FPSLREB Decisions

I. Individual grievances referred to adjudication

1  This decision deals with five individual grievances involving the interpretation or application of a collective agreement. They were referred to adjudication pursuant to subparagraph 89(1)(a)(i) of the Public Service Labour Relations Board Regulations, SOR/2005-79 and to paragraph 209(1)(a) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (PSLRA). The parties agreed that they could be heard together. The grievances are those of:

1. Paul O’Keefe, PSLRB File No. 566-02-2084, whose grievance was filed August 13, 2007;
2. Michael Nickerson, PSLRB File No. 566-02-2083, whose grievance was filed August 14, 2007;
3. Daniel Porter, PSLRB File No. 566-02-2085, whose grievance was filed September 10, 2007;
4. Robert Chafe, PSLRB File No. 566-02-2081, whose grievance was filed September 10, 2007; and
5. Morris Clarke, PSLRB File No. 566-02-2082, whose grievance was filed October 16, 2007.

2 The parties agreed that the grievances all arose under – and were governed by – a collective agreement between the Treasury Board (as represented by the Department of Fisheries and Oceans, or the “employer” or “DFO”) and the Public Service Alliance of Canada (the “bargaining agent”) that applied to the Technical Services Group  effective March 14, 2005 (the “collective agreement”). The collective agreement was entered as Exhibit U-1 at the hearing. The parties also agreed that I had jurisdiction to hear and determine the grievances.

3 All five grievors claimed entitlement to shift and weekend premiums available to employees pursuant to article 27 (“Shift and Weekend Premiums”) of the collective agreement, and in addition claimed that they “be made whole” (see Exhibits U-2, U-11, U-19, U-28 and U-35).

4 The employer had refused to pay the premiums on the ground that article 27 did not on the facts apply to the grievors. Hence the filing of the five grievances.

5 Sometime before the commencement of the hearing on September 8, 2010, the employer decided that Mr. Nickerson was in fact entitled to the shift and weekend premiums under article 27. It calculated the gross premium owing to be $288.00. The bargaining agent agreed that that was the principal amount owing. On a preliminary motion before the hearing the employer sought to have the Nickerson grievance withdrawn or dismissed, on the ground that it had conceded the grievance. The bargaining agent resisted the motion on the grounds that paying the gross premium due did not in fact make Mr. Nickerson “whole.” He had been out of pocket that amount for roughly three years. The bargaining agent accordingly submitted that Mr. Nickerson should be paid interest so as to be “made whole.” The employer objected on the grounds that interest was not payable in the circumstances of Mr. Nickerson’s or, indeed, any of the grievances.

6 The bargaining agent also wanted to rely upon Mr. Nickerson’s evidence insofar as the other four grievances were concerned. The employer objected on the grounds that while there had been an agreement to hear the five grievances together that did not mean that they had been consolidated. They were still five separate grievances. The employer submitted that Mr. Nickerson’s circumstances were so different from the other four that his evidence could not be relevant to them. It accordingly submitted that I ought not to hear his evidence.

7 I decided to dismiss the employer’s preliminary motion for two reasons.

8 First, there was a live issue as to whether or not Mr. Nickerson was entitled to interest on the shift and weekend premiums that the employer now conceded had been payable to him in 2007. Since the employer was not prepared to concede that interest was payable, and since Mr. Nickerson had sought to be “made whole,” I would have to hear at least some evidence and some argument concerning what was left of his grievance after the employer’s concession.

9 Second, insofar as relevance was concerned, it was impossible for me at a preliminary stage to determine whether Mr. Nickerson’s evidence was or could be relevant to the grievances of the other four. The only way to handle that problem would be to hear the evidence (subject to the employer’s concerns regarding relevance) and then decide, after all the evidence was in, whether it was relevant to the other grievances.

10 I proceeded to hear the evidence of all five grievors. The bargaining agent then closed its case. I next heard the evidence of the following people on behalf of the employer:

1. Karen Harding, Administrative Assistant for the Science Board;
2. Kim Rice, who at the relevant time was the Regional Team Leader, Labour Relations for the Atlantic Region; and
3. Barry MacCallum, who at the relevant time was Division Manager of Aquatic Resources, DFO.

11 All of the witnesses gave their evidence in a straight-forward fashion. I was impressed with their candour. Indeed, it was apparent that the issues dividing the parties did not really turn on questions of fact, about which there was substantial agreement amongst the witnesses. The real issues were questions of law, and turned primarily on two basic questions:

1. were the grievors (other than Mr. Nickerson, whose claim had been accepted) entitled on the facts to the shift and weekend premiums available to employees under article 27 of the collective agreement, and, if not,
2. was the employer somehow estopped from denying the claims because of its past practice of paying those premiums?

12 Given the above, I do not think it is necessary to reproduce or summarize the evidence of each of the eight witnesses, except where it may be necessary to resolve differences. It is in my opinion enough to say that I have based my findings of fact on that testimony as well as on the documents introduced as exhibits.

II. Summary of the evidence

13 In 2007, Messrs. O’Keefe, Porter, Chafe and Clarke were aquatic science technicians. Mr. Nickerson was a multidisciplinary hydrographer. They were employed in positions classified at the EG-3 or EG-5 levels by the Science Branch of the DFO, operating out of the White Hill office and laboratory in St John’s, Newfoundland. Their regular office hours were

1. for Mr. Nickerson, 08:30-16:30 (with a half-hour for lunch), Monday to Friday, and
2. for the other four grievors, 08:00-16:00 (with a half-hour for lunch), Monday to Friday.

