Date: 20241213

Files: 567-32-42339 and 42506

 

Citation: 2024 FPSLREB 174

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Public Service alliance of canada

Bargaining Agent

 

and

 

Canadian Food Inspection Agency

 

Employer

Indexed as

Public Service Alliance of Canada v. Canadian Food Inspection Agency

In the matter of group grievances referred to adjudication

Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Bargaining Agent: Aaron Lemkow, Public Service Alliance of Canada

For the Employer: Larissa Volinets Schieven, counsel

Decided on the basis of written submissions,
filed August 16 and September 13 and 19, 2024.

REASONS FOR DECISION

I. Overview

[1] These are two group grievances filed by the Public Service Alliance of Canada (PSAC) on behalf of employees working as inspectors at two abattoirs in Alberta. The issue in both grievances is whether the employees are entitled to be paid a weekend premium when they work shifts on Saturday at those two abattoirs.

[2] In its reply submissions, PSAC conceded that an employee must work more than one shift on the same weekend to be eligible for the weekend premium. PSAC submits that afternoon and night shifts that start on Friday are weekend shifts because those shifts end early Saturday morning. I reject that argument. PSAC admits that a weekend shift is one that occurs on a Saturday or Sunday. When a shift overlaps two days, the collective agreement deems it to have occurred on the day with the majority of hours. For almost all the employees, this means that the shifts that start on Friday are deemed to occur on Friday, which is not a weekend. This means that they work only one shift on a weekend and are not entitled to the shift premium.

[3] There is an exception for employees who work one late-night shift at one of the abattoirs. Since that shift starts at 22:15 and ends at 06:15, the shift that starts on Friday is deemed to occur on Saturday, and the shift that starts on Saturday is deemed to occur on Sunday. Therefore, that one shift is entitled to the weekend premium.

[4] Therefore, I have denied the grievance that does not involve that late-night shift and have allowed the other grievance in part. My detailed reasons follow.

II. Procedural history

[5] Since these two grievances were filed before 2014, I need to set out the basis of my jurisdiction to hear them.

[6] On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (PSLREB) to replace the former Public Service Labour Relations Board (PSLRB) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40; EAP2) also came into force (SI/2014-84). Under s. 393 of the EAP2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continued under and in conformity with the PSLRA as ss. 365 to 470 of the EAP2 amended it.

[7] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the PSLREBA and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”, which in this decision also refers to any of its predecessors), the Federal Public Sector Labour Relations and Employment Board Act (FPSLREBA), and the Federal Public Sector Labour Relations Act.

[8] The Board held case management conferences with the parties about these two grievances. During those conferences, the Board suggested that these grievances be heard in writing. The Board is empowered to decide a grievance on the basis of written submissions because of its power to decide “… any matter before it without holding an oral hearing”, in accordance with s. 22 of the FPSLREBA; see also Walcott v. Public Service Alliance of Canada, 2024 FCA 68. Neither party objected to proceeding in writing, and so they were heard that way.

[9] The parties prepared an agreed statement of facts and provided the Board with documents to illustrate those facts. They filed written submissions. I have made this decision on the basis of that agreed statement of facts, the accompanying documents, and the submissions filed by the parties. The parties cite a number of authorities with their submissions. I have referred to or quoted from the authorities that I found most relevant; however, I read them all, even if I do not cite them in this decision.

III. Factual background

[10] These two group grievances are about employees of the Canadian Food Inspection Agency working in two abattoirs or meat processing plants in Alberta called Establishment 093 and Establishment 038. The employees are all classified at the EG-03 group and level and their terms and conditions of employment were set out in the collective agreement between the employer and PSAC (which expired on December 31, 2011; “the collective agreement”). The employees are all shift workers at those establishments. Their shift schedules and working conditions were a little bit different at each facility, so I will provide the factual background for each establishment separately.

A. Establishment 093 (grievance in Board file no. 567-32-42339)

[11] The employees working at Establishment 093 had three roles: Slaughterhouse Inspectors, Compliance Verification System (CVS) Inspectors, and Export Inspectors. Their precise duties are unimportant for the purposes of deciding their grievance. However, they worked slightly different shifts.

