FPSLREB Decisions

[1]   Dr. Isabelle Vaillancourt, the grievor, is a veterinarian responsible for poultry slaughter establishment inspections in St-Damas. She filed a grievance stating that she:

[Translation]

[...] challenges the employer's decision of July 12, 2002, not to pay [her] at the rate of time and one-half for the work performed during the first shift changed, in accordance with clause B2.07 of her collective agreement [...]

The remedy sought is the following:

[Translation]

That the employer pay [her] at the rate of time and one-half for the work performed during the first shift changed, in accordance with clause B2.07.

[2]   No witnesses were heard; the parties instead submitted a joint statement of facts and filed exhibits on consent numbered from D-1 to D-5.

[3]   In his statement of facts, Dr. Vaillancourt's representative explained that she claimed compensation at the time and one-half rate under clause B2.07 for the first shift that she worked on June 6 and June 19, 2002, because she had not received the seven days' advance notice of the change in her shift schedule, contrary to what was required by the provision in each case.

[4]   According to him, the collective agreement signed on May 27, 2002, by the Canadian Food Inspection Agency and the Professional Institute of the Public Service of Canada with respect to the Veterinary Medicine Group (VM) bargaining unit did not refer to the magnitude of the schedule changes -- whether large or small. Accordingly, any change entitled the employee to the compensation; this is how clause B2.07 is worded and the meaning it must be given.

[5]   The employer's representative briefly submitted that the changes were in Dr. Vaillancourt's work schedule and not her shift schedule, which was unchanged. My role must be limited to applying the collective agreement and I am not to interpret it, except in the case of an ambiguity. In this case, the clause is very clear; there is no evidence of ambiguity and I cannot add to the collective agreement. According to the employer, clause B2.07 does not apply to the circumstances of this case.

[6]   Dr. Vaillancourt was paid for the overtime resulting from the changes in her work schedule.

THE EVIDENCE

[7]   The parties agreed on the following facts:

1. Dr. Vaillancourt's work schedule during the two weeks in question provided that she would work on Monday, Tuesday, Thursday and Friday at establishment 39, and on Wednesday at establishment 88, always from 7:30 a.m. to 4:00 p.m.

2. The changes to her work schedule, which are the subject of this grievance, are those of June 6 and June 19 only.

3. On June 5, 2002, the employer told Dr. Vaillancourt to report for work on June 6, 2002, from 7:00 a.m. to 3:30 p.m., at establishment 116, in Drummondville.

4. On June 18, 2002, the employer told Dr. Vaillancourt to report for work on June 19, 2002, from 7:00 a.m. to 3:30 p.m., at establishment 39.

5. At establishment 39, there are two veterinarians. They begin and finish work at different times, that is, from 7:00 a.m. to 3:30 p.m. in one case, and from 7:30 a.m. to 4:00 p.m. in Dr. Vaillancourt's case.

6. It is admitted that the code no. 086 appearing on Dr. Vaillancourt's time sheet of June 6, 2002, (Exhibit D-3) represents a schedule change within a period of less than seven days.

7. It is also agreed that the work schedule for Agency employees is subject to the operational requirements of the slaughter establishments and that it can be changed to meet those requirements.

[8]   The documents submitted by agreement also show that:

1. On June 6, 2002, Dr. Vaillancourt reported for work at establishment 116. She was paid at straight time for her work from 7:00 a.m. to 3:30 p.m. and she claimed and was paid for travel time and overtime from 6:00 a.m. to 7:00 a.m. and from 3:30 p.m. to 6:00 p.m. (Exhibits D-2 and D-3).

2. On June 19, 2002, she reported for work as requested, from 7:00 a.m. to 3:30 p.m., at establishment 39. She was paid for a normal seven and one-half-hour workday and claimed and was paid overtime for an ante mortem inspection from 6:45 a.m. to 7:00 a.m. (Exhibits D-2 and D-4).

[9]   The relevant provisions of the collective agreement read as follows:

[...]

ARTICLE B1 - HOURS OF WORK

This Article does not apply to VM Group employees on shift work, refer to Article B2, Shift Work.

[...]

B1.02 Non-Shift Work

Subject to Article B2, the normal work week shall be thirty-seven and one-half (37½) hours and the normal work day shall be seven and one-half (7½) consecutive hours, exclusive of a lunch period, between the hours of 6:00 a.m. and 6:00 p.m. The normal work week shall be Monday to Friday inclusive.

