FPSLREB Decisions

[1]   This grievance relates to the interpretation of the designated paid holiday provision for correctional officers on variable hours of work schedules. Doug White, a correctional officer at the Atlantic Institution in Renous, New Brunswick, filed a grievance on April 22, 2001. The final level response is dated February 6, 2002, and the grievance was referred to adjudication on March 20, 2002. The grievor testified on his own behalf, and there were two witnesses for the employer.

Evidence

[2]   Mr. White works on a variable hours of work schedule, as provided for in the collective agreement between the employer and his bargaining agent, UCCO-SACC-CSN, (Exhibit G-1). Article 34 reads as follows:

ARTICLE 34
VARIABLE HOURS OF WORK

The Employer and the bargaining agent agree that the following conditions shall apply to employees for whom variable hours of work schedules are approved pursuant to the relevant provisions of this collective agreement. The agreement is modified by these provisions to the extent specified herein.

It is agreed that the implementation of any such variation in hours shall not result in any additional expenditure or cost by reason only of such variation.

1. General Terms

The scheduled hours of work of any day as set forth in a work schedule, may exceed or be less than the regular workday hours specified by this agreement; starting and finishing times, meal breaks and rest periods shall be determined according to operational requirements as determined by the Employer and the daily hours of work shall be consecutive.

For shift workers, such schedules shall provide that an employee's normal work week shall average the weekly hours per week specified in this agreement over the life of the schedule. The maximum life of a schedule shall be six (6) months.

For day workers, such schedules shall provide that an employee's normal work week shall average the weekly hours per week specified in this agreement over the life of the schedule. The maximum life of a schedule shall be twenty-eight (28) days.

Whenever an employee changes his or her variable hours or no longer works variable hours, all appropriate adjustments will be made.

2. Conversion of Days to Hours

The provisions of this agreement which specify days shall be converted to hours. Where the agreement refers to a "day", it shall be converted to hours in accordance with Article 21 of this agreement.

Notwithstanding the above, in clause 30.02, Bereavement Leave with Pay, a "day" will have the same meaning as the provisions of the collective agreement.

For a work week of thirty-seven and one-half (37 1/2) hours, a day shall be converted to seven and one-half (7 1/2) hours;

3. Implementation/Termination

Effective the date on which this article applies to an employee, the accrued leave credits shall be converted from days to hours.

A change to the normal weekly hours of work for an employee will require that the accrued hourly credits be reverted to days and recalculated at the changed conversion rate.

Effective the date on which this article ceases to apply to an employee, the accrued vacation and sick leave credits shall be converted from hours to days.

4. Leave - General

When leave is granted, it will be granted on an hourly basis and the hours debited for each day of leave shall be the same as the hours the employee would normally have been scheduled to work on that day.

All leave provisions which specify days in this collective agreement shall be converted to hours as follows:

	HOURS 7 1/2
- five-twelfths (5/12) day	3.125
- one-half (1/2) day	3.750
- five-sixth (5/6) days	6.250
- one (1) day	7.500
- one and one-quarter (1 1/4) days	9.375
- one and two-thirds (1 2/3) days	12.500
- two and one-twelfth (2 1/12) days	15.625
- two and one-half (2 1/2) days	18.750

5. Specific Application

For greater certainty, the following provisions shall be administered as provided herein:

Interpretation and Definitions

"Daily rate of pay" - shall not apply.

Overtime

Overtime shall be compensated for all work performed on regular working days or on days of rest at time and three-quarters (1 3/4).

Travel

Overtime compensation referred to in clause 27.04 of this agreement shall only be applicable on a normal day for hours in excess of the employee's daily scheduled hours of work.

Designated Paid Holidays

(a) A designated paid holiday shall account for the normal daily hours specified by this agreement.

(b) When an employee works on a Designated Paid Holiday, the employee shall be compensated, in addition to the normal daily hours of pay specified by this agreement, time and one-half (1 1/2) up to his or her regular scheduled hours worked and double (2) time for all hours worked in excess of his or her regular scheduled hours.

Vacation Leave

Employees shall earn vacation at the rates prescribed for their years of service as set forth in Article 29 of this agreement. Leave will be granted on an hourly basis and the hours debited for each day of vacation leave shall be the same as the employee would normally have been scheduled to work on that day.