14 In other words, all five worked a regular seven-and-a-half hour day (not including the half-hour for lunch). Their regular work started in the morning and ended in the afternoon. And their regular work days were Monday to Friday.

15 The regular duties of all five grievors can in general be said to have been the collection and analysis of data relevant to the marine environment, including its plant and animal life, its weather, its physical characteristics as well as the operation of the inshore and offshore fisheries. Data was collected during field trips, sometimes to beaches and shorelines, more often on board research vessels. The latter involved trips to sea ranging from one to three weeks. Some trips were on inshore vessels, which as a rule put out to sea for 12-hour days, docking or anchoring each evening at spots other than the home port. Others involved offshore vessels, which were able to accommodate the two crews necessary for 24/7 voyages. Upon their return to the office, the grievors would collate and analyze the data they had collected during their seagoing trips.

16 The grievors all agreed that these trips were part of their duties. They were required to go on them. They could not refuse to go without good reason, such as a serious illness.

17 The employer would in ordinary course give employees at least seven days notice of an upcoming trip. Notice was given by way of a document called a “Trip Program.” The Trip Program named the vessel, the dates of the voyage and the scientific staff assigned. It explained the purpose of the trip (for example, to record the incidence of bitter crab disease), the methods to be used to collect data and, relevant to these grievances, the “Work Schedule.”

18 The grievances of Messrs. Chafe, Clark, O’Keefe and Porter all involved research trips they took on the Shamook in the spring, summer and early fall of 2007. The trips were as follows:

1. O’Keefe: May 28 to June 14, 2007;
2. Porter: June 15-26, 2007 and June 27 to July 6, 2007;
3. Clark: September 17-25, 2007; and
4. Chafe: June 27-July 6, 2007 (Exhibit E-40, Tab 2 and Exhibit U-33).

19 The Work Schedules for those four grievors described the “regular” scheduled hours to be worked by the scientific staff (i.e. the grievors) as well as the “regular” days to be worked. In all cases the “regular” days to be worked were Monday to Friday. The Work Schedules also provided that, in the event overtime was required, it would be accrued during particular hours. So, for example, in the case of Mr. O’Keefe’s trip from May 28 to June 14, 2007, the Work Schedule (Exhibit E-40, Tab 2) was as follows:

Work Schedule: During regular weekdays (Monday to Friday) scheduled hours of work will be from 0600-1400 hrs. (half-hour for lunch). Should overtime be necessary, it will be accrued from 1400-1800 hrs. Should overtime be necessary on weekends, it will be accrued from 0600-1800 (half-hour for meals).

20 The Work Schedule in Mr. Porter’s case (Exhibit E-40, Tab 2) was as follows:

Work Schedule: The scheduled hours of work will be 0700-1500 (half-hour for dinner). Should overtime be required during the regular workweek, it will be accumulated from 15:00-19:00 hours. Should overtime be required on weekends, it will be accrued from 07:00-19:00 (half-hour for meals).

21 Mr. Clarke’s (Exhibit E-40, Tab 2) was as follows:

Work Schedule: During regular weekdays (Monday to Friday) the scheduled hours of work will be from 07:00-15:00 (half-hour for lunch). Should overtime be necessary it will be accumulated from 15:00-19:00 hours. Should overtime be necessary on weekends, it will be accrued from 07:00-19:00 (half-hour for lunch). On the day of departure and arrival, scientific staff will work their normally scheduled hours and, should overtime be necessary, may work up to an additional 4 hours.

22 Mr. Chafe had filled in for another employee (a Mr. Paddle). The Work Schedule for his Trip Program (Exhibit U-33) had the same wording as that for Mr. Porter.

23 Mr. Nickerson’s Work Schedule was different from those of the other four grievors. While his actual Trip Program was not put into evidence, the parties were agreed that his work schedule while on board a different vessel (the CCGS Matthew) from May 23 to June 13, 2007 was from 07:00-13:00 and then 14:30-22:00, Monday to Friday. In other words, and unlike the others, his scheduled hours of work were broken by a one-and-a-half-hour gap between 13:00 and 14:30 on weekdays; and his regular day ended after 18:00.

24 On their return from a trip, the members of the scientific staff would fill out an “Extra Duty Pay/Shift Work Report and Authorization” form (an “EDP”). Each of the four grievors (other than Mr. Nickerson) listed the following in their respective EDPs:

1. the start and end of their work days;
2. what day the work fell on;
3. the hours of overtime worked (whether on a regular work day or on a weekend); and
4. the “shift premium” claimed for each day (again, whether on a regular work day or on a weekend).

25 “Overtime” was defined in the collective agreement as, “in the case of a full-time employee, authorized work in excess of the employee’s scheduled hours of work:” article 2 (Interpretation and Definitions). The payment of overtime is governed by article. 28 (Overtime), and was paid at a rate of time-and-a-half or double time, depending on the circumstances. (There was no dispute that all the overtime claimed and payable to the grievors had been paid by the employer following the submission of their EDPs.)

26 The “shift premium” was a benefit available pursuant to article 27 (Shift and Weekend Premiums) of the collective agreement. The article is reproduced in its entirety here:

Article 27

Shift and Weekend Premiums

Excluded Provisions

This Article does not apply to employees on day work, covered by clauses 25.04 to 25.06, or clause 25.04 of Appendix “M.”

27.01 Shift Premium

An employee working on shifts will receive a shift premium of two dollars ($2.00) per hour for all hours worked, including overtime hours, between 4:00 p.m. and 8:00 a.m. The shift premium will not be paid for hours worked between 8:00 a.m. and 4:00 p.m.