[12] Slaughterhouse Inspectors worked from Monday to Friday on a day shift (running from 07:25 to 16:20) or a night shift (running from 16:35 to 01:30 the following day). Some worked 7.5 hours during that period (so that if they started at 07:25, they worked only until 15:35, with a half-hour lunch), and others worked an additional 45 minutes of overtime. Also, there were three post-mortem Slaughterhouse Inspectors who started at 08:10 or 17:20 (ending at 01:30) instead of the earlier start time for others.

[13] CVS Inspectors worked Monday to Friday on a day shift (running from 07:25 to 15:35) or a night shift (running from 16:35 to 00:45 the following day).

[14] Export Inspectors worked Monday to Friday on a day shift (running from 07:00 to 17:00) or a night shift (running from 17:00 to 03:00 the following day).

[15] These employees at Establishment 093 toggled between day and night shifts every 2 weeks. They could volunteer to work all night shifts (every 6 to 12 months), meaning that others could work more day shifts.

[16] Establishment 093 required employees to work some Saturdays, typically every week from May to September and every second week from October to April. The employer posted a Saturday signup sheet in the workplace every week when Saturday overtime was required. Based on the signups, the employer would communicate the Saturday schedule by Thursday of that week.

[17] The Saturday hours of work followed the same schedule as the Monday to Friday shifts, except that there was no need for a dedicated CVS Inspector and therefore no CVS Inspector shift. Normally, 12 employees worked each Saturday. Sometimes, the employer had to call employees from other establishments to fill this overtime work, but mostly it relied on the employees already working at Establishment 093.

B. Establishment 038 (grievance in Board file no. 567-32-42506)

[18] There were three shift windows at Establishment 038:

· “A Shift”: 06:15 to 15:45;

 

· “B Shift”: 14:15 to 01:00 the following day; and

 

· “C Shift”: 22:15 to 06:15 the following day (called the “graveyard shift”, which seems a little on the nose for post-mortem inspectors working at an abattoir).

 

[19] Employees worked eight hours each day within these three shift windows. For example, an employee on A Shift could start at 06:15, 06:45, or 07:45 and finish eight hours later. The same applied to B Shift. Employees in C Shift all worked exactly from 22:15 to 06:15.

[20] Employees rotated between A Shift and B Shift in 2-week intervals. The employer scheduled a C Shift only when the need arose, and an employee could expect to work a C Shift once every 40 weeks or so. There was only 1 employee on C Shift at a time, and they focussed on export-related duties.

[21] Saturday work was a little bit more regulated than it was at the other establishment. Employees were asked each week whether they wanted to work on Saturday. Also, each employee was assigned a position on a list each week, which would change each week (i.e., if you were #1 on week 1, you were #7 on week 2, #13 on week 3, and so on). The employer would then pick Saturday workers from the list of volunteers, starting with employees with the highest position each week. For example, if employee #1 wanted overtime on Saturday they would be picked; if they did not, employee #2 was picked, and so on. If there were not enough volunteers, the employer would require employees to work overtime and would not bring in employees from other locations.

[22] The time worked on Saturdays corresponded to the three regular shifts for that establishment (i.e., somebody on the A Shift worked on Saturday between 06:15 and 15:45).

[23] Like the other establishment, Saturday overtime was typically requested every week between May and September and every other week from October to April. There were 3 or 4 fewer employees working each shift on Saturdays than during weekdays (so normally, 13 employees worked A or B Shift on Saturday, instead of 16 or 17 during the week).

IV. Analysis

A. Collective agreement interpretation

[24] Interpreting a collective agreement is a contextual exercise. To quote from Ewaniuk v. Treasury Board (Department of Citizenship and Immigration), 2020 FPSLREB 96 at para. 45, the words in a collective agreement “… must be read in their entire context, in their grammatical and ordinary sense, and harmoniously with the scheme of the agreement, its object, and the parties’ intention.”