[...]

ARTICLE B2 - SHIFT WORK

B2.01

1. When, because of operational requirements, hours of work are scheduled for employees on a rotating or irregular basis, they shall be scheduled so that employees work an average of seven and one-half (7½) hours per day and thirty-seven and one-half (37½) hours per week exclusive of meal breaks.

2. Shift work shall only be scheduled during the normal work week, Monday to Friday.

3. There will be no split shifts. The Employer shall not schedule more than two (2) shifts per day at the same worksite. Each shift may have two (2) separate starting times scheduled within a two (2) hour period.

4. Prior to introducing an evening or a night shift at a worksite, the Employer will provide the employees affected by the change a minimum of three (3) months' notice. The minimum notice can be reduced or waived by the mutual consent of the employees and the Employer.

B2.02 In this Article, 'shift schedule" means the arrangement of shifts over a period of time not exceeding two (2) consecutive months and for a minimum period of twenty-eight (28) consecutive days.

B2.03 Every reasonable effort shall be made by the Employer to consider the wishes of the employees concerned in the arrangements of shifts within a shift schedule. In order to help in the consideration of the wishes of the employees concerned, a provisional shift schedule shall be prepared by the Employer and shall be posted at least one (1) month in advance.

B2.04 The Employer shall arrange shifts so that:

1. An employee's shift shall not be scheduled to commence within fifteen (15) hours of the completion of his previous shift;

2. Subject to operational requirements, no employee without his/her consent shall be scheduled to work more than two (2) consecutive weeks on the evening or night shift without a following corresponding period on the day shift.

[...]

B2.06 Provisional and final shift schedules shall indicate the working hours for each shift. The final shift schedule shall be published at least one (1) week prior to the commencement of the said shift.

B2.07 If an employee is given less than seven (7) days' advance notice of a change in their shift schedule, such employee will receive compensation at the rate of time and one-half (1½) for the work performed on the first shift changed. Subsequent shifts worked on the changed schedule shall be paid for at straight-time.

[...]

SUBMISSIONS OF THE PARTIES

[10]   Dr. Vaillancourt's representative first drew my attention to the replies given at the three grievance levels. According to him, these replies could be summarized as follows: at the first level, Dr. Vaillancourt was told, with no real explanation, that the changes did not affect the shift schedule.

[11]   At the second level, she was told that a change within the meaning of clause B2.07 is a change in the nature of the schedule, such as, for example, a day shift as opposed to a night shift, which was not the case here. A reading of the various provisions in question, including the definition in clause B2.02 and the mechanism in clause B2.06, whereby a shift schedule becomes final and therefore regular in the sense of stable for each employee, suggests that the changes made were changes in "her" shift schedule. Therefore, clause B2.07 applies.

[12]   At the third level, the manager referred to paragraphs (c) and (d) of clause B2.01. According to Dr. Vaillancourt, paragraph (c) lets the employer organize the work, as is done in establishment 39, i.e., by scheduling two shifts, one beginning at 7:00 a.m. and the other beginning at 7:30 a.m. Again, the manager failed to explain the employer's position. As for paragraph (d), it does not apply in the circumstances that concern us and should not have been called in support of the employer's position.

[13]   In fact, on June 6, 2002, the employer asked Dr. Vaillancourt to work another shift, in another location and at a different time. The work schedule for the shift at establishment 116, namely, from 7:00 a.m. to 3:30 p.m., differs from Dr. Vaillancourt's work schedule (7:30 a.m. to 4:00 p.m.). Clause B2.07 should accordingly apply for the hours not considered as overtime and for which, incidentally, Dr. Vaillancourt was paid.

[14]   On June 19, 2002, the situation is different because Dr. Vaillancourt did not have to change establishment. Only her shift schedule was changed. She was allegedly asked to follow the other veterinarian's schedule at that establishment.

[15]   Why then would the parties have wanted to include a provision like the one in clause B2.07 of the collective agreement, unless it was to compensate an employee whose shift schedule is changed at the very last minute? According to Dr. Vaillancourt, the definition in clause B2.02 must be complied with; in labour relations there is another vocabulary to designate shifts. Any change that does not require a major change, such as changing from a day shift to a night shift, is covered by clause B2.07.