27.02 Weekend Premium

(a) 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 and/or Sunday.

(b) Where Saturday and Sunday are not recognized as the weekend at the mission abroad, the Employer may substitute two (2) other contiguous days to conform to local practice.

27 In short, where article 27 applied an employee would receive an additional $2.00 premium

(a) for every work hour, whether it had already been compensated as regular or overtime work, between the hours of 4:00 p.m. and 8:00 a.m. during Monday to Friday, and

(b) for every work hour, regardless of how it was already compensated, during a weekend, regardless of when during the day it was worked.

28 The uncontested evidence of the grievors was that they had claimed the shift and weekend premium on their EDPs at the end of every trip for years, since at least 2000 if not before. For years, these premiums had been paid. But when they put in their EDPs for the trips that were the subject of these grievances their claims for the premium were denied.

29 It was also clear on the uncontested evidence of the grievors that the employer’s denial of the claims in question represented a change in the employer’s practice regarding such claims. Indeed, Mr. MacCallum admitted that had the EDPs in question been submitted before the spring of 2007, the grievors’ claims for shift and weekend premiums would have been granted.

30 Ms. Harding and Ms. Rice  explained how the change in practice came about.

31 Ms. Harding’s duties included reviewing the EDPs when they came in to ensure that the claims were payable under the relevant provisions of the collective agreement. Once she reviewed the EDPs, and struck out (or added) claims on the basis of whether they were payable under the collective agreement, she would forward them to the Division Manager for his or her signature. From there the EDPs went to the compensation office, which conducted the same review (as a backup) and then paid the employees.

32 Ms. Harding testified that until early 2007, she and the local managers had always considered scientific staff (such as the grievors) performing research work on vessels to be “shift workers” and had accordingly allowed their claims for shift and weekend premiums under article 27. At about that time the issue had come before an adjudicator on a grievance that had been heard on an expedited basis. The adjudicator had ruled that the grievor in that case was entitled to the shift premium pursuant to article 27. However, “headquarters” (that is, the Ottawa central office of DFO) was of the opinion that the decision did not apply to employees in the position of the grievors, since the circumstances of their work were different from those of the grievor in the expedited adjudication. In particular, the position of headquarters was that an employee whose regular hours of work fell between 06:00 and 18:00, regardless of whether he or she was in the office or on a ship, was a “day worker” and not a “shift worker”, and so was not entitled to the shift or weekend premium under article 27.

33 As a result of this position, Ms. Harding began to question premium claims as they came in. Because she was not entirely clear as to the proper approach, especially in light of her office’s historic practice, she sought the advice of Ms. Rice. They discussed the various situations, and ended up seeking clarification from head office. Sample Trip Programs (with their Work Schedules) were submitted to Irene Arkorful in Ottawa. Ms. Rice’s understanding was that Ms. Arkorful sought clarification from senior administrators at the Treasury Board. On May 30, 2007, Ms. Arkorful emailed Ms. Rice to the effect that employees in the position of the grievors were “day workers under their collective agreement in that their normal scheduled hours are between 6 a.m. and 6 p.m.” She went on to say that they “were pre-authorized for specific overtime hours for which they were appropriately compensated.” As a result they were “not shift workers entitled to the shift or weekend premium.” “Premiums,” she said, “do not apply to day workers” (Exhibit E-41).

34 Ms. Rice forwarded Ms. Arkorful’s email to Ms. Harding on May 30^th, (Exhibit E-41). Ms. Harding’s uncontested evidence was that she then made the employer’s position, as communicated to her by Ms. Rice, known to Mr. Inkpen, the bargaining agent’s representative, about the same time. (Mr. Inkpen was at the hearing but did not give evidence.) On June 13^th, Ms. Harding sought further clarification from Ms. Rice about the situations in which the shift and weekend premium might be paid (Exhibit E-41). The upshot of it was that there was no change in the employer’s position. If the employee’s regular hours of work fell between 06:00 and 18:00 he or she was not a shift worker and so was not entitled to the shift and weekend premiums under article 27. As Ms. Arkorful stated in an email dated July 5, 2007, to Ms. Rice and Ms. Harding, employees whose work “falls primarily between the hours of 6:00 and 18:00 are day workers. Shift premiums do not apply to day workers unless they are filling in for a shift worker” (Exhibit E-42). The fact that a day worker might work overtime beyond his or her normal work period during a day did not change things. “Day workers who work extended hours over the 37 1⁄2 hour week are compensated by the articles [of the collective agreement] governing overtime” (Exhibit E-42).

35 As a result of those instructions, Ms. Harding determined that the claims of the four grievors and that of Mr. Nickerson did not fall within article 27. She struck out their claims on their EDPs for the shift and weekend premiums. Her decision in this regard was affirmed by the Division Manager, resulting in the denial by the employer of the claims of the five grievors. The denials were then in ordinary course made the subject of the grievances that concern us here.

36 Mr. Nickerson testified that he objected when his claim was rejected. He spoke to his manager, who showed him a document titled “Procedures for Science Employees while on Science Research Cruises–Hours of Work and Compensation.” The document stated that while on research cruises “employees who are normally day workers are deemed to be shift workers. As such, while at sea, they are entitled to all applicable overtime, shift and weekend premiums.” Mr. Nickerson then went to the division secretary who gave him a copy of the document. The document was entered into evidence as Exhibit U-9, over the objection of counsel for the employer. She submitted that the document was undated and unsigned, making it unclear as to who prepared it and why. I ruled that those objections went to weight, not to admissibility. Mr. Nickerson also obtained the EDP and pay stub (Exhibit U-4) of a co-worker in the Canadian Hydrographic Service who had been on the CCGS Matthew at the same time as him. The co-worker had claimed, and had been provided, the shift and weekend premium. Counsel for the employer objected to the introduction of that document as well, on the grounds that the co-worker was not available for purposes of cross-examination. I allowed it into evidence, again on the grounds that her objection went to weight.

