an overtime assignment. Employees who give their verbal consent are marked down on the attendance list as a "yes." The list is then posted on the work station bulletin board. The employer argued Tirath agreed to the overtime assignment on the holiday weekend and was subsequently marked as a "yes" on the attendance list but failed to show up on the day. Teamsters Local Union 847 filed a grievance on Tirath's behalf. The union submitted the employer should have paid Tirath for the holi- day because it could not present any evidence showing he was in fact asked and agreed to work that day. Tirath worked his regularly scheduled shifts before and after the holiday. The union claimed this alone entitled Tirath to the holiday pay by application of the clear lan- guage of the collective agreement, which states, "In order to qualify for payment for any of the paid holi- days, an employee must work the entire scheduled work day imme- diately before and his entire sched- uled work day following the holi- day, unless he has obtained prior permission to be absent." Having satisfied these stipula- tions, the union argued, the em- ployer was obliged to pay Tirath for the day even if he had previously agreed to work on the holiday but failed to report for work. The employer argued that Tirath contradicted his own testimony about signing for confirmation of an overtime assignment, admit- ting to many examples of working overtime where no signature was provided. Furthermore, the employer submitted that a subparagraph of the Employment Standards Act was clear that an employer is not required to pay an employee for the holiday where the employee "without reasonable cause, per- forms none of the work that he or she agreed to perform on the public holiday." Arbitrator Gordon F. Luborsky found Tirath's testimony concern- ing the assignment of overtime duties was not credible. Tirath had no explanation for the discrepan- cies between his testimony and the written record, Luborsky said, and either deliberately lied or was com- pletely mistaken. "I can have little confidence in the grievor's credibility and thus must find that the grievor accepted an overtime assignment scheduled for May 19, 2014, and then failed to report for work without calling the employer in advance to explain his absence," Luborsky said. Because Tirath failed to report for work without providing any reason, let alone showing the "rea- sonable cause" as required under the subparagraph of the Employ- ment Standards Act, Luborsky found he was not entitled to receive payment for the Victoria Day holi- day. The grievance was dismissed. Reference: ABC INOAC Exterior and Teamsters Local Union 847. Gordon F. Luborsky — arbitrator. Allen V. Craig for the employer, Fernanda Santos for the union. Sept. 25, 2014. Contract restricts job duties on production set ThE JOB yOU were hired to do is the only job you are required to do, one production company in Nova Scotia was told by an arbitrator. The Directors Guild of Canada filed a grievance when a production company, Haven 3 Productions, adopted the practice of requiring assistant directors to handle the payments made to background performers or "extras." The directors union argued the task of handling cash payments and issuing and signing cheques did not fall within the job duties and re- sponsibilities of assistant directors. The tasks and job duties of as- sistant directors were described and circumscribed by provisions in the core agreement negotiated be- tween the guild and the production company, the union went on to say. Moreover, the duties of assis- tant directors involve the artistic, creative and logistical aspects of producing a film — aspects of pay- roll (which included paying extras) were the purview of the accounting department as outlined in the core agreement. Conversely, the company claimed the job descriptions and classifications outlined in the core agreement were not watertight compartments. The employer said the classifications and job descrip- tions were broad enough to incor- porate some ancillary tasks without violating the collective agreement. Of particular concern was the fact that the section of the core agreement pertaining to the tasks a producer can assign an assistant director begins with the phrase, "without limitation." And "without limitation" means exactly that, the production com- pany contended. The employer also argued that it was reasonable under the man- agement's rights clause in the core agreement for the producer to re- quire assistant directors to handle the payments to the extras. The Arbitrator disagreed. In his decision, arbitrator Au- gustus Richardson noted Haven 3 Productions was correct that the intent of the core agreement was to allow the producer the freedom to assign tasks beyond those that were expressly enumerated in the core agreement. "However, that conclusion does not mean that the parties intended or agreed to a power on the part of a producer to assign any duty or responsibility to an assistant direc- tor," the ruling reads. The design of the core agree- ment reflected the intent of the parties to allow producers freedom to assign workers a variety of tasks within their general classifications and according to their affiliation with either the production depart- ment, the art department, the pic- ture editing department, the sound editing department or the account- ing department. As such, the structure of the core agreement made it clear that the intent of the parties was to demar- cate areas of "trade jurisdiction" for guild members. "This brings us back to the nub of the question: can assistant direc- tors be assigned the duty of paying cash background performers at the end of the day?" Richardson mused. "Taken together, the work of the di- rector and of the assistant director is work that emphasizes the artistic or creative decisions that animate, guide or realize the "production" (which is defined as 'a recorded audiovisual work whether such re- corded work is fixed on film, tape or otherwise). None of this points to payroll, which is part of the back- ground administration which un- derlies the artistic, technical and professional work." On the other hand, the duties assigned to accountants under the core agreement made specific ref- erence to the "processing of the cast and crew payroll." It was clear, the arbitrator said, that the intent of the core agree- ment was to assign the duties asso- ciated with the calculation, prepa- ration and processing of payments to actors and crew to workers de- scribed in the accounting classifica- tion. "I am accordingly satisfied that the duties and responsibilities that a producer must or may (as the case may be) assign to assistant direc- tors — whether first, second, third or fourth — do not include the pay- ment of background performers," Richardson said. Reference: Directors Guild of Canada, Atlantic General Council and Haven 3 Productions Inc. Augustus Richardson — arbitrator. Noella Martin for the union, Richard M. Dunlop for the employer. < from pg. 1

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