FPSLREB Decisions

[1]    This is a decision about whether the employer is required to allocate work in vacant posts to employees that are away on alternate statutory holidays. Alternatively, can the employer allocate the work to part-time staff already on shift? It involves Article 26 of the collective agreement between the parties and, in particular, clause 26.10.

[2]    The parties agree that the collective agreement expiring on May 31, 2002 (Code 601, 651), Agreement Between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, contains the provisions that are applicable to these grievances.

Procedural Issues

[3]    This decision applies directly to four grievances. They are:

166-02-32593	Cianni, Angela
166-02-32597	MacNeal, Sonny Raymond
166-02-32621	Alamwala, Kurdip Singh
166-02-32623	DeMeulenaere, Maurice Archibald

[4]    Eight grievances were also added during the hearing since they are about the same issue as the original group. These are to be continued at a later date and they are:

166-02-32626	Hurley, Martin
166-02-32627	Mailhot, Joseph Rolland Claude
166-02-32628	Numainville, Pierre
166-02-32629	Noorani, Tricia
166-02-32630	Stulp, Elaine
166-02-32631	Zwarych, Ron
166-02-32662	Hopkins, Joy
166-02-32673	Foreman, Jason

[5]    During the course of the hearing a number of grievances were withdrawn. They are:

Background

[6]    The employer operates correctional facilities across Canada. The grievances in this case arose from two of those facilities in British Columbia, Matsqui and Mountain. The grievors are Correction Officers. They provide dynamic security in a variety of situations.

[7]    Correction Officers work shifts, so statutory holidays can fall on a workday. Article 26 (reproduced below) provides that, when a statutory holiday coincides with an employee's day off, the holiday shall be moved to the first scheduled working day following the day off. An employee's schedule is determined by the supervisor after consideration of staff needs and availability. The assignment to an alternate or moved statutory holiday is called being "stated-off" or just "stated". For example, in 2003 Good Friday fell on April 18. For some staff this was a day of rest, so their alternate holiday was April 24.

[8]    Clause 26.10 requires the employer to make every reasonable effort to allocate, on an equitable basis, work in vacant posts on designated paid holidays to those employees on leave with pay who are readily available and qualified. This is subject to operational requirements.

[9]    It is also important to understand the staffing method used by the employer. Shifts can be 8, 12 and even 24 hours in length. For security reasons, it is important that there be a full complement of staff. Since there are always vacations, leaves and other absences such as illness, a formula based on 1.77 is used. In a theoretical sense, staffing is planned to be 1.77 more than actually required. I did not hear any evidence about there being over-staffing and, as will be seen, there are times when additional staff are needed. Staff includes primarily full-time employees, but some are part-time employees.

[10]    The situation that gave rise to the grievances in this case occurred around Good Friday in 2003. The grievors were on an alternate statutory holiday, pursuant to Article 26, because the regular statutory holiday coincided with their day of rest. Instead of calling the grievors in to work a full shift (some were actually called in for less than a full shift), pursuant to clause 26.10, the employer used part-time staff on shift to fill vacancies. The employer also called in some staff other than the grievors to fill some vacancies, but they acknowledge this was an error.

[11]    The grievors challenged the fact that they were not called in for work and relied on clause 26.10.

Collective Agreement Provisions

[12]    Article 26 relates to "Designated Paid Holidays". The relevant parts of that article are as follows:

26.01	Subject to clause 26.02 the following days shall be designated paid holidays for employees:
...
(b)	Good Friday
26.02	...
26.03	When a day designated as a holiday under clause 26.01 coincides with an employee's day of rest, the holiday shall be moved to the first (1st) scheduled working day following the employee's day of rest. When a day that is a designated holiday is so moved to a day on which the employee is on leave with pay, that day shall count as a holiday and not as a day of leave.
...
26.04	When a day designated as a holiday for an employee is moved to another day under the provisions of clause 26.03: work performed by an employee on the day from which the holiday was moved shall be considered as worked performed on a day of rest, and (b) work performed by an employee on the day from which the holiday was moved shall be considered as work performed on a holiday.
26.05	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 regular daily scheduled hours of work as specified in Article 21 of this collective agreement 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.
26.06	...
26.07	...
26.08	Where a day that is a designated holiday for an employee coincides with a day of leave with pay, that day shall count as a holiday and not as a day of leave.
26.09	...
26.10	Subject to the operational requirements of the service the Employer shall make every reasonable effort to allocate, on an equitable basis, work in vacant posts on designated paid holidays to those employees on leave with pay who are readily available and qualified.