[16]   Two decisions have been submitted to me: Spears v. Treasury Board (Transport Canada), PSSRB file 166-2-14759 (1985) (QL), and Turcotte v. Treasury Board (Department of Environment), PSSRB file 166-2-13434 (1982) (QL). In support of his argument, Dr. Vaillancourt's representative stressed that the adjudicator had noted that all the cases that had been submitted to him seemed to indicate [Translation] "that a change in the shift schedule of an employee involves the substitution of a shift for one already scheduled for the employee concerned […]" Although the adjudicator in that case found there had been no change in the employee's work schedule since the employee was not supposed to work on December 26, in this case, I should find that there was a change in schedule, because a substitution had been made to Dr. Vaillancourt's shift.

[17]   Dr. Vaillancourt's representative also drew my attention to the remarks of the adjudicator in Spears (supra) concerning the purpose of the clause in question: "The aim of clause 14.10 [similar in every respect to clause B2.07 of the collective agreement in the present case] is fairly clear: to give reasonable advance notice to an employee whose work schedule is changed."

[18]   A change in the hours of work is an inconvenience. Veterinarians' work schedules are very demanding. The employer in a slaughter establishment must make sure that a veterinarian is always on duty. Moreover, any change in an employee's schedule has an impact on the organization of his private life, and the clause providing for seven days' notice was included in the collective agreement for that reason. To give this provision meaning, I should therefore allow this grievance.

[19]   The employer's representative began by stating that there was no dispute that Dr. Vaillancourt works on shifts and that she has a regular work schedule as admitted and jointly described by the parties. The question that I must decide is whether there was a change in the shift schedule. There is an important distinction to be made between a change in the "work schedule" and a change in the "shift schedule".

[20]   Clause B2.07 applies to a change in the employee's shift schedule and not a change in the employee's work schedule. The words are there for a reason. The definition of shift schedule is found in clause B2.02 of the collective agreement. It means the arrangement of shifts over a period of time not exceeding two consecutive months and for a minimum period of twenty-eight consecutive days. This gives the employer room to decide how many veterinarians will work days and how many will work nights, as needs dictate. The present case involves the assignment of shifts by establishment. The clause does not refer to the work schedule in terms of time, that is, in terms of the hours to be worked, such as from 7:00 a.m. to 3:30 p.m., for example. It is agreed that, after the employee has worked the number of hours required, he works overtime.

[21]   According to the employer, clause B2.07 is clear and I cannot interpret it; I must limit myself to applying it. At establishment 39, there is only a day shift. There are two veterinarians working the day shift, but they begin at different times within a period of two hours, as subclause B2.01(c) allows. According to the employer, the clause confirms that different shifts are not involved, since it allows for having employees begin at different times within a period of two hours. The representative also emphasized that, as new collective agreements were negotiated, the provision was clarified over the years, and she referred to the 1993 agreement, produced as Exhibit D-1. The same would be true of a change of establishment.

[22]   Accordingly, the changes made were a change in Dr. Vaillancourt's personal work schedule and not in her shift, since she still worked days. There was a half-hour change in her work schedule, not a change in her shift. Her schedule remained essentially the same; she was not suddenly asked to work a night shift.

[23]   The meaning of the word "shift" to describe an employee's functions or the performance of his or her duties should not be confused, either. The word should be interpreted here in accordance with clause B2.02, nothing more. The clause refers to the schedule for all of the employees and not individual schedules. In support of this interpretation, the employer cites the decision in Turcotte (supra) in which the adjudicator explained that "[...] this expression concerns the arrangement of shifts for a group of employees working shifts and not the resulting individual schedule of each employee [...]"

[24]   The inconvenience caused to Dr. Vaillancourt by the changes in her work schedule was amply compensated for by the reimbursement of her expenses and the overtime paid, as itemized in Exhibit D-2.

[25]   According to the case law (Spears (supra)), in order for clause B2.07 to apply, another shift has to be substituted for an already scheduled shift. The words must apply to the general arrangement of shifts by work establishment, as opposed to the hours of work indicated for each person. Now, in Dr. Vaillancourt's case, it was the consequence of different starting times that caused a change in her work schedule.