37 Before continuing it is necessary to say a word about Mr. Nickerson’s grievance. Mr. Nickerson’s claim for the shift and weekend premium was originally treated by the employer as being identical to that of the other four, and was denied on that basis. The employer subsequently realized that Mr. Nickerson’s regular scheduled hours had not fallen between the hours of 06:00 and 18:00. Rather, they had fallen between the hours of 07:00 and 13:00 and then between 14:30 and 22:00. In other words, his regular hours ended after 18:00. The employer accordingly concluded that Mr. Nickerson was for that reason not a “day worker” and so was in fact entitled to the shift and weekend premium under article 27. Hence, its later decision to allow the claim.

38 With that factual background in place, I will now discuss the submissions of the parties.

III. Summary of the arguments

A. For the grievors

39 The grievors’ representative made three principle submissions on behalf of the grievors.

40 First, he submitted that the issue turned on the interpretation of the collective agreement. That interpretation had to take the “historical context” into account. Here the historical context was that the employer had always paid the claim for premiums. The representative placed particular emphasis on Exhibit U-9, saying that it made clear that the employer had hitherto interpreted article 27 as entitling employees in the grievors’ position to such premiums. That being the case the parties must have intended article 27 to apply to employees in the position of the four grievors. Since there was evidence (albeit objected to by counsel for the employer) that other employees in the Atlantic region were being paid the shift and weekend premiums it would be “unfair” to treat these grievors differently.

41 Second, there was no definition of “shift worker” in the collective agreement, nor any definition of “shift.” The grievors’ representative submitted that an employee who was expected and required to work overtime on the ships could be considered to be working “shifts” within the meaning of article 27. They were “captive” on the ships when not working. When the ships docked at night the employees were not permitted to be more than 30 minutes away from the ship. Since they were required and expected to work up to 12 hours a day, including weekends, on an assignment that took them away from their “normal place of work” (that is, their land-based offices or labs) they ought to be considered to be working “shifts” within the meaning of article 27. Such work was not their “normal” work because it did not mirror their “normal” schedules at the office. That being the case, the word “shift” in article 27 ought to be interpreted as meaning “the time that an employee is expected and required to be at and remain at work” at other than their usual place of employment on land.

42 Finally, the grievors’ representative relied on the doctrine of estoppel. Even if article 27 could not be interpreted to apply to the grievors, the employer had conducted itself in the past as if it did. It would not be fair or equitable to permit it to change its position at this point.

43 The grievors’ representative also made a number of submissions regarding the claim for interest. However, I have decided to deal with that issue in my decision concerning the Nickerson grievance. For that reason I will discuss of the submissions on behalf of the grievors and the employer later in this decision.

B. For the employer

44 Counsel for the employer made a number of submissions.

45 First, article 27 did not apply to the grievors because it expressly excluded employees who were covered by clauses 25.04 to 25.06 of the collective agreement. Article 25 deals with “Hours of Work.” Clause 25.04(a) provides as follows:

Except as provided in clause 25.09, the normal work week shall be thirty-seven and one-half (37 1⁄2) hours exclusive of lunch periods, comprising five (5) days of seven and one-half (7 1⁄2) hours each, Monday to Friday. The work day shall be scheduled to fall within a nine (9)-hour period between the hours of 6:00 a.m. and 6:00 p.m., unless otherwise agreed in consultation between the Alliance and the Employer at the appropriate level.

46 (Clause 25.09 deals with employees who work “on a rotating or irregular basis” and has no application to the facts of this case.)

47 Counsel for the employer submitted that the four grievors had a “normal work week” that had been scheduled within the time frames provided for by clause 25.04(a). In each case their regularly scheduled hours fell within the hours of 06:00 and 18:00; they encompassed seven-and-a-half hours; and they occurred Monday to Friday. Hence they were employees “covered by clause 25.04" and by that token expressly excluded from article 27. The fact that their hours on board ship might start or end slightly differently from those at the office did not alter this conclusion, because the scheduled hours on board ship still fit within the requirements of clause 25.04(a): they occurred between the hours of 06:00 and 18:00; they occurred Monday to Friday; and they comprised seven-and-a-half hours each day. This conclusion was not altered by the fact that the employees were required to work overtime. The employer was entitled to require overtime of its employees, provided that it paid for it, and it had. The grievors were accordingly employees “covered by clauses 25.04 to 25.06" and hence expressly excluded from article 27.

48 Counsel for the employer then submitted that the past practice of the local (that is, Newfoundland) managers could not give rise to an estoppel. The managers were not signatories to the collective agreement. Their actions could not bind the Treasury Board. She submitted that the bargaining agent had not established on a balance of probabilities that persons authorized to represent the Treasury Board knew of, agreed with, acquiesced in or condoned the local practice. Moreover, estoppel requires detrimental reliance on the part of the person relying on the estoppel and there was no such detrimental reliance here. The employees did not have the right to refuse to go to sea if the premium was not available, and so the fact that they thought it was available on sea-going trips was irrelevant. Finally, even if an estoppel had been created it could be revoked on notice, and here the bargaining knew since late May or early June 2007 that the employer was refusing to pay the premium. The only grievor who had arguably put to sea before this date was Mr. O’Keefe; all the others had gone out after the bargaining agent knew of the employer’s position.