[25] In this case, the parties placed most of their emphasis on the grammatical and ordinary meaning of the words in the collective agreement. The surrounding context comprised what I refer to as “textual context” (meaning other provisions of the collective agreement), as well as earlier Board decisions interpreting similar provisions in other collective agreements. I have followed the parties’ lead by also focussing on the text of the articles at issue in light of the text used elsewhere in the collective agreement and previous interpretations by the Board.

[26] In addition, the employer submits that a benefit that has a monetary cost must be clearly and expressly granted under the collective agreement. I did not find it necessary to resort to this or any other presumption or canon of interpretation to resolve this case. The text, textual context, and case law were sufficient.

B. The collective agreement clause at issue

[27] This grievance is about weekend premiums. Both parties also refer to the shift premium clause in their argument, so I will set out both clauses:

…	[…]
This Article does not apply to employees on day work, covered by clauses 24.04 or GL/GS 24.04.	Le présent article ne s’applique pas aux employé-e-s qui travaillent de jour et qui sont couverts par les paragraphes 24.04 ou GL/GS 24.04.
26.01 Shift Premium	26.01 Prime de poste
An employee working on shifts, half or more of the hours of which are regularly scheduled between four (4) p.m. and eight (8) a.m., will receive a shift premium of two dollars ($2.00) per hour for all hours worked, including overtime hours, between four (4) p.m. and eight (8) a.m. The shift premium will not be paid for hours worked between eight (8) a.m. and four (4) p.m.	L’employé-e qui travaille par postes, dont la moitié ou plus des heures sont habituellement prévues entre 16 h 00 et 8 h 00, touche une prime de poste de deux (2,00 $) dollars l’heure pour toutes les heures de travail, y compris les heures supplémentaires, effectuées entre 16 h 00 et 8 h 00. La prime de poste n’est pas payée pour les heures de travail effectuées entre 8 h 00 et 16 h 00.
26.02 Weekend Premium	26.02 Prime de fin de semaine
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.	L’employé-e qui travaille par postes, la fin de semaine, reçoit une prime supplémentaire de deux (2.00 $) dollars l’heure pour toutes les heures de travail, y compris les heures supplémentaires, effectuées le samedi et/ou le dimanche
…	[…]

 

C. Employees who work at Establishment 093 and who work the A and B shifts at Establishment 038 are not entitled to the weekend premium

[28] PSAC’s original position was that all the work performed on Saturday was a shift during a weekend, thus entitling an employee who worked on a Saturday to the weekend premium for those hours worked. However, clause 26.02 uses the plural “shifts” instead of the singular “shift”. In response to the employer’s submissions about “shifts” being plural which requires that an employee work more than one weekend shift on the same weekend to earn the weekend premium, PSAC made this explicit concession: “The Grievors now concede that one must work multiple shifts on the same weekend to receive the weekend premium.” PSAC also conceded that a “weekend” is a Saturday and Sunday (and not a Friday evening or early Monday morning).

[29] PSAC argues that an employee who works past midnight on Friday is working a shift “during a weekend” because their shift ends on Saturday morning. PSAC argues that this means that at Establishment 093, the employees who work the night shift on Fridays are eligible for the weekend premium on Saturday, and at Establishment 038, the employees working the B and C shifts are eligible.

[30] I disagree that the fact that a shift ends after midnight on Friday means that the shift occurs “during a weekend”.

[31] Clause 24.08 of the collective agreement reads as follows:

24.08 When an employee’s scheduled shift does not commence and end on the same day, such shift shall be considered for all purposes to have been entirely worked:	24.08 Lorsque le poste d’horaire d’un-e employé-e ne commence ni ne finit le même jour, un tel poste est considéré à toutes fins avoir été intégralement effectué :
(a) on the day it commenced where half or more of the hours worked fall on that day;	a) le jour ou il a commencé, lorsque la moitié ou plus des heures effectuées tombent ce jour-là,
or	ou
(b) on the day it terminates where more than half of the hours worked fall on that day.	b) le jour ou il finit, lorsque plus de la moitié des heures effectuées tombent ce jour-là.
…	[…]

 

[32] All the employees at Establishment 098 work more than half the hours of their shift on Friday. Therefore, even though the shift ends on Saturday, it is considered “for all purposes” to have been entirely worked on Friday. This means that it is not a shift during a weekend.

