FPSLREB Decisions

[1]       Mr. Diotte has worked for the Correctional Service of Canada (CSC) for 16 years. Formerly, his hours of work were eight hours per day. However, for the past four years he has had variable hours of work and has worked 12 hours per day.

[2]    In 2001, the statutory holiday (paid holiday) on October 8 coincided with a day of rest for Mr. Diotte. That paid holiday was therefore deferred to October 10, a day that formed part of Mr. Diotte's scheduled hours of work.

[3]    On October 10, 2001, Mr. Diotte took sick leave. The employer was obliged to pay him for his statutory holiday of eight hours, and deducted four hours from his bank of sick leave.

[4]    On November 6, 2001, Mr. Diotte lodged a grievance, claiming that the paid holiday should be paid on the basis of his hours of work, that is, on the basis of 12 hours.

[5]    The grievance was referred to adjudication on October 18, 2002, and the hearing was held in Sherbrooke on June 4, 2003.

Facts

[6]    The grievor adduced his hours of work for the period at issue in the grievance (Exhibit F-2). He explained that, according to the variable hours of work provided for in article 34 of the collective agreement applicable to employees in the Correctional Services group (Exhibit F-1), the regular hours of work may be modified. In practice, however, the variable hours of work amount to the same thing: 162 twelve-hour days instead of 243 eight-hour days.

[7]    On October 10, 2001, Mr. Diotte applied for a day's sick leave, indicating that this day coincided with his deferred statutory holiday. He stated that not he, but management, wrote the notation "eight hours" on the sick leave application (Exhibit F-3).

[8]    For the absence, the employer debited 12 hours from Mr. Diotte's bank of sick leave, less eight hours for the paid statutory holiday, thus actually leaving four hours to be debited from his bank of sick leave.

[9]    Mr. Diotte alleged the existence of a double standard since, for the day of October 10, 2001, the absence was considered equivalent to 12 hours but the statutory holiday was considered equivalent to eight hours.

[10]    Mr. Diotte emphasized that there was some confusion in the interpretation of the collective agreement; in this regard, he adduced the responses at the various levels of the grievance procedure (Exhibits F-4, F-5 and F-6). At the first level, the employer's representative indicated that the collective agreement makes no reference to the duration of statutory holidays, but only to pay for hours worked.

[11]    The employer did not adduce any specific evidence, but reserved its pleadings until the oral arguments.

Arguments

[12]    The grievor stated that it seemed unfair for the employer to debit 12 hours when sick leave was involved but to pay eight hours when a statutory holiday was involved.

[13]    Mr. Diotte also argued that variable hours of work must not modify employee benefits. He referred to the Board's decision in King and Holzer, 2001 PSSRB 117 (Board File No. 166-34-30346, File No. 166-34-30638, and File No. 166-34-30639), in which the adjudicator ruled that, where there are variable hours of work, days of leave for family-related responsibilities are to be interpreted as days scheduled for the employee in question. At paragraph 22, the adjudicator wrote as follows:

[22]    A normal interpretation of the word day as a period of 24 hours is consistent with the intent and scheme of the collective agreement. Unless otherwise specified, as in the case of earned vacation or sick leave, a day must mean just that. This view is supported by the employer's own interpretation of the 10 day suspension imposed on Mr. King. In that case the employer argued that, given the grievor's shift work, a 10 day suspension amounted to 85.4 hours and not the standard 75 hours.

[14]    At paragraph 24 of the same decision, the adjudicator wrote as follows:

[24]    As was stated in the Phillips case (

supra) p. 32 ". the employer's view would perpetrate an unfairness on those employees who work long shifts .". The events giving rise to family related leave do not fit within the confines of a 7.5 hour shift.

[15]    In reply, counsel for the employer argued that the stipulations specific to article 34 shall not result in any additional cost, and modify the agreement only to the extent specified therein:

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.

[16]    Therefore, article 34 does not contradict clauses 21.01 and 21.02 of the collective agreement on hours of work.

ARTICLE 21
HOURS OF WORK AND OVERTIME

Hours of Work

Day Work

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

(a) on a weekly basis, work thirty-seven and one-half (37 1/2) hours and five (5) days per week, and obtain two (2) consecutive days of rest,

(b) on a daily basis, work seven and one-half (7 1/2) hours per day.

Shift Work

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

(a) they shall be scheduled so that employees:

(i) on a weekly basis, work an average of thirty-seven and one-half (37 1/2) hours,

and

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

**

(b) every reasonable effort shall be made by the Employer:

(i) not to schedule the commencement of a shift within eight (8) hours of the completion of the employee's previous shift,

(ii) to ensure an employee assigned to a regular shift cycle shall not be required to change his or her shift more than once during that shift cycle without his or her consent except as otherwise required by a penitentiary emergency,

and

(iii) to avoid excessive fluctuations in hours of work;

(c) they shall, except as otherwise required by a penitentiary emergency, be scheduled so that each shift ends not later than nine (9) hours after its commencement,

(d) they shall be scheduled so that an employee will not be regularly scheduled to work more than eight (8) consecutive calendar days. Exceptions may be scheduled at the request of an employee and with the approval of the Employer, or after consultation between the Employer and the Bargaining Agent,

(e) they shall be averaged over a period (in weeks) no greater than the product of two (2) times the number of correctional officer positions at the same classification level at an institution,

(f) an employee shall obtain at least two (2) consecutive days of rest at any one time.

[17]    Ultimately, modifying the hours of work to 162 twelve-hour days instead of 243 eight-hour days for employees working shifts does not result in any additional cost to the employer, but the same would not be true for granting 11 twelve-hour paid holidays instead of 11 eight-hour paid holidays.

Reasons for decision

[18]    The case cited by the grievor (supra) is not applicable to the present case. In fact, the adjudicator made clear that reference must be made to the normal interpretation of the word "day", "[u]nless otherwise specified, as in the case of earned vacation or sick leave, . ".

[19]    Article 34 itself provides specific indications on pay for designated paid holidays:

5. Specific Application

[...]

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.

[…]

[20]    The above-quoted clause refers to the normal daily hours specified in the collective agreement, that is, clause 21.02 in the present case.

[21]    Article 34 also provides indications on sick leave, indicating that the hours debited shall be the same as the employee would normally have been scheduled to work on that day (clause 34(5), under the heading "Sick Leave").

[22]    Accordingly, in this case I am bound by the specific wording of the collective agreement on holidays and by the preamble to article 34 indicating that variable hours of work shall not result in any additional cost. For these reasons, I dismiss the grievance.

Jean-Pierre Tessier,
Board Member

OTTAWA, September 3, 2003.

P.S.S.R.B. Translation