FPSLREB Decisions

I. Policy grievance referred to adjudication

1 On December 18, 2006, the Public Service Alliance of Canada ("the bargaining agent") referred to adjudication a policy grievance filed pursuant to section 220 of the Public Service Labour Relations Act. The bargaining agent alleged that the Parks Canada Agency ("the employer") violated Appendix "E" of the collective agreement in force at the time of the grievance. Specifically, the bargaining agent alleged that the employer's interpretation and application of articles 1, 2, 4, 7 and 9 and additional notes 1, 2 and 3 of Appendix "E", "Special Conditions Applicable to Canal Operating Employees", are contrary to the terms of the collective agreement.

II. Summary of the evidence

2 After a discussion with the parties, it was agreed at a hearing held on September 11, 2012 that the issues left to be decided were the following:

A. How compensation in accordance with Appendix "E" of the collective agreement is to be calculated when canal workers work on a designated paid holiday.

B. Whether Appendix "E" employees are entitled to shift premiums during the non-navigation season.

3 At the September 11, 2012 hearing, both parties agreed to proceed by written submissions.

4 The parties provided me with two agreed statements of facts.

5 The applicable collective agreement is between the employer and the bargaining agent and has an expiry date of August 4, 2007 ("the collective agreement").

III. Summary of the arguments

A. How Appendix "E" employees' compensation is to be calculated when they work on a designated paid holiday

1. For the bargaining agent

6 In his submissions, the representative for the bargaining agent stated that canal operating employees covered by Appendix "E" of the collective agreement are covered by this grievance.

7 The representative for the bargaining agent argued that, on October 15, 2006, the employer issued an annotated Appendix "E" of the collective agreement in which it changed its long-standing practice of calculating compensation for canal workers covered by Appendix "E" who worked on a designated paid holiday (see the agreed statements of facts).

8 The representative for the bargaining agent argued that prior to October 15, 2006, canal employees covered by Appendix "E" of the collective agreement who worked on a designated paid holiday would be compensated at straight time for all hours worked on that designated paid holiday. In addition, employees would be paid at time and one-half for the first eight hours and at double time for any overtime worked beyond the eight hours.

9 The representative for the bargaining agent indicated that, on October 15, 2006, with the introduction of the annotated version of Appendix "E" of the collective agreement, the employer changed its method of compensation by deciding to pay only eight hours at straight time, regardless of the number of hours effectively worked on that designated paid holiday. The matter of paying time and one-half or double time is not at issue.

10 The representative for the bargaining agent referred me to clause 27.05(a) of the collective agreement, which reads as follows:

a) When an employee works on a holiday, he or she shall be paid time and one half (1 ½) for all hours worked, up to the daily hours specified in article 22, and double(2) time thereafter, in addition to the pay that the employee would have been granted had he or she not worked on the holiday.

11 For the representative of the bargaining agent, the last part of clause 27.05(a) of the collective agreement which reads, "… in addition to the pay that the employee would have been granted had he or she not worked on the holiday," clearly refers to the hours actually worked and not to the income averaging provision of clause 2.2 of Appendix "E", which the employer relied upon to justify its position to cap the hours paid at eight.

12 The representative for the bargaining agent argued that clause 27.05(a) of the collective agreement should be interpreted while keeping in mind the reality of the work of the employees in question. During the navigation season, the employees work regular hours and often work far more than the 80-hour average on which the employer also relied to justify its position (see clause 2.2 of Appendix "E").

13 For the representative of the bargaining agent, the method of calculating compensation for employees who work on a designated paid holiday that was employed before October 15, 2006, whereby the employer compensated them for all hours effectively worked on a designated paid holiday, was the correct method. It was also consistent with the application of the rest of the collective agreement, which essentially states that an employee's base pay is calculated based on his or her daily hours of work at straight time on designated paid holidays. For the representative of the bargaining agent, employees should be compensated for all hours worked, including on designated paid holidays.