[26]   In Evangelho v. Treasury Board (Agriculture Canada), PSSRB files 166-2-22737 to 22741 (1993) (QL), the adjudicator concluded that the fluctuation of start times in that case did not constitute a change in the work schedule. The decision in Piotrowski v. Canada (Canadian Food Inspection Agency), 2003 FCT 757, offers another example of a change in shift. Lastly, the decision in Doyon v. Public Service Staff Relations Board, [1978] 1 F.C. 31 (F.C.A.), confirms that, if the wording is clear, one cannot attempt to reinterpret a freely negotiated provision. It cannot be concluded that clause B2.07 applies to this situation.

[27]   In reply, Dr. Vaillancourt's representative answered that overtime cannot be used to compensate an inconvenience resulting from a change in the schedule, but must be used to pay for the services rendered by the employee in addition to her regular hours of work. Clause B2.07, however, provides a way to compensate that inconvenience. The employer asked Dr. Vaillancourt to work another shift; this was not a change in her own work schedule and she was entitled to be compensated.

REASONS

[28]   Concerning this last point, I agree that these payments are not of the same nature. The question here is whether clause B2.07 applies in the circumstances of this case, so as to serve as a basis for the payment of the shift premium for the first shift worked.

[29]   The collective agreement provides for two work patterns: the normal work schedule and the shift schedule, as described in clauses B1.02 and B2.02 cited above.

[30]   From reading clause B1.02, it might be thought that Dr. Vaillancourt works a normal work schedule, as defined in that clause. Both parties agree, however, that Dr. Vaillancourt works on a shift schedule. According to clause B2.01(b), shift work is scheduled from Monday to Friday and also complies with the requirements of clause B2.01(a). Shift work hours match the operational requirements of slaughter establishments. To satisfy these requirements, the employer fixed Dr. Vaillancourt's work schedule from 7:30 a.m. to 4:00 p.m. in two establishments. She works every day at establishment 39, except for Wednesdays, when she goes to establishment 88.

[31]   Another shift was created for establishment 39 and the veterinarian to whom it was assigned has a different work schedule in that he regularly works from 7:00 a.m. to 3:30 p.m. The evidence did not show whether that person changed establishments on a regular basis as Dr. Vaillancourt does on Wednesdays.

[32]   The two shifts begin "[...] at two separate starting times scheduled within a two-hour period [...]" (clause B2.01(c)). The employer did not schedule "more than two shifts per day at the same worksite." The two shifts are scheduled, therefore, within normal working hours, that is, between 6:00 a.m. and 6:00 p.m.

[33]   It is clear that, if Dr. Vaillancourt worked according to the normal work pattern, she would not be entitled to the premium rate under clause B2.07. Since a shift schedule is involved, however, as the parties acknowledge, it is governed by clause B2. The question, now, is to determine whether the changes that were made pertain to the shift schedule, as Dr. Vaillancourt claims, or to her individual work schedule, as the employer claims.

[34]   The Dictionnaire canadien des relations du travail, second edition (1986), by Gérard Dion, defines the term "horaire individuel" [individual schedule] as:

[Translation]

the work schedule fixed by the employer for a particular worker that is determined by considering the needs of the establishment, the worker's wishes or both. Individual schedules are not attached to a flexible work pattern; they are found in any work pattern.

[Emphasis added]

[35]   In terms of shift schedules, it is necessary to turn to the definition in the collective agreement, that is, clause B2.02:

In this Article, "shift schedule" means the arrangement of shifts over a period of time not exceeding two (2) consecutive months and for a minimum period of twenty-eight (28) consecutive days.

[Emphasis added]

[36]   Mr. Dion's (supra) definition of "shift schedule" reads as follows:

[Translation]

1. Arrangement of hours and work periods in which the work is divided into two or three successive time periods during a twenty-four-hour day.

2. Board on which the names of the workers and the shifts to which they are assigned are posted in advance.

[37]   On June 6, 2002, there was a change in Dr. Vaillancourt's hours of work and a change in the establishment where she was to work. On June 19, 2002, the change was solely in her hours of work. Apart from these changes, her work schedule for the rest of the week did not change. On June 7, 2002, and on June 20, 2002, she returned to her regular schedule. Her shift schedule, that is, for a given period, a "[...] minimum period of twenty-eight (28) consecutive days [...]" (clause B2.02), or as arranged by the employer in its entirety (time and establishments), was not, therefore, changed.

