FPSLREB Decisions

Grievance referred to adjudication

1 This is a reference to adjudication filed by Terrence Palmer, a member of the Operational Services Group, classified as an HP-3.  Mr. Palmer is claiming shift and weekend premiums for working two overtime shifts.

2 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.  Pursuant to section 61 of the Public Service Modernization Act, I continue to be seized with this reference to adjudication, which must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“the former Act”).

Summary of the evidence

3 The parties presented an Agreed Statement of Fact, as well as two extracts from the Operational Services Group Collective Agreement (Expiry Date August 4, 2003).

4 The Agreed Statement of Facts reads as follows:

1. The grievor, Terrence Palmer, is an employee of the Department of National Defence.

2. He is employed at Canadian Forces Base Borden.

3. At the time of his grievance, the grievor was covered by the Operational Services group collective Agreement between the Treasury Board and the Public Service Alliance of Canada that expired on August 4, 2003.

4. At the time of his grievance, the grievor was classified at the HP-3 level.

5. At the time of his grievance, the grievor was working as a supervisor.

6. The grievor’s regularly scheduled hours of work are from 7:30 am to 4:00 pm, Monday to Friday.

7. On Sunday June 9, 2002, the grievor was called in to work to replace an employee who had been scheduled to work a 12 hour shift that day but had called in sick.  The grievor agreed to work the shift as there was no other employee available to do so.

8. On June 9, 2002, the grievor reported to work and worked a 12 hour shift, from 7:30 am to 7:30 pm.

9. The grievor was again required to replace an employee who was unable to work a 12 hour shift due to illness on the Monday shift of August 5, 2002.  Again the grievor agreed to work the shift as there was no other employee available to do so.

10.  The Monday August 5^th shift actually began at 7:30 pm on Sunday August 4, 2002 and ended at 7:30 am on Monday, August 5^th, 2002.  The grievor reported to work on Sunday August 4^th at 7:30 pm and worked the 12 hour shift until 7:30 am on the Monday.

11.  The grievor was paid for the overtime worked on both days in question.

12. The grievor was not paid the shift premium for all hours worked, including overtime hours, between 4:00 pm and 8:00 am on Sunday June 9, 2002 and between 4:00 pm and 8:00 am on the Monday August 5, 2002 shift.

13. The grievor was also not paid the weekend premium for all hours worked, including overtime hours, on Sunday June 9, 2002 and Sunday August 4^th, 2002.

14. The grievor is seeking payment of the shift premiums and weekend premiums for the two days in question.

15. Specifically, he seeks payment of the shift premium for the following periods:

    • Sunday June 9 – 4³⁰ pm – 7³⁰ pm (3.5 hrs)

    • Monday Aug. 5 – 7³⁰ pm – 7³⁰ am (12 hrs)

                               (Sun.)           (Mon.)

      (shift starting Sun. Aug. 4)

    and he seeks payment of the weekend premium for the following periods:

    • Sunday June 9 – 7³⁰ am – 7³⁰ pm (12 hrs)

    • Sunday Aug. 4 – 7³⁰ pm – 12 midnight (4.5 hrs)

Summary of the arguments

Argument for the Grievor

5 With respect to the shift premium entitlement, clause 6.01 of Appendix “D” of the Operational Services Group Collective Agreement applies.  It states (Exhibit G-1):

Shift Premium

6.01 An employee working on a twelve (12) hour shift schedule shall receive a shift premium of one dollar and seventy-five cents ($1.75) per hour for all hours worked between 4 p.m. and 8 a.m.  The shift premium will not be paid for hours worked between 8 a.m. and 4 p.m.

Effective August 5, 2002:

An employee working on a twelve (12) hour shift schedule shall receive a shift premium of two dollars ($2.00) per hour for all hours worked between 4 p.m. and 8 a.m.  The shift premium will not be paid for hours worked between 8 a.m. and 4 p.m.

6 Mr. Palmer is an employee and he worked the shifts in accordance with the Collective Agreement.  On two occasions, namely June 9 and August 5, 2002, he worked a 12-hour shift schedule and is entitled to a shift premium for each of those shifts.  There is no question that he meets the definition of an employee, as found in Clause 2.01 of the Collective Agreement.