14 As for Guérette, Gérin-Lajoie and Malo v. Parks Canada Agency, 2004 PSSRB 142, cited by the employer,therepresentative for the bargaining agent submitted that it is of no assistance to this case since, essentially, it does not address whether an employee who does not work on a holiday would be compensated for eight hours at the base rate or, as maintained by the bargaining agent, for all the hours he or she was normally scheduled to work.

15 Alternatively, the representative for the bargaining agent argued that, if I agreed with the employer's method of calculating how an employee who worked on a designated paid holiday was to be paid, I should find that the employer was estopped from changing how it calculated compensation for work performed on a designated paid holiday. On the issue of estoppel, the representative for the bargaining agent argued that it is not contested that there has been a long-standing practice of compensating work on designated paid holidays in which, in addition to paying eight hours at time and one-half and any overtime premium, the employer always compensated employees for the effective hours of work performed. In support of his position that the employer was estopped from changing the method of calculation, the representative for the bargaining agent referred me to Brown and Beatty, Canadian Labour Arbitration, 4th edition, at paragraph 2:2211, United Electrical, Radio and Machine Workers, Local 537 v. Canadian General Electric Co. Ltd. (1971), 22 L.A.C. 149, and Waste Management of Canada v. Teamsters, Local 419 (2009), L.A.C. (4th) 278.

2. For the employer

16 Counsel for the employer argued that "hours normally worked" by an employee means the employee's daily hours of work, which means that, in this case, the canal employees should be compensated at straight time for their daily hours of work. For canal workers, that is eight hours.

17 Counsel for the employer explained that clause 22.01 of the collective agreement defines normal hours of work per week for canal workers by referring to the "Hours of Work Code" in Appendix "B". That appendix specifies which classification groups fall into either a 37.5-hour or 40-hour workweek. Counsel for the employer argued that, under Appendix "B", the normal workweek for the General Labour and Trades Group (GL Group) is 40 hours. Since canal workers are part of the GL Group, they are deemed to work 40 hours per week, 8 hours per day.

18 Counsel for the employer also maintained that clause 2.2 of Appendix "E" of the collective agreement never excluded the application of Appendix "B", including the "Hours of Work Code", to canal employees that are part of the GL Group, for which the normal is 40 hours or 8 hours per day. Therefore, that, in counsel for the employer's view, confirms the employer's position that canal workers normally work 40 hours per week, 8 hours per day.

19 Counsel for the employer maintained that the final part of clause 27.05(a) of the collective agreement should be interpreted as meaning "in addition to the daily compensation payable to an employee under clause 2.2 of Appendix 'E'." For counsel for the employer, clause 2.2 of Appendix "E" is designed to equalize the pay of canal workers over the course of a year. He maintained that, by virtue of that clause, an employee who does not work on a given designated paid holiday would otherwise receive eight hours of compensation, due to the income-averaging provision. Therefore, the final part of clause 27.05(a) means that canal workers who work on a designated paid holiday should also receive eight hours of base pay.

20 Counsel for the employer also relied on clause 22.14(d) of the collective agreement to justify the employer's position that canal workers should be paid at the base rate for eight hours if they work on a designated paid holiday, regardless of the number of hours effectively worked that day. Counsel for the employer argued that clause 22.14(d) sets out, for greater certainty, how certain provisions of the collective agreement should be administered. One of those provisions is about designated paid holidays and how many hours to account for when calculating remuneration.

21 For counsel for the employer, the fact that under clause 22.14(d) of the collective agreement, a designated paid holiday "shall account for" either 7.5 or 8 hours supports his argument that, in this case, the number of hours to be paid at the base pay rate to a canal worker who works on a designated paid holiday is eight.

22 Counsel for the employer also argued that in Guérette, Gérin-Lajoie and Malo, in which the same collective agreement and the same employer were involved, the adjudicator has already decided the hours of work code applied to the canal workers. Counsel for the employer argued that the Guérette, Guérin-Lajoie and Malo decision applies and that I should conclude that canal workers who worked on a designated paid holiday should be getting 8 hours base pay.