C. The grievors’ rebuttal

49 In reply, counsel for the grievors submitted that the employer could not argue on the one hand that the Treasury Board (as opposed to local managers) was the party that had to be estopped, and then on the other hand say that notice of a change in position could be given by local managers. Since no notice had come from the Treasury Board to the grievors in late May or early June 2007, it could not be said that effective notice had been given.

IV. Reasons

50 I start with the trite but true observation that my authority as an adjudicator is limited to and by the express terms and conditions of the collective agreement. I can only interpret and apply the collective agreement. I cannot modify terms or conditions that are clear. Nor can I make new ones. The fact that a particular provision may seem unfair is not a reason for me to ignore it if the provision is otherwise clear: Public Service Staff Relations Act, S.C. 2003, c. 22 (the “PSLRA”), s. 229; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., 2002 NBCA 30 at para 10 and 11.

51 Second, I am obligated to determine the true intent of the parties when they entered into the collective agreement. To do that I must use the ordinary meaning of the words used by the parties. I must also take into account the rest of the collective agreement, for it is the overall agreement that forms the context in which the words used are to be interpreted: Irving Pulp & Paper, para 10 and 11; and Cooper and Wamboldt v. Canada Revenue Agency, 2009 PSLRB 160 at para 32 and 34.

52 I begin with article 27 of the collective agreement. The grievors and the bargaining agent submitted that this article entitles them to the shift and weekend premiums claimed. For convenience I reproduce article 27 here (Exhibit U-1):

Article 27

Shift and Weekend Premiums

Excluded Provisions

This Article does not apply to employees on day work, covered by clauses 25.04 to 25.06, or clause 25.04 of Appendix “M.”

27.01 Shift Premium

An employee working on shifts will receive a shift premium of two dollars ($2.00) per hour for all hours worked, including overtime hours, between 4:00 p.m. and 8:00 a.m. The shift premium will not be paid for hours worked between 8:00 a.m. and 4:00 p.m.

27.02 Weekend Premium

(a) 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 and/or Sunday.

(b) Where Saturday and Sunday are not recognized as the weekend at the mission abroad, the Employer may substitute two (2) other contiguous days to conform to local practice (exhibit U-1).

53 The wording of article 27 gives rise to two issues, and a shifting burden of proof.

54 First, article 27 is clearly limited in scope. The shift and weekend premiums are not available to all employees for any work performed by them. Rather, they are available only to employees “working on shifts.” Hence the bargaining agent must establish that the grievors (who were clearly employees) were “working on shifts” at the relevant time.

55 Second, there is also an absolute exclusion, or limitation, in that article 27 by its express wording does not apply to “employees on day work, covered by clauses 25.04 to 25.06, or clause 25.04 of Appendix ‘M.’” Since it is the employer who maintains that the grievors were employees “covered by clauses 25.04 to 25.06,” the burden is on it to establish that that exclusion applies.

56 Since the exclusion comes first in article 27 I will deal with it, and with the question of whether the employer has established that the exclusion applies, first.

57 In making her submissions counsel for the employer relied most heavily on clause 25.04(a). For convenience I repeat it here:

Except as provided for in clause 25.09, the normal work week shall be thirty-seven and one-half (37 1⁄2) hours exclusive of lunch periods, comprising five (5) days of seven and one-half (7 1⁄2) hours each, Monday to Friday. The work day shall be scheduled to fall within a nine (9)-hour period between the hours of 6:00 a.m. and 6:00 p.m., unless otherwise agreed in consultation between the Alliance and the Employer at the appropriate level.

58 (As noted above, clause 25.09 is not applicable to the facts of this case.)

59 At first blush the four grievors appear to be within clause 25.04(a). All of them regularly worked Monday to Friday for a total of 37 1⁄2 hours. All them had workdays that fell within a nine-hour period between the hours of 06:00 and 18:00. The fact that some of their normal duties were conducted on-board the ship Shamook does not alter that conclusion. Their work descriptions made it clear that their duties included work “performed in an office, laboratory or field environment and may require travel to remote sites using various modes of transportation.” The work descriptions also included an express “requirement to work in environments such as research/commercial vessels [and] small boats ....:” (Exhibit E-40, Tab 1, work descriptions for positions classified EG-03 and EG-05). All the grievors admitted in cross examination that working on-board ships was part of their regular, defined work duties. They could not refuse to go without good reason, such as a documented illness. And before going on-board the grievors were provided with Work Schedules that, as on land, fell within the confines of clause 25.04(a): their regular hours fell within a nine-hour period between 06:00 and 18:00, Monday to Friday.

60 I am accordingly of the opinion that the four grievors are excluded from article 27 by virtue of being “covered by” clause 25.04(a). Given that conclusion it is not strictly speaking necessary for me to consider the second hurdle the grievors face, that of establishing that at the relevant time they were employees “working on shifts.” However, given the submissions of counsel I think it appropriate that the issue be addressed.

61 The question here is what article 27 of the collective agreement means by “working on shifts.” Neither “shift” nor “shift work” nor “working on shifts” are defined terms in the collective agreement. I must consider then whether there is an ordinary, generally accepted understanding or definition of what is meant by “shift work” (that is, “working on shifts”). In this regard I note that the Canadian Oxford Dictionary (Toronto, 1998) defines “shift work” as “work conducted in often variable periods independent of a standard work day, usually at night (tired after a month of shift work).” The website for the Sloan Work and Family Research Network of Boston College provides the following definitions of “shift work”:

Shift work refers to a job schedule in which employees work hours other than the standard hours of 8 a.m. to 5 p.m. or a schedule other than the standard workweek - Monday through Friday in the United States (Grosswald, 2004, p. 414).

