Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 October 27, 2014 ArbitrAtion AwArds emergency medical and ambu- lance services for various towns in Saskatchewan) had a longstand- ing practice of assigning overtime shifts for employees, however, of concern was that stand-by pay was significantly lower than the regular rate of pay. According to the union, the stand-by provisions in the col- lective agreement were created so employees could be with their families and maintain some sem- blance of their normal lives — that is sleep, shop, cook and the like without significant disrup- tion, all the while being able to re- spond to the employer's request in a timely fashion. Therefore, the union argued that being on stand-by away from their home base differed vastly from being on stand-by at home. The issue is not the nature of the work but rather the applicable rate of pay. For casual employees, the stand-by rate was $5 per hour, compared to regular pay which approaches $30 per hour. For full-time workers, stand-by shifts are offered, not assigned, and the rate of pay is $2.19 per hour. On the other hand, Sunrise Health said its practice of assign- ing shifts for various locations had been in place since 2006. Further, the company said it needed to have round-the-clock emergency services in certain lo- cations, and the need to reassign assignments was the result of un- planned staff shortages. While stand-by pay was out- lined in the collective agreement, the union said the work that was being assigned was not, by defi- nition, stand-by pay, but rather regular work. Because of the language in the collective agreement, arbitrator William Hood said the question was whether stand-by pay was applicable when an employee was designated to report from work and stay in another loca- tion, or whether it applied only to cases where an employee must be available without undue delay to report for duty. Hood went on to say that the stand-by rate was, compared to the regular rate of pay, miniscule. Moreover, there was only one stand-by rate, regardless of where the employee was required to be on stand-by. "Simply put, it is my view that, given the stand-by payment in the collective agreement is so disproportionally low compared to the regular pay rate, it was in- tended as the pay rate for stand- by while at the home base only, and was never intended as a rate of pay when the employee was deprived of the majority of those benefits he or she expected to re- ceive in return for the remaining on stand-by at low stand-by pay- ment rates," Hood explained in his decision. As such, the grievance was up- held, and Sunrise Health was or- dered to take sustained. Reference: Health Sciences Association of Saskatchewan and the Sunrise Health Region. William J. Hood — arbitrator. Dale Hallson for the employer, Gary Bainbridge for the union. Oct. 16, 2014. Union calls foul over commission UnifOR lOcal 87-m filed a grievance against the Water- loo Region Record, claiming the Ontario-based company failed to compensate employees as re- quired by the collective agree- ment. The Waterloo Region Record produces a newspaper that fre- quently includes advertising known as a "vendor support fea- ture." Vendor support feature ad- vertising features a client who is showcased by the employer and then supported by other clients who place advertising in support of the featured client. While telesales employees may be involved in securing such cli- ents or in selling the supporting advertising, more often it is the account executives at the com- pany who are responsible for this work. The compensation of both ac- count executives and telesales employees includes payments of commission. According to the collective agreement, telesales employees are entitled to eight per cent com- mission on all sales. This commission, however, is reduced when an account execu- tive is credited with securing the vendor support feature. According to the employer, the practice of deducting commis- sion dates back approximately 10 years. Both parties agreed the prac- tice of deducting commssion from telesales employees in order to subsidize the commission of ac- count executives was "exception- ally" long-standing. The union, however, argued the longstanding nature of the prac- tice did not make it right. The collective agreement is not ambiguous, the union argued, as- serting telesales employees are entitled to "eight per cent on all sales." Telesales employees "should not have to pay for other employ- ees," the union said. The union asserted the em- ployer, and not telesales employ- ees, should be responsible for the commissions of other employees and so requested the employer cease and desist. The union further requested compensation for the affected telesales employees. The employer countered it would be absurd to conclude the parties agreed the same percent- age of sales revenue would be attributed both to account ex- ecutives and telesales employees where telesales personnel had nothing to do with securing a vendor support feature. The employer further argued the phrase "all sales" is latently ambiguous and past practice should be used as a guide to inter- pretation. Even to accept the union's argu- ment, the employer said, it would be necessary to understand "all sales" as "all their sales" as no one would suggest telesales employee are entitled to eight per cent com- mission on sales they had nothing to do with. Finally, the employer argued that if the union believed the company should no longer be en- titled to deduct the allocation to account executives, it had an ob- ligation to raise the issue during collective bargaining. It failed to do so for the past ten years, the employer argued, and the employer so requested the grievance be denied. Arbitrator James Hayes found the employer's interpretation is to be preferred. Hayes said the documentary evidence defining the past prac- tice relied upon by the employer was precise and unchallenged. "The practice was long stand- ing, transparent, understood and accepted," Hayes said. "I might note in passing that the parties have also continued a previous practice of compensat- ing account executive at a higher 25 per cent credit level than the plain language in the [collective agreement] provision requires," Hayes said, noting past practice had been accepted as legitimiz- ing this aspect of the agreement by both parties. As a result, the grievance was dismissed. Reference: Waterloo Region Record and Unifor Local 87-M. James Hayes — arbitrator. Martin J. Addario for the employer, Chris Donovan for the union. Oct. 14, 2014. < from pg. 1

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