23 On the issue of past practice, counsel for the employer argued that, for me to consider that argument, I must first determine that the language of the collective agreement is ambiguous. Counsel for the employer maintained that the bargaining agent did not demonstrate that the language in question is ambiguous. Therefore, I should not rely on how the parties applied clause 27.05(a) in the past to determine this grievance. Counsel for the employer argued that the plain language of the collective agreement should prevail in this case and that it supports the employer's position that canal workers who work on a designated paid holiday should be paid 8 hours of base pay. Counsel for the employer also referred me to jurisprudence on the issue of past practice.

24 Finally, on the issue of estoppel, counsel for the employer referred me to Brown and Beatty, which lists the four elements of estoppel as follows:

- a clear and unequivocal representation;

- a clear intention to rely on that representation;

- a reliance on that representation; and

- a detriment resulting from that reliance.

25 Counsel for the employer submitted that, in this case, there is no evidence of any promise or unequivocal representation made by the employer; nor that there was any evidence that the bargaining agent relied on a promise or representation made by the employer. Counsel for the employer concluded that, although there was a long-standing practice to credit canal workers who work on a designated paid holiday, as set out in the agreed statements of facts, it alone is not evidence that supports the application of the doctrine of estoppel to this case.

B. Whether Appendix "E" employees are entitled to shift premiums during the non-navigation season

1. For the bargaining agent

26 In his submission, the representative for the bargaining agent maintained that, during the non-navigation season, canal workers covered by Appendix "E" of the collective agreement are eligible to receive the shift premium provided in article 23.

27 Article 23 of the collective agreement reads as follows:

Shift Premiums

Excluded Provisions

This article does not apply to employees on day work, covered by clauses 22.05 to 22.07 and to employees classified in SC group.

23.01 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 5:00 p.m. and 6:00 a.m. The shift premium will not be paid for hours worked between 6:00 a.m. and 5:00 p.m.

23.02 Weekend Premium

An employee working on shifts during a 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.

28 The representative for the bargaining agent submitted that, essentially, canal employees covered by Appendix "E" of the collective agreement were never excluded from the application of article 23. Therefore, they are entitled to the shift premium.

29 The representative for the bargaining agent explained that, since canal employees covered by Appendix "E" of the collective agreement are excluded, by virtue of clause 1.2 of Appendix "E", from the application of the hours of work provided for in article 22, they cannot therefore be covered by the exception mentioned in article 23, which states that the shift premium provision does not apply to employees on day work covered by clauses 22.05 to 22.07. Therefore, if the canal workers are not covered by the exception excluding them from the benefit of the shift premium provided for in article 23, then they should receive the benefit of the shift premium provided by article 23.

2. For the employer

30 Counsel for the employer pointed out that clause 22.10 of the collective agreement defines shift workers. However, the application to canal workers of article 22 is excluded by clause 1.2 of Appendix "E".

31 Counsel for the employer argued that the fact that there is no definition of shift workers outside clause 22.10 and that by virtue of clause 1.2 of Appendix "E" clause 22.10 is excluded for canal employees simply means by extension that they are not shift workers.

32 Counsel for the employer also stated that the bargaining agent did not submit any evidence as to canal workers' hours of work during the non-navigation season. Therefore, since the bargaining agent did not demonstrate that canal workers work shifts during the non-navigation season, they do not meet the essential condition that would allow them to claim the shift premium.

33 For counsel to the employer, the only reference to shift premiums for canal employees in the non-navigation season is found in Appendix "E" of the collective agreement, which refers to the fact that, during the winter season, canal workers are usually scheduled to work Monday to Friday from 6:00 to 18:00. Counsel for the employer pointed out that that reference coincides with the definition of day workers found in article 22.

34 As for the bargaining agent's argument that, since the application of article 23 of the collective agreement to canal workers is not specifically excluded, contrary to article 22, it must necessarily apply to canal workers, counsel for the employer maintained that that argument must fail since both the definitions of day worker and shift worker are found in article 22, the application of which is excluded by clause 1.2 of Appendix "E".

35 Alternatively, counsel for the employer argued that, if I were to agree that the definitions of day worker and shift worker, as set out at article 22, apply, there is still no evidence that canal employees work shifts during the non-navigation season.