In general, the term ‘shift work’ is quite vague and includes any organization of working hours that differ from the traditional diurnal work period; sometimes it is a (sic) synonymous of irregular or odd working hours (Costa, 2003, p. 264).

1⁄4most studies on shiftwork classify shift workers as anyone working outside regular daytime hours (i.e. between approximately 7 a.m. and 6 p.m., Monday through Friday). Under these definitions, shift workers include all people working evening shift, night shift, rotating shifts, split shifts, or irregular or on-call schedules both during the week and on weekends (Institute for Work & Health, n.d.).

Shiftwork is defined as work outside day hours, Monday to Friday. It includes weekend work, and jobs which start substantially before 7 am and finish at 7 p.m. or later (Wallace, n.d.).

The standard workday unfolds during an 8-5 timeframe. We consider shift workers to be individuals who work nonstandard hours.” (Root, 2004).

62 Similarly the website dictionary.com provides the following definition of “shift:”

a person's scheduled period of work, esp. the portion of the day scheduled as a day's work when a shop, service, office, or industry operates continuously during both the day and night: She prefers the morning shift.

63 In my opinion all of these definitions describe a situation where normal operations during a 24-hour cycle are broken into two or three work periods, each period representing a full “day’s” work for an employee. A common example of such work would be found in hospitals, where nursing staff must be present 24-hours a day. Since no one can routinely work 24 hours per day, the 24-hour cycle is split into two 12-hour or three 8-hour “shifts.” Of course, not all work places operate on 24-hour cycles. Some operate on shorter cycles. But whatever the cycle, it is long enough that it cannot ordinarily and routinely be filled by one employee; it must be split into “shifts,” with each shift being filled by a (normally) different employee. Hence to work “on shift” means that there would be at least two, if not three, work periods during the 24-hour cycle that would be filled by two (or three, as the case may be) employees.

64 What this means is that article 27 and the phrase “working on shift” apply to situations where there are at least two regular “shifts” in a given 24-hour cycle. Support for this conclusion may be found in the fact that clause 27.01 states that the shift premium is not paid for hours worked between 08:00 and 16:00 (which is the “normal” work day), but will be paid for all hours worked between 16:00 and 08:00. In other words, clause 27.01 contemplates the existence of at least two periods of work during a 24-hour cycle.

65 Similarly, the fact that both clauses 27.01 and 27.02 state that a premium is added to overtime means, in my view, that “working on shift” is different from a situation in which an employee works overtime beyond his or her normal work day. In other words, a “day worker” who works in an office which normally has only one work period (the normal work day) does not become a “shift worker” merely because he or she performs some overtime.

66 I am satisfied then that even if the exclusion did not apply, the four grievors in this case would not have been able to satisfy me on the evidence that they were “working on shifts” at the relevant time.

67 However, despite what appears to be the clear conclusion that employees in the grievors’ positions were not entitled to shift and weekend premiums under article 27, the practice of the employer had been to pay the premium for employees when they spent time on-board vessels. The grievors all testified that for years prior to May 2007, they had submitted identical claims and had been paid the premium without any objection on the part of the employer. Ms. Harding admitted that prior to May 2007 claims similar to those at issue were routinely paid. And Mr. MacCallum admitted that had the grievors submitted their claims prior to May 2007, they would have been paid.

68 The representative for the bargaining agent relied on this past practice to make two arguments.

69 First, he submitted that I could use it as an aid to interpreting article 27. If the parties conducted themselves as if article 27 applied then surely, he argued, that is what article 27 must mean.

70 Second, he submitted that even if article 27 does mean what it appears to mean on its face, the employer ought to be estopped from changing its position. It cannot, he suggested, act as if article 27 entitled employees in the position of the grievors to shift and weekend premiums and then change tack and say that it does not.

71 Dealing with the first submission, I am prepared to accept as a general principle that when a contractual clause is ambiguous, or where it employs technical terminology whose meaning is not immediately clear, I may look to the practice of the parties as an aid when interpreting its true meaning. Assuming for the sake of argument that article 27 is ambiguous (and I am not satisfied that it is), it must at the very least be clear that the parties are aware of the practice in question, and that the practice has been uniformly applied. It is obviously easier to satisfy that condition where there is only one work site, a “hands-on” employer and a relatively small work force. But that is not the case here. I believe I am safe in stating that the collective agreement covers tens of thousands of employees performing a multitude of tasks across Canada in a number of different (and widely-spaced) work sites. It was the bargaining agent’s burden to establish on a balance of probabilities that the practice in question was widespread and was known to the Treasury Board. The evidence it adduced did not go beyond certain employees in the Newfoundland office. The fact then that local managers in Newfoundland have adopted a particular practice with respect to article 27 in the collective agreement cannot be used as an interpretive aid, at least where, as here, there was no evidence that the practice was wide-spread or that the Treasury Board itself was aware of it prior to 2007: see, for example, Versagold Group Limited Partnership (Valley Centre) v. Retail Wholesale Union, Local 580 (2010), 102 C.L.A.S. 293 at para 55 to 57; Fleming, a division of United Dominion Ltd and CAW, Local 1090 (2000) 63 C.L.A.S. 135 at para 7and 8.