Employees scheduled to work any portion of a fiscal year under the variable hours of work provisions of this agreement shall not have fractional vacation entitlement of less or more than one-half (1/2) day increased to the nearest half day.

Sick Leave

Employees shall earn sick leave credits at the rate prescribed in Article 31 of this collective agreement. Leave will be granted on an hourly basis and the hours debited for each day of sick leave shall be the same as the employee would normally have been scheduled to work on that day.

....

Exchange of Shifts

On exchange of shifts between employees, if provided in this collective agreement, the Employer shall pay as if no exchange had occurred.

...

[3]   For the week of April 16, 2001, Mr. White was scheduled for a 12-hour shift on the 16th and 17th, a rest day on the 18th and 19th, and then three eight-hour shifts for the balance of the week (Duty Roster; Exhibit E-2). On April 16, Easter Monday, he was scheduled to work from 11:00 a.m. to 3:00 p.m. (four hours) and was "statted off" from 7:00 a.m. to 11:00 a.m. and from 3:00 p.m. to 7:00 p.m. (a total of eight hours) (Exhibit E-4).

[4]   Mr. White grieved the fact that he was "statted off" for eight hours and had to work for four hours. The corrective action requested was: "When you get statted off on a 12 hour shift, you get the whole 12 hours off."

[5]   The variable hours of work schedule at the Atlantic Institution provides for 12- and eight-hour shifts on a two-week rotation. The hours in a shift are determined by Dale Lawson, a correctional supervisor at the Atlantic Institution, on a roster that he establishes. The hours of work over a 12-week period add up to 450 hours, or 37.5 hours per week, on average. The schedule provides for three consecutive days of rest, every two weeks. Those employees who are not on a variable hours of work schedule work a 37.5-hour week.

[6]   Donna Crowell, a compensation advisor based in the regional headquarters in Moncton, testified that employees on a variable hours schedule are paid bi-weekly on the basis of 37.5 hours worked per week, no matter how many hours are actually worked. Over the life of the roster (12 weeks), the number of hours worked will average out at 37.5 hours per week. Overtime and other premium pay are paid by a separate cheque.

[7]   Ms. Crowell also testified that it is up to the person who makes the roster to determine the necessary scheduled hours to make up the required hours. Dale Lawson, correctional supervisor (CX-3), was responsible for the rosters at the Atlantic Institution.

[8]   In a memorandum to all correctional officers dated April 7, 2001 (Exhibit E-4), Mr. Lawson wrote:

...

...people who are only scheduled for 4 hours to work have the option of taking the 4 hours as annual leave or leave without pay...

[9]   Mr. Lawson testified that if a correctional officer was scheduled to work a 12-hour shift and took sick leave for part of that shift, the sick leave hours would be deducted hour for hour from the 12-hour shift.

[10]   Mr. White testified that there was another option available, which was to find someone to replace you for those hours. This is what he did on April 16. Had he not found a replacement and not worked the scheduled four hours, he would have had to use four hours of leave credits. If he had worked the four hours, his rate of pay would have been time and a half, in addition to his regular salary. Mr. White testified that his replacement was paid time and a half for the four hours. Mr. White was paid for the designated paid holiday (in other words, the eight hours were credited to his required total of 450 hours over the shift cycle).

[11]   The roster for the relevant bi-weekly period (April 16 through April 29) (Exhibit E-1) shows that Mr. White worked 64 hours instead of the 75 hours that a regular day worker would work. Over the 12-week shift cycle, he worked the full 450 hours. Ms. Crowell testified that Mr. White was required to work a 12-hour shift in order to meet the total 450 hours.

[12]   Day workers who were "statted off" were given their entire eight-hour shift off (Exhibit E-4).

Arguments

For the Grievor

[13]   The grievor's representative, Mr. Mancini, stated that Article 34, "Variable Hours of Work", came into being at a time when Article 21, "Hours of Work and Overtime", was already in place. Therefore, Article 34 needed to be seen in this light. Variable hours of work, in terms of cost in the broad general sense, have changed nothing for the employer. Federal penitentiaries operate around the clock and year round. No matter how the schedules are structured, ultimately the cost is the same to the employer.