IV. Reasons

A. How Appendix "E" employees' compensation is to be calculated when they work on a designated paid holiday

36 It is not in dispute that, on October 15, 2006, the employer issued an annotated Appendix "E" of the collective agreement in which it changed its long-standing practice of calculating compensation for canal workers who work on a designated paid holiday (see the agreed statements of facts).

37 The parties also agreed that the first issue between them is centered on the final part of clause 27.05(a) of the collective agreement, which reads, "…in addition to the pay that the employee would have been granted had he or she not worked on the holiday." Therefore, the issue is determining what the parties referred to as the base pay rate for canal workers who work on a designated paid holiday.

38 As I understand it, under the former system, before the employer issued its annotated Appendix "E" of the collective agreement, which was implemented on October 15, 2006, canal workers were compensated at straight time for all hours worked on a given designated paid holiday. So, for example, if an employee worked 8 hours on Christmas Day, he or she was paid eight hours at straight time (base pay) and eight hours at time and one-half (extra pay). If the employee worked 10 hours on Christmas Day, he or she was paid 10 hours at straight time (base pay) and 8 hours at time and one-half, plus two hours at double time. With the introduction of the annotated Appendix "E" in October 2006, the long-standing practice of pay calculation for an employee working on a designated paid holiday changed. The employer took the position that a canal worker who works on a designated paid holiday should be paid eight hours of base pay regardless of the number of hours actually worked that day. I understand that the matter of compensation for the part of clause 27.05(a) dealing with premium pay is not at issue.

39   I also understand that a complicating factor in this case is caused by clause 2.2 of Appendix "E" of the collective agreement, which is designed to equalize the pay of canal employees over the course of a year. Since canal employees work principally but not exclusively during the navigation season, the parties attempted to equalize their pay so that they would have money coming in during the off-season. Basically, canal workers are paid for a fictional 40-hour workweek, and all hours worked over the 80 hours in a 2-week period are banked and paid during the off-season.

40 As indicated, the parties do not agree on the meaning of the final part of clause 27.05(a) of the collective agreement, which reads as follows: "… in addition to the pay that the employee would have been granted had he or she not worked on the holiday." The bargaining agent argued essentially that this wording refers to the hours normally scheduled for canal employees during the navigation season. The employer maintained that, through the interaction of several clauses and Appendix "E", I must conclude that the last part of clause 27.05(a) means that canal workers who work on a designated paid holiday would be compensated at eight hours at straight time for that day.

41 It is not in dispute that Appendix "E" of the collective agreement excludes the application of several clauses of the collective agreement to canal workers. One of them is the hours of work clause, found in article 22.

42 The representative for the bargaining agent interpreted clause 27.05(a) of the collective agreement with what he called "reality." He argued that clause 27.05(a) refers to actual hours worked by canal employees on a designated paid holiday. In essence, the representative for the bargaining agent argued that, during the navigation season, employees typically work more than their 80 hours every two weeks and they should be compensated accordingly, including for designated paid holidays. Moreover, the representative argued that the employer was estopped from changing the long-standing practice of compensating canal workers who worked on a designated paid holiday.

43 Counsel for the employer argued that canal workers have an 8 hour workday. Counsel for the employer pointed to clause 22.01(c) and Appendices "B" and "E" of the collective agreement and their interrelationship. Although Appendix "E" excludes the application of article 22 to canal employees, counsel for the employer relied on Appendix "B", entitled "Hours of Work Code," of which the application to canal workers is not specifically excluded, to support his position that canal workers should be compensated for 8 hours of base pay for all work performed on a designated paid holiday.

44 As I understand counsel for the employer's argument, Appendix "B" of the collective agreement justifies "capping" base pay at 8 hours per day, regardless of the number of hours effectively worked on a designated paid holiday.