[38]   There was a temporary change in her individual work schedule, which is a shift schedule. Does this mean that clause B2.07 applies?

[39]   As Dr. Vaillancourt indicated, the decision in Turcotte (supra) recalls the purpose of a provision like clause B2.07, that is, "[...] to give reasonable advance notice to an employee whose work schedule is changed." The adjudicator noted that the expression "shift schedule" used in this provision, which could be confusing, as in this case:

[...] concerns the arrangement of shifts for a group of employees working shifts and not the resulting individual schedule of each employee. [...]

[40]   Spears (supra) dismissed a grievance where the employer's counsel used arguments similar to those in the present case:

[...] All previous and subsequent shifts remained the same. The grievor merely came into work on a day not scheduled for him and was paid the appropriate premium for having done so. To become entitled to the shift change premium the change that took place must have been to the grievor's regularly scheduled hours and not a change resulting in extra hours for him. [...]

The adjudicator found that, in the circumstances of the case, there was no change in the employee's shift schedule. There was no replacement of one scheduled shift by another shift, the employee having worked an extra day that was not on his regular schedule.

[41]   Dr. Vaillancourt's argument in this case concerns the last point: since a shift was replaced on her work schedule on June 6 and June 19, 2002, she should be entitled to the premium rate. I do not agree with this conclusion.

[42]   The parties admitted that the two changes in schedule were different. More specifically, the question is: were the changes in the time and place of work on June 6, 2002, and only in the time on June 19, 2002, changes in Dr. Vaillancourt's shift schedule? A search of Canadian Labour Arbitration by Messrs. Brown and Beatty is enlightening in this regard. It contains a reference to Re Int'l Chemical Workers, Local 721, and Brockville Chemicals Ltd. (1966) 16 L.A.C. 378, where it was decided:

[...] Held, unanimously, the provision for payment at time-and-one-half did not apply in these circumstances. There was no new shift established, but merely a temporary and slight alteration of the times of the employee's existing shift. [...]

This is consistent with Evangelho (supra).

[43]   In this sense, taking into account the fact that Dr. Vaillancourt's individual shift schedule was not changed for the other days of that period, there was no reason to pay the premium rate. The changes made on June 6, 2002, although they were more significant in that they also involved a change of worksite, are just as temporary as the change of June 9, 2002.

[44]   As emphasized by Dr. Vaillancourt's representative, the magnitude of the change, whether large or small, would in fact have no consequences for the application of this kind of provision. What the change relates to, on the other hand, is of crucial importance. For example, if a 7:00 a.m. to 3:30 p.m. schedule were changed to start at 6:30 a.m. and end at 3:00 p.m. for the remainder of a period of at least 28 days but not longer than two consecutive months (clause B2.02), or changed to a night shift for the same period, payment at the premium rate would be required if the advance notice were less than seven days.

[45]   The purpose of clause B2.07 is to induce the employer to notify the employee at least seven days in advance of a change in his shift schedule. It goes without saying that the employee is entitled to such advance notice so he can reorganize his private and family life, which is necessarily affected by shift work. The mechanism of clause B2.06 is there for the same purpose (it also provides for seven days) and this is true, in fact, of all the provisions in clause B2. There is also recognition of the special case of shift workers and the impact that organizing their work in this manner can have on them personally.

[46]   A temporary change in the schedule of an employee working shifts is a change to his or her individual work schedule and I do not see a reason to apply the premium rate in this case. Clause B2.07 is clear; there must be a change in the shift schedule. The collective agreement must be read as a whole and must be applied to give the intended effect to the provisions that have been agreed upon.

[47]   In this case, the grievor is in the same situation as an employee working a regular work pattern who is asked to change his or her hours or worksite on a particular day. If the collective agreement provides for advance notice in such a case, then that is the provision that must be applied. There is no such provision in clause B2; I cannot add to the collective agreement (Doyon (supra)).

[48]   For these reasons, taking into account the parties' admissions of the facts, the documents filed on consent and the wording of the collective agreement, the grievance is dismissed.

Sylvie Matteau,
Deputy Chairperson

OTTAWA, May 28, 2004

P.S.S.R.B. Translation