[14]   In creating the scheme of variable hours of work, the parties left the 37.5-hour workweek as a "necessary fiction", because there has to be an adjustment between the variable hours scheme and the general provisions in the collective agreement. Regardless of how many hours worked, those on variable hours of work are paid for 37.5 hours.

[15]   The variable hours of work scheme is a very important right for employees. Penitentiaries are dangerous and stressful work environments. The variable hours scheme was a big step forward in the life of officers and provides for a better family and social life.

[16]   One of the most important characteristics of the scheme is that it was not meant to affect substantive rights at all. Article 34 was not intended to change anything except for allowing for variable hours. It was not intended to result in the splitting of a designated holiday, as was done in Mr. White's case.

[17]   In terms of the provision in Article 34, that the variation of hours "shall not result in any additional expenditure or cost", what difference does it make if the grievor was off for eight or 12 hours? He would have been paid time and a half and his replacement was paid time and a half. There is not one iota of difference in the cost to the employer. The reverse is not true, however. The grievor was put under an obligation to find a replacement or otherwise he would lose four hours of vacation or other type of leave.

[18]   Mr. Mancini, relying on King and Holzer, 2001 PSSRB 117 (Board files 166-34-30346, 30638 and 30639), concluded that a day is a period of 24 hours, and that Mr. White should have received the full 12 hours off as a statutory holiday. (Subsequent to this hearing, the decision was upheld by the Federal Court, Trial Division: [2003]   F.C.J. No. 777.)

[19]   Counsel for the grievor also referred to the following decisions: Canada (Attorney General) v. King [2002]   F.C.J. No. 673; [2000]   F.C.J. No. 1987; Board files 166-2-28332 and 28333).

For the Employer

[20]   This is a simple issue to determine: what happens when you take off a statutory holiday when you are scheduled to work 12 hours? The entitlement is as negotiated by the parties. The variable hours of work provision did not create a special class of employee, and correctional officers on a variable hours schedule should be entitled to nothing more than what non-shift workers are entitled to - 7.5 hours credit for a designated paid holiday.

[21]   The collective agreement does not provide that a day is a 24-hour period, as argued in King and Holzer (supra). The collective agreement has converted days into hours (clause 34.2). If the parties had wanted a day to be a day, as in King and Holzer, they would have done that; however, they very clearly provided for the conversion of days to hours. Furthermore, the parties have specified bereavement leave as an exception to the conversion to hours: "A day will have the same meaning as the provisions of the collective agreement" (Article 34, paragraph 2). In other words, a day is 7.5 hours, except for bereavement leave.

[22]   The designated paid holiday clause (g) of Article 34 states that a designated paid holiday "shall account for the normal daily hours specified by this agreement". Clause (b), which applies when the employee works on a designated paid holiday, refers to "regular scheduled hours worked". If it had been the intention that employees would be compensated for 12 hours when they do not work on a designated paid holiday, the parties could have used the same language for each clause.

[23]   Clause 21.01 specifies the "normal daily hours" of work. If the parties had intended to refer to regularly scheduled hours, they would have said so. They specifically chose the phrase "normal daily hours".

[24]   The variable hours process was created for administrative reasons. The benefit to the employees is additional consecutive days of rest. It was not meant to create an additional expense or a special class of employee that benefits from a greater benefit for pay on a designated holiday.

[25]   Mr. Fader also distinguished the King and Holzer decision (supra) on a number of grounds, including that in that case a "day" was not defined, there was no provision for days to be converted to hours, and it dealt with family-related leave.

[26]   In King (supra), the adjudicator agreed with the employer's position, at paragraph 24, where she distinguished between "regular scheduled hours worked" and "normal hours of work".

[27]   The question is, when an employee takes off a designated paid holiday, how much is that worth? The collective agreement provides for the conversion to 7.5 hours. However, if the employee scheduled for a 12-hour shift does not work, then there is a negative balance in terms of the total number of hours required to be worked over the 12-week period.

[28]   Dissimilar terms in a collective agreement should be given different meaning. The designated paid holiday clause refers to "normal daily hours", which cannot mean the same as "regularly scheduled hours". When you are scheduled to work 12 hours, you are there four hours, over and above the eight hours (the normal daily hours). A greater entitlement is not suggested by the collective agreement language.