45 I am not convinced by the employer's argument. In my view, Appendix "B" of the collective agreement does not set out any substantive rights and therefore cannot be relied on to justify its position. Although the introductory paragraph of Appendix "B" states: "The following classification groups are listed below in order to identify which Hours of Work Code is to be used in the application of the provisions of this collective agreement", this phrase was not meant to create or delineate rights but only to make the processing of rights set out in the collective agreement easier to do. In my opinion, Appendix "B" merely provides a handy chart for pay personnel and coding purposes and does not determine how many hours canal workers who work on a designated paid holiday should be paid for.

46 It seems to me that not paying employees for hours worked goes against the basic principles of pay expressed in the collective agreement. It is hard to understand why the employer would pay an employee less for work performed on a designated paid holiday than it would otherwise on any other day of the year. In my view, if that were the case, the collective agreement would have to be clear about it.

47 Counsel for the employer also argued that clause 27.05(a) of the collective agreement specifically incorporates article 22 inasmuch as it deals with daily hours of work. Moreover, counsel for the employer pointed to clause 22.14(d), which sets out, for greater certainty, how certain provisions of the collective agreement should be administered. Again, although counsel for the employer's argument might be interesting, I fail to see how it could prevail in this context since the collective agreement is clear – article 22 does not apply to canal workers. For me, the reason it does not apply appears to be that the parties knew that canal workers face a different reality than other workers, and so, special provisions were designed just for them.

48 In his submissions, counsel for the employer referred me to Guérette, Gérin-Lajoie and Malo. In that case, the grievors challenged the employer's decision to pay them for 8 hours for the day on which they took volunteer or personal leave, even though their normal work schedule provided for a 10- or 11-hour day. The issue to be decided was the value of a "day" under clause 48.02 of the collective agreement. Although I agree that some of the issues raised in that decision are interconnected with those under consideration in this case, nevertheless, I find that they are different and that they involved a different clause and phrase. Therefore, Guérette, Gérin-Lajoie and Malo does not apply to this case.

49 Although both parties submitted their positions on the issue, I must point out that no evidence was adduced as to the daily compensation received by employees who did not work on a designated paid holiday, as contemplated by clause 27.05(a) of the collective agreement.

50 I must determine whether that final part is ambiguous and unclear with respect to this case.

51 As a general rule, the parties who enter into a legally binding collective agreement are not allowed to resort to extrinsic evidence to resolve an issue arising from that agreement. However, when the terms of the collective agreement are ambiguous, exceptions are allowed, such as resorting to the negotiation history or past practice. In this case, no reference was made to the negotiation history but the parties agreed that the method of calculating compensation before October 2006 was the subject of a long-standing practice, as detailed in the agreed statement of facts of September 2012.

52 Counsel for the employer argued that, in the presence of the clear wording of the collective agreement, I should not resort to past practice to determine this issue. I agree with him that an adjudicator should not have resort to past practice when interpreting the wording of a clause of a collective agreement that is clear. However, this case deals with the inconclusive language contained in clause 27.05(a) when it comes to determining the base pay of a canal worker who works on a designated paid holiday. In my opinion, to interpret the final part of clause 27.05(a) as if it refers to clause 2.2 of Appendix "E", as suggested by counsel for the employer, would add wording to a clause that the parties could easily have added themselves but did not. The fact that the interpretation of this clause requires, according to the employer, reference to other clauses as well as the addition or reading-in of additional words, is an indicator of ambiguity. Moreover, to agree with the employer's argument about the interplay of clause 27.05(a) and clause 2.2 of Appendix "E" in my view would result in an unduly complicated and circuitous way to reach an answer. Usually, interpretations are more straightforward, since they address either how the parties dealt with the issue at the table or how they would have done so had the question been posed to them.

53   In the circumstances, in the absence of evidence on how the last part of clause 27.05(a) of the collective agreement was applied to those employees who did not work on the designated paid holiday, and after considering the parties' arguments and the relevant clauses of the collective agreement, I conclude that the final part of clause 27.05(a), in the context of this case, is reasonably susceptible to more than one meaning. In other words, I believe that the issue, given the lack of evidence, cannot be satisfactorily resolved by referring to the final part of clause 27.05(a) alone. Therefore, I conclude that, for this case, the last part of clause 27.05(a) is ambiguous and unclear inasmuch as it deals with basic pay for canal workers who work on a designated paid holiday.