7 In Ilkanic v. Treasury Board (Canada Employment and Immigration Commission), PSSRB File No. 166-2-14259 (1984), at paragraph 18, it states, in part:

[…]

Clause 31.01 (b) does not refer to a shift worker, but rather to “an employee”, in my opinion meaning, “any employee”.  Ms. Ilkanic meets the definition of an employee.

[…]

8 The same is true here.  Mr. Palmer is an employee working on a 12-hour shift schedule who replaced another employee who was scheduled to work the 12-hour shift.

9 As was stated in Barnes and Solowich v. Treasury Board (Ministry of Transport), PSSRB File No. 166-2-1828 and 166-2-1829 (1975), at page 6:

[…]

…that a “shift” is generally understood in the industrial environment to describe regular periods of daily time during any week when an employee or employees are required to be at work is beyond any doubt.  As the title to article 31.01 proclaims this is a premium which attaches to such periods of time and not to the particular working hours of any employee.  There is simply nothing in article 31.01 which would suggest the word shift is to have such a personalized meaning.

[…]

10 The same situation applies in the case of Mr. Palmer.  If one works the 12-hour shift schedule, one falls within the provisions of clause 6.01 of Appendix “D” of the applicable collective agreement and is entitled to receive the shift premium.

11 The fact that Mr. Palmer received overtime for working these two shifts does not mean that he is not entitled to receive the shift premium.  In Cox v. Treasury Board (Revenue Canada – Customs and Excise), PSSRB File No. 166-2-15399 (1987) at page 6, the decision states, in part:

[…]

…when an employee works in excess of his regularly scheduled shift he is entitled to a shift premium if the regularly scheduled shift to which the overtime is attached creates a right to a shift premium.

[…]

12 Further support for this is found in Létourneau et al. v. Canada Customs and Revenue Agency, 2003 PSSRB 81 at paragraph 26, where it states, in part:

[Translation]

[…]

…based on the principle developed in R. Barnes and G. Solowich, supra, the parties intended to include the phrase between commas as a matter of clarification in order to ensure that the employees would be entitled to the shift premium in addition to the overtime rate for shifts creating a right to the shift premium.

[…]

13 With respect to the entitlement to receive the weekend premium, the entitlement flows from Clause 27.02 of the applicable Collective Agreement (Exhibit G-1).  It reads:

27.02 Weekend Premium

An employee working on shifts during the weekend will receive an additional premium of one dollar and seventy-five cents ($1.75) per hour for all hours worked, including overtime hours, on Saturday and Sunday.

Effective August 5, 2002

An employee working on shifts during the weekend will receive an additional premium of two dollars ($2.00) per hour for all hours worked, including overtime hours, on Saturday or Sunday.

14 Again, Mr. Palmer is an employee who worked two shifts.  A weekend premium is attached to both shifts and this premium should be added to his overtime premium.

15 In the alternative, Mr. Palmer is a shift worker by virtue of the fact that he works Monday to Friday, 7:30 am – 4:00 pm.  Those are his shifts, so he is a shift worker.  All employees classified as HP-1 would be considered shift workers.

Argument for the Employer

16 The case law of the bargaining agent deals with collective agreement provisions that are different from what is found here.  The Operational Services Group Collective Agreement has an additional piece of language.  It states “shifts”, in the plural form.

17 The Collective Agreement refers to a shift worker and, although not defined, it is generally understood that a shift worker and a day worker are different.  The PSSRB decision of Freitag et al. v. Treasury Board (Department of Agriculture), PSSRB File Nos.  166-2-8086 to 8090 (1980), stands for the proposition that the only alternative to day work is shift work.  Mr. Palmer was a day worker.

18 Not all employees in the HP group are shift workers.  If that were the case, there would be no need to say that all employees on shifts get the premium, as the premium would simply apply to everyone.

19 As seen in Barnes (supra), a shift premium is a reward for employees who, on a regular basis, work irregular hours.  It is intended to be a regular payment to employees who regularly work those hours, unlike Mr. Palmer’s situation.  He replaced someone who regularly worked on a 12-hour schedule.