72 I note that the document entered into evidence as Exhibit U-9 (see para. 36 above) does not advance the grievors’ case. The statement in the document that “day workers” on research cruises were “deemed to be shift workers” is certainly consistent with the past practice of the employer’s local managers in Newfoundland. But it does not add anything to the testimony of the grievors or, for that matter, the employer’s own admission (in the testimony of Ms. Harding and Mr. MacCallum) that such claims had in the past been paid in Newfoundland. It is not signed, so cannot be taken as a binding commitment on the part of the employer itself to always interpret and apply the collective agreement in the manner specified. It is not dated, and the evidence of Mr. Nickerson supports at best no more than a conclusion that it reflected local management’s practice as of the date of his voyage.

73 Moreover, the evidence concerning the co-worker, as reflected in his EDP and pay stub (see para. 36 above of this decision), in fact appears to support the employer’s explanation of why it eventually admitted Mr. Nickerson’s claim but not those of the other grievors. The co-worker’s work schedule, unlike those of the four grievors, but like that of Mr. Nickerson, did not end between the hours of 06:00 and 18:00. The co-worker’s weekdays began at 15:00 and ended at 20:00. His weekends began at 07:00 and ended at 20:00. In other words, the co-worker’s scheduled work hours did not fall within the parameters defined by clause 25.04(a). That being the case, it is not surprising that the employer accepted the co-worker’s claim for the shift and weekend premium in the first place, or that once the employer understood Mr. Nickerson’s schedule did the same for him.

74 I turn then to the second argument, that the employer is estopped from altering the practice that it had followed up until May or June 2007 of paying the premium to employees in the positions of the four grievors.

75 Estoppel requires at the very least two facts:

1. one party to a contract makes a representation to the other party that it will not insist upon a particular right available to it under that contract, and
2. the other party changes its position in reliance upon that representation: Brown and Beatty, Canadian Labour Arbitration (Online Edition, Canadian Labour Law Library), para 2:2200, 2:2211; Re Smoky River Coal Ltd and United Steelworkers of America, Local 7621 (1985) 18 D.L.R. (4^th) 742 (Alta CA) at p. 746.

76 Estoppel can only affect the parties to a contract. In this case the parties to the contract are the Treasury Board and the bargaining agent. The first difficulty with the argument made on behalf of the grievors is that there was no evidence that the Treasury Board or the employer (as opposed to its local managers) said or did anything to the effect that it would interpret article 27 of the collective agreement in the manner contended for by the grievors. The fact that local managers might for whatever reason (whether mistaken or otherwise) have applied or interpreted article 27 in a certain way does not amount to a representation by the Treasury Board: for example, Versagold at para 55 to 57; Fleming at para 7 and 8. An employer is not in ordinary course bound by a practice it subsequently decides was based on a mistaken understanding of its rights under a collective agreement: see, for example, Legare v. Canada (Treasury Board) [1987] F.C.J. No. 304 (CA) (QL) at p. 5 of 6.

77 Even were I to accept that the practice of the managers in Newfoundland amounted to a representation by the Treasury Board, there was no evidence of any detrimental reliance on the part of the bargaining agent or, in particular, the grievors. The grievors’ decision to embark on the Shamook was not made in reliance upon the past practice regarding shift and overtime premiums. They had to go. It was part of their job. They could not refuse to go if the premium was not paid. But if they had to go there was no detrimental reliance, and if there was no detrimental reliance there was no estoppel: see for example, Jeffries v. Treasury Board (Canadian Food Inspection Agency) 2003 PSSRB 55 at para. 40; Dubé v Canada (Attorney General) 2006 FC 796 at para 56.

78 I am accordingly of the opinion that on the facts of this case the grievors O’Keefe, Chafe, Clark and Porter:

1. were at the relevant time performing a normal work week within the meaning of clause 25.04(a) of the collective agreement, and accordingly
2. were expressly excluded from the provisions of article 27, and accordingly
3. were not entitled to the shift and weekend premiums available under article 27 to employees “working on shifts.”

79 For that reason I will make an order dismissing the four grievances of Messrs. Chafe, O’Keefe, Porter and Clark on the merits.

80 As already noted, the employer conceded the grievance of Mr. Nickerson before the commencement of the hearing. It acknowledged that overtime and weekend premiums in the gross total amount of $288.00 were due to him. The bargaining agent agreed that $288.00 was owing, but submitted that it was entitled to proceed with the grievance because Mr. Nickerson had not been “made whole.” He had lost the use of the $288.00 for upwards of three years. The bargaining agent submitted that I ought to award interest on the outstanding amount, on the grounds that the loss of use of the $288.00 constituted an additional loss to Mr. Nickerson, and that if interest were not awarded he would not be “made whole.” It relied in particular on the decision in Nantel v. Treasury Board [2007] PSLRB No. 66, in which a claim for interest was allowed.

81 In making its submissions, the bargaining agent also relied upon a number of decisions from private industry as well as different statutory regimes, including Henuset Pipeline Construction Ltd v. IUOE, Local 955 [1995] A.G.A.A. No. 25 (QL), Union of Canadian Correctional Officers – Syndicat des agents correctionnels – CSN v. Treasury Board 2007 PSLRB 120, Canada Post Corp v. CUPW [1992] C.L.A.D. No. 55 (QL) and Canada Post Corporation v CUPW [1985] C.L.A.D. No. 75 (QL).