[29]   Counsel for the employer also referred to Palmer and Palmer, Collective Agreement Arbitration in Canada, Third Edition (1991).

Reply

[30]   There was no evidence presented as to how the application of the Variable Hours of Work provisions, as requested by the grievor, would result in additional cost to the employer.

[31]   Paragraph (a) of the designated paid holiday section of Article 34 has nothing to do with an entitlement; it states that it "shall account for" the normal daily hours. In French, it says, "correspond". It is Article 26 that provides the entitlement. Article 34 is not designed to provide an entitlement; instead, it deals with a "fiction" of 37.5 hours.

[32]   The agreement does not enable the employer to split a designated paid holiday as it have done here, and the employer has not pointed to a provision that would support such an interpretation.

Reasons for Decision

[33]   In their collective agreement, the parties have addressed the issue of designated holidays and variable shift schedules. I must first examine the collective agreement provisions to see if those provisions are determinative of this grievance, before I look to other jurisprudence.

[34]   The Variable Hours of Work provisions (Article 34) modifies other provisions of the collective agreement, and has a specific provision relating to designated paid holidays. The Article states that a designated paid holiday "shall account for the normal daily hours specified by this agreement" (emphasis added). The phrase "normal daily hours" is not specifically defined in the agreement. In the "General Terms" portion of Article 34, there is a reference to an employee's "normal work week" (which is required to average the weekly hours per week specified in the agreement over the life of the shift schedule) but there is no reference to "normal daily hours". However, clause (b) of the Designated Holiday provisions makes a distinction between "normal daily hours" and "regular scheduled hours", which provides some clarity.

(b) When an employee works on a Designated Paid Holiday, the employee shall be compensated, in addition to the normal daily hours of pay specified by this agreement, time and one-half (1 1/2) up to his or her regular scheduled hours worked and double (2) time for all hours worked in excess of his or her regular scheduled hours.

[35]   The "regular scheduled hours worked" is a reference to the hours for each shift that each employee is scheduled to work. "Normal daily hours" must therefore be something different. Clause 21.01 provides that shift work is to be scheduled so that employees, on a daily basis, work eight hours per day. This must be the "normal daily hours specified by this agreement", as there are no other daily hours for shift workers specified in the agreement.

[36]   As a result, a designated paid holiday is eight hours. Although that means a day off work with pay for those not on a variable hours of work schedule, the variable hours of work article modifies this and provides simply for eight hours off.

[37]   The scheduling of hours on a Variable Hours of Work Schedule has been largely left to management, subject only to the restriction that the daily hours of work must be consecutive (see General Terms set out in Article 34).

[38]   Since a designated paid holiday is not considered under this collective agreement as a leave provision, I find the arguments relating to the conversion of days into hours not relevant. As well, the Designated Paid Holiday provisions in this agreement do not refer to a "day".

[39]   The decision in King and Holzer (supra) is not relevant because it relates to the interpretation of the word "day", which is not an issue in this case. In addition, the family responsibility leave provision at issue in that case did not provide for a day "to account for the normal daily hours specified in this agreement".

[40]   In the other King decision (supra), the issue was the appropriate compensation for working on a designated paid holiday. The adjudicator concluded that "regular scheduled hours worked" and "normal hours of work" were not the same, and determined that "regular scheduled hours worked" are the hours employees on variable hours of work schedules are regularly scheduled to work. She did not interpret the phrase "normal hours of work".

[41]   In conclusion, a designated paid holiday is considered under this collective agreement to be eight hours. Accordingly, if Mr. White had worked on the designated holiday he would have been entitled to eight hours of pay at straight time, and time and a half for the hours he was scheduled to work (in this case, four hours). Since he did not work on that day, he was entitled to eight hours of pay at straight time only. The scheduling of shifts remains a management right under this agreement, and it is open to the employer to schedule an employee for a 12-hour shift and schedule eight of those hours off as a designated paid holiday.

[42]   Accordingly, the grievance is dismissed.

Ian Mackenzie,
Board Member

OTTAWA, June 5, 2003.