[13]    The parties agreed that "worked performed" in subclause 26.04(a) is an error and it should be read as "work performed".

The Grievors

[14]    The facts in this case are not in dispute.

[15]    Ms. Angela Cianni testified that she was a CX-1 at the time of her grievance. She was on an alternate statutory holiday on April 24, 2003 because that was her first day back to work after the Good Friday holiday on April 18, 2003. She would have worked from 0650 to 1920 hours if she had not been off on April 24, 2003. Ms. Cianni was readily available and qualified to work for any vacant posts at a premium rate of pay.

[16]    On April 24, 2003, there were three part-time employees scheduled to work for periods between 0650 and 1920 hours. Ms. Cianni grieves that the part-time employees were used to fill vacant posts on the shift. Her position is that she should have been called in to work, pursuant to clause 26.10.

[17]    Mr. Sonny MacNeal testified that he was a CX-1 who was on alternate holiday on April 23, 2003, for the Good Friday that fell on April 18, 2003. He was readily available and qualified to work for any vacant posts. He would have worked from 1900 to 0700 hours if he had not been on his alternate holiday. Mr. MacNeal was contacted to work 4 hours on April 23, 2004 and he worked those hours. He grieves that part-time employees on shift were used to fill other vacant posts. His position is that he should have been called in to work a full shift of 12 hours, pursuant to clause 26.10.

[18]    Mr. Kurdip Singh Alamwala's situation was agreed to by the parties and it was entered as an admission. He was on alternate holiday on April 24, 2003, for the Good Friday that fell on April 18, 2003. He was readily available and qualified to work the shift and he was actually called in to work 8 hours that day. If he had not been on alternate holiday, he would have worked 12 hours as a regular shift. He grieves that he should have been given four more hours of work by the employer instead of assigning the work in vacant posts to part-time employees on shift.

[19]    Mr. Maurice Archibald DeMeulenaere was a CX-1 and he was on alternate holiday on April 19, 2003, for Good Friday on the previous day. Part-time employees, some of whom were spares working on April 19, 2003, were used to fill vacancies. Mr. DeMeulenaere grieves this. He says he was readily available and qualified and he should have been called in to work in vacant posts, pursuant to clause 26.10.

[20]    Finally, there was evidence that two employees were called in for 4 hours each of over-time on April 24, 2003 to cover vacant posts. One of these was a part-time employee. The employer concedes that these call-ins were an error.

Arguments of Parties

[21]    The grievors submit that their case is a straightforward application of clause 26.10. Employees who are on alternate holidays should be given the opportunity to work at vacant posts as long as they are readily qualified and available. In particular, it is submitted that they should be given preference over part-time employees on shift. The decision of Adjudicator Guindon in Gérard Saindon, et al. v. Treasury Board (Solicitor General - Correctional Service), 2002 PSSRB 73, is relied on.

[22]    The employer also submits that this is a straightforward case, but one of management rights. The employer is entitled to, for example, schedule work as long as it does not conflict with the collective agreement. The decision of Re Petro-Canada Inc. and Energy & Cheminal Workers' Union, Loc. 593 (1988), 1 L.A.C. (4th) 404 (Mitchnick) is relied on.

Decision and Reasons

[23]    The general issue in this case can be fairly described as: in what circumstances are employees who are on alternate statutory holidays entitled to be called in at a premium rate of pay to work in vacant posts? As above, the grievors take a broader view of these circumstances than the employer.

[24]    As described above, the employer acknowledges the errors of bringing in two people on overtime on April 24, 2003. This assists in narrowing the issue in this case. It is accepted that, when there are vacant posts, staff that are on alternate holidays have a priority for the work. This is as a result of clause 26.10. Further, applying the Saindon decision (supra) means that these same staff have a particular priority over part-time employees who are not on shift. The employer accepts that decision, although there were errors applying it.