82 Counsel for the employer submitted that I had no jurisdiction or power to award interest in the circumstances of this case. She submitted that as a rule the Crown did not have to pay interest in the absence of an express statutory requirement to do so. While there was a statutory provision permitting the award of interest in some situations, it was extremely limited in scope. Indeed, it was for that reason that the decision that counsel for the bargaining agent relied upon, Nantel, had in fact been overruled and reversed by the Federal Court (Trial Division) and by the Federal Court of Appeal: see Canada (Attorney General) v. Nantel 2008 FCA 351. That being the case the private arbitration cases relied upon by counsel for the bargaining agent, such as Henuset, or the decisions dealing with different statutes, such as the Canada Post cases, were of no application.

83 Litigating parties sometimes assume that interest is payable on a debt or on damages as a matter of right. It is not. Historically interest on debts or damages was payable only where the parties had previously agreed to pay interest. In the absence of such an agreement no interest was payable unless a statute or law said otherwise. Over the centuries the general rule has been eroded by statutes and rules of court. Such statutes and rules have provided most decision-makers with the power and the discretion to award interest even where the parties have not previously agreed to pay interest.

84 It remains the case however that the power to award interest must be grounded in either an express agreement between the parties, or in a statute. This requirement applies in the case of the Crown, that is, the employer, as in all other cases: see para. 7 Nantel 2008 FCA 351.

85 The collective agreement in this case does not provide for the payment of interest. Since there is no express agreement to pay interest the power of an adjudicator to award interest, if such a power exists, must be found in a statute.

86 The powers of an adjudicator are spelled out in subsection 226(1) of the PSLRA. Paragraph 226(1)(i) of the PSLRA provides that an adjudicator “may, in relation to any matter referred to adjudication ... award interest in the case of grievances involving termination, demotion, suspension or financial penalty at a rate and for a period that the adjudicator considers appropriate.”

87 The representative for the bargaining agent submitted that the use of the word “may” rather than “shall” meant that I had the discretion to do anything else that I considered appropriate. With respect, I do not agree. The law is clear that an adjudicator has no power to award interest unless that power is expressly granted to him or her by the parties by way of a provision in the collective agreement, or unless that power can be found in a statute. That being the case, I cannot extract a general discretionary power to award interest out of the use of the word “may.”

88 The only express statement regarding a power to award interest is found in paragraph 226(1)(i) of the PSLRA. As already noted, it gives an adjudicator power to award interest “in the case of grievances involving termination, demotion, suspension or financial penalty.” None of the five grievances, including Mr. Nickerson’s, involves a “termination, demotion or suspension.” The only thing left is the phrase “financial penalty.” Did the employer’s failure to pay Mr. Nickerson his shift and weekend premiums constitute a “financial penalty”?

89 The representative for the bargaining agent submitted that it did. He said that Mr. Nickerson was out of pocket $288.00 for almost three years. He lost the chance to use the money then, or to invest it. As a result the money was worth less now than it was three years ago. That financial loss was a form of penalty, and hence was a “financial penalty” within the meaning of paragraph 226(1)(i).

90 While I agree that Mr. Nickerson’s loss of the use of the money owing to him for three years constitutes a “financial loss” I am not persuaded that this is the same thing as a “financial penalty.”

91 First, I am required to interpret the phrase “financial penalty” in the context in which it is found. The context here are the words “termination, demotion and suspension.” All these words carry with them a sense of punishment for some form of culpability or personal failing on the part of the employee. That being the case the term “financial penalty” must mean something other than a simple “loss.” It must have some disciplinary aspect attached to it, such as a fine, imposed on an employee by the employer for some failing or wrongdoing on his or her part. But on the facts of this case the employer’s initial failure to pay the premium to Mr. Nickerson was not the result of any disciplinary action. It was not a penalty. It was not based on any bad faith. In the absence of such evidence I have difficulty accepting that the employer’s failure to pay the premium by reason of its mistaken understanding of his work schedule constituted a “financial penalty” within the meaning of paragraph 226(1)(i) of the PSLRA.

92 My second difficulty with the representative’s submission stems from the breadth of the term “financial loss.” In my view any failure on the part of the employer to pay benefits or compensation under the collective agreement could be said to constitute a “financial loss.” If I were to interpret “financial penalty” to mean “financial loss” I would in effect be ruling that an adjudicator could award interest in any case involving a dispute over compensation. But, with respect, that is not how paragraph 226(1)(i) reads. The words chosen by Parliament are clearly restrictive in their scope. Given that intent I cannot interpret the restrictive phrase “financial penalty” as meaning the same as the more expansive phrase “financial loss.”

93 I am accordingly of the opinion that:

1. an adjudicator has the power to award interest only in a case involving a “termination, demotion, suspension or financial penalty,” unless the parties by agreement have extended that power, and here there was no such agreement;
2. there was no evidence presented by the bargaining agent to suggest that the employer’s failure to pay Mr. Nickerson the shift and weekend premiums flowed from any desire to punish or discipline Mr. Nickerson; and accordingly,
3. the employer’s failure to pay the premiums in question has not been shown to be a “financial penalty” within the meaning of paragraph 226(1)(i).

94 Accordingly, what remains of Mr. Nickerson’s grievance must be dismissed.

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

V. Order

96 The Chafe, Clark, O’Keefe and Porter grievances, bearing respectively PSLRB File Nos. 566-02-2081, 566-02-2082, 566-02-2084 and 566-02-2085 are dismissed.

97 That part of the Nickerson grievance, bearing PSLRB File No. 566-02-2083, that was not conceded by the employer (being the claim for interest) is dismissed.

October 29, 2010.

W. Augustus Richardson,
adjudicator