20 If the Collective Agreement required payment simply for working a 12-hour shift, Mr. Palmer would get it.  However, the Collective Agreement says payment is made to someone who works a 12-hour shift schedule.  Mr. Palmer does not work a 12-hour shift schedule.

21 The rules of interpretation require giving an ordinary meaning to the words.  Working a 12-hour shift schedule refers to the overall working conditions of the employee, not to individual shifts.

22 Clause 25.02 of the applicable Collective Agreement contemplates a distinct concept of two types of workers, one who works five consecutive days on a regular basis and one who works on a rotating basis (Exhibit E-1).  It states:

25.02

(a) For employees who work five (5) consecutive days per week on a regular and non-rotating basis, the Employer shall schedule the hours of work so that these employees work the standard work week as specified in the Group Specific Appendix.

(b) When hours of work are scheduled for employees on a rotating or irregular basis, the Employer shall schedule the hours of work so that employees work an average of hours as specified in the Group Specific Appendix.

23 Furthermore, Appendix “D” of the applicable Collective Agreement also refers to these same two types of employees by saying (Exhibit G-1):

3.03 When hours of work are scheduled for employees on a regular basis, they shall be scheduled so that employees:

(a) on a weekly basis, work forty (40) hours and five (5) days per week, and

(b) on a daily basis, work eight (8) hours per day.

3.04 When, because of the operational requirements of the service, hours of work are scheduled for employees on a rotating or irregular basis:

(a) they shall be scheduled so that employees:

(i) on a weekly basis, work an average of forty (40) hours and an average of five (5) days per week,

and

(ii) on a daily basis, work eight (8) hours per day;

24 There was no question that Mr. Palmer worked a 12-hour shift.  However, he did not work on a 12-hour shift schedule, so he is not entitled to the premiums requested.

Reasons

25 This case boils down to interpreting Clause 6.01 of Appendix “D”:  Shift Premium, and Clause 27.02:  Weekend Premium.

26 A common rule in interpreting language in any Collective Agreement is that the words have to be given their ordinary and proper meaning.

27 Clause 27.02:  Weekend Premium, states, in part:

[…]

27.02 Weekend Premium

An employee working on shifts during the weekend will receive an additional premium of one dollar and seventy-five cents ($1.75) per hour for all hours worked, including overtime hours, on Saturday or Sunday.

Effective August 5, 2002

An employee working on shifts during the weekend will receive an additional premium of two dollars ($2.00) per hour for all hours worked, including overtime hours, on Saturday or Sunday.

[…]

28 The Agreed Statement of Facts states that Mr. Palmer worked one shift on Sunday, June 9, 2002 and that he worked another shift on Sunday, August 4, 2002, this one extending into Monday.

29 For whatever reason, the parties have agreed that a Weekend Premium is owing to an employee who works on shifts (plural).  This would be more than one shift.  Furthermore, it states “during the weekend”.  In this case, I find “the weekend” to include June 9 and Mr. Palmer only worked one shift.  He would, therefore, not qualify for a weekend premium.  Similarly, “the weekend” would include August 4 and, again, Mr. Palmer only worked one shift.  Again, he would not qualify for a weekend premium.

30 The shift premium rewards an employee who works on a 12-hour shift schedule.  The employee does not have to work on a weekend to receive this benefit, but it is paid for hours worked between 4:00 p.m. and 8:00 a.m.  In order to receive it, the employee has to work on a 12-hour shift schedule.  Mr. Palmer worked a 12-hour shift.  However, he did not “work on a twelve hour shift schedule”.  The Agreed Statement of Facts, at paragraph 6, states:

The grievor’s regularly scheduled hours of work are from 7:30 am to 4:00 pm, Monday to Friday.

31 The fact that Mr. Palmer worked a 12-hour shift does not mean that he qualifies for receipt of a shift premium.  Rather, he must work on a 12-hour shift schedule to receive this benefit, and he did not.

32 For all of the above reasons, I make the following order:

Order

33 The grievance must be denied.

April 13, 2005.

Joseph W. Potter,
adjudicator