[25]    The point of departure between the grievors and the employer relates to the employer's ability to use part-time employees on shift to fill vacancies. That is, is the employer required to call in staff that are on alternate holidays to fill vacant posts rather than use part-time employees already on shift? This is the more specific issue to be determined in this case.

[26]    Is there authority for giving priority to full-time employees who are on alternate holidays over part-time employees on shift for vacant posts? The onus is on the grievors to establish that their situation comes within the language of the collective agreement.

[27]    The grievors rely on clause 26.10. For convenience, I set out that provision again:

26.10	Subject to the operational requirements of the service the Employer shall make every reasonable effort to allocate, on an equitable basis, work in vacant posts on designated paid holidays to those employees on leave with pay who are readily available and qualified.

[28]    I note that the collective agreement specifically provides for part-time employees and the conditions of their employment are in Article 35. On this basis, it is clear that the parties have agreed that there can be part-time employees at work.

[29]    It is also significant that the language of clause 26.10 itself contains some important qualifiers.

[30]    The employer is not required to allocate work in vacant posts in every case. Instead it must "make every reasonable effort". Reasonableness is a high standard for the employer to meet and there is also the requirement that allocation of work must be done on an "equitable basis". However, the language does not create an absolute right to work in vacant posts for employees on leave with pay who are readily available and qualified.

[31]    Further, the allocation of work in vacant posts is subject to "the operational requirements of the service". This language creates some discretion for the employer to consider operational requirements when deciding to allocate work in vacant posts. Again, this is not a licence for the employer to do what it wants since there is also language requiring equitable and reasonable consideration when filling vacant posts. But it is another qualifier on the grievors' right to allocation of work in vacant posts when they are on alternate holidays.

[32]    I did not hear any evidence that the language was applied in any way that was different from the above interpretations.

[33]    I conclude that the agreement as a whole does not support the grievors' interpretation of clause 26.10. It contemplates the use of part-time employees and there is no indication that they should be treated any differently when it comes to filling vacant posts within the same shift. Similarly, Article 21 describes hours of work and overtime but it does not distinguish between part-time and full-time staff in a way that supports the grievors' position.

[34]    With regard to clause 26.10 itself, it seems to me that it is a reasonable operational requirement for the employer to allocate work from a vacant post to the staff already on shift. This would include part-time staff on shift and it would take place before calling people who are on alternate holidays and available at a premium rate. That approach is clearly part of the staffing formula of 1.77, and moving staff to cover vacant posts within a shift appears to be well established. In this regard, I did not hear any evidence of a dispute when full-time staff on shift are used to fill vacant posts. Further, it would not be operationally sound for part-time staff that are paid regular pay not to be used or minimally used while staff on alternate holidays are brought in at a premium rate. I do not rely on cost alone to determine operational requirements but it is corroborative of the other factors.

[35]    As above, I accept that the grievors were on "leave with pay" while they were on alternate holidays, as the term is used in clause 26.10. However, that is compliance with only one of the conditions of that provision. In my view it would not be consistent with the rest of the language of clause 26.10 to conclude that staff on alternate holidays have a priority to be called back to work in vacant posts when there are people already on shift available and qualified to do the work. The Saindon decision (supra) supports the proposition that staff on alternate holidays have to be given priority over part-time staff who are not working, as stated in paragraphs 33 and 34. It does not go further than that and give staff on alternate holidays priority over part-time staff already on shift.

[36]    For all of these reasons, I deny the grievances of Angela Cianni, Sonny Raymond MacNeal, Kurdip Singh Alamwala and Maurice Archibald DeMeulenaere with regard to their interpretation of the collective agreement.

[37]    As for the error of bringing in staff to work 2 four-hour shifts of overtime on April 24, 2003, there remains an issue of who should have been called in to work those hours. The grievors submit that the work should go to employees who were on alternate holidays and who grieved. The employer accepts that the pay for the work should go to employees who are on alternate holidays. This matter developed during the course of the hearing and argument so the parties did not have an opportunity to consider it fully. I leave the payment for this work to the parties for discussion. In the event that they are unable to resolve the matter, I retain jurisdiction to decide it.

John Steeves,
Board Member

BURNABY, July 28, 2004