54 As stated in the agreed statements of facts, there is no dispute about the long-standing practice of compensating canal employees who work on a designated paid holiday. In the circumstances, I decide that, since the language of clause 27.05(a) of the collective agreement is inconclusive in determining how canal workers should be compensated on a designated paid holiday, I will rely on the long-standing practice established by the employer before October 2006. The employer's practice of paying employees their base rate for all hours worked by them was a representation by the employer concerning the interpretation of the clause in question and could do nothing but lead the bargaining agent to rely on it. The employer's practice of paying employees for all hours worked was consistent with the typical application of the terms of the collective agreement and was not such as to alert the bargaining agent that there might be a problem with the application of the clause in question which necessitated it raising the issue at the bargaining table. I agree with the representative for the bargaining agent that the employer's long-standing practice of paying for all hours worked on a designated paid holiday created an estoppel and that the bargaining agent was entitled to rely on it. Therefore, I conclude that the long-standing practice of compensating canal employees who worked on a designated paid holiday before October 2006 ought to have applied in this case. This decision applies only for the period from when the employer changed the long-standing compensation practice, October 15, 2006, until the expiry date of the collective agreement, August 4, 2007.

B. Whether: Appendix "E" employees are entitled to shift premiums during the non-navigation season

55 The issue is whether, during the non-navigation season, canal workers are employees on day work or are shift workers and therefore entitled to the shift premium of article 23 of the collective agreement.

56 I must point out that, with respect to this issue, and contrary to the previous issue of compensation on designated paid holidays, the source of the disagreement between the parties has not been explained. The agreed statements of facts do not reveal whether this issue was caused by a change to a long-standing practice in how the employer dealt with the shift premium for canal workers or whether it is a new issue. At times, such information can assist an adjudicator in interpreting the collective agreement, as it did in this case on the issue of designated paid holidays. The September 2012 agreed statement of facts refers only to the long-standing practice for handling pay for designated paid holidays. Therefore, I must assume for the purpose of deciding this issue that there is no argument involving past practice between the parties.

57 As I have already stated, no evidence was adduced regarding the manner in which canal workers work during the non-navigation season in order to aid me in interpreting the collective agreement.

58 I am left to try to interpret the collective agreement without the benefit of background information explaining how the dispute arose and without benefit of evidence regarding the circumstances under which canal workers are called to work during the non-navigation season. The parties left me to come to a conclusion on the basis of the wording of the collective agreement alone

59 Although the bargaining agent argued that canal workers work shifts during the non-navigation season because the application of article 23 of the collective agreement to them has not been specifically excluded, no evidence in support of this argument was proffered as no evidence at all regarding work during the non-navigation season was led by either party. As to the employer's argument, it argues that as the definitions of the day and shift worker found in article 22 do not apply to canal workers, such workers cannot be eligible to receive the shift premium during the non-navigation season. According to the employer's argument, canal workers appear to be neither day nor shift workers but some unspecified "other" type of employee during the non-navigation season. Again, although the collective agreement refers to only two types of employees in terms of hours of work (day worker and shift worker), the employer adduced no evidence in support of its position that a third category of employee exists.

60 In the present case, the bargaining agent has the burden of proof on the balance of probabilities. In my opinion, the bargaining agent has not met its burden. The argument of each of the parties raises problematic issues that I am unable to resolve on the balance of probabilities. As the union bears the burden of proving its case and has not done so, I need not go further and am forced to decide that the policy grievance on this issue must be dismissed.

61 In my opinion, to succeed in its argument, the bargaining agent had to demonstrate that canal workers work shifts during the non-navigation season. As it led no evidence at all on this issue, it did not do so. As a result, that part of the grievance is therefore denied.

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

V. Order

63 The policy grievance is allowed in part.

64 The portion of the policy grievance dealing with compensation for canal workers who work on a designated paid holiday is allowed.

65 The portion of the policy grievance dealing with the shift premiums is denied.

February 20, 2013.

Linda Gobeil,
adjudicator