[33] The same applies to B Shift at Establishment 038. That shift ends at 01:00, meaning that employees work at most one hour on Saturday, meaning that it is considered “for all purposes” to have been worked on Friday.

[34] However, more than half the C Shift at Establishment 038 that starts late Friday night occurs on Saturday. Therefore, it is “considered for all purposes” to occur on Saturday. This means that it occurs “during” a weekend.

[35] For these reasons, I deny the group grievance for all employees at Establishment 098 and all employees working the A and B Shifts at Establishment 038.

[36] I will now consider whether employees on the C Shift who work shifts starting on Friday and Saturday are entitled to the weekend premium.

D. Employees who work the C Shift at Establishment 038 are entitled to the weekend premium when they work on a weekend

[37] For ease of reference, I repeat the wording of clause 26.02 of the collective agreement: “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.”

[38] To decide this case, it is helpful to break down clause 26.02 into its constituent components and then decide whether the grievors meet those components.

[39] First, article 26 does not apply to employees on day work. The employer admits that the grievors are shift workers (as opposed to day workers), so they meet this requirement.

[40] Second, the shift worker must have more than one shift on the weekend (“shifts”). As discussed, PSAC admits to this requirement, which led to my denial of the grievance relating to all the grievors except those working on C Shift at Establishment 038.

[41] Third, the shift worker must be “working on shifts”. The Board explained that term in Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112. The Board wrote in Chafe as follows:

…

54 First, article 27 is clearly limited in scope. The shift and weekend premiums are not available to all employees for any work performed by them. Rather, they are available only to employees “working on shifts.” Hence the bargaining agent must establish that the grievors (who were clearly employees) were “working on shifts” at the relevant time.

…

61 The question here is what article 27 of the collective agreement means by “working on shifts.” Neither “shift” nor “shift work” nor “working on shifts” are defined terms in the collective agreement. I must consider then whether there is an ordinary, generally accepted understanding or definition of what is meant by “shift work” (that is, “working on shifts”). In this regard I note that the Canadian Oxford Dictionary (Toronto, 1998) defines “shift work” as “work conducted in often variable periods independent of a standard work day, usually at night (tired after a month of shift work).” The website for the Sloan Work and Family Research Network of Boston College provides the following definitions of “shift work”:

Shift work refers to a job schedule in which employees work hours other than the standard hours of 8 a.m. to 5 p.m. or a schedule other than the standard workweek - Monday through Friday in the United States (Grosswald, 2004, p. 414).

In general, the term ‘shift work’ is quite vague and includes any organization of working hours that differ from the traditional diurnal work period; sometimes it is a (sic) synonymous of irregular or odd working hours (Costa, 2003, p. 264).

¼ most studies on shiftwork classify shift workers as anyone working outside regular daytime hours (i.e. between approximately 7 a.m. and 6 p.m., Monday through Friday). Under these definitions, shift workers include all people working evening shift, night shift, rotating shifts, split shifts, or irregular or on-call schedules both during the week and on weekends (Institute for Work & Health, n.d.).

Shiftwork is defined as work outside day hours, Monday to Friday. It includes weekend work, and jobs which start substantially before 7 am and finish at 7 p.m. or later (Wallace, n.d.)

The standard workday unfolds during an 8-5 timeframe. We consider shift workers to be individuals who work nonstandard hours.” (Root, 2004).

62 Similarly the website dictionary.com provides the following definition of “shift:”

a person’s scheduled period of work, esp. the portion of the day scheduled as a day’s work when a shop, service, office, or industry operates continuously during both the day and night: She prefers the morning shift.

63 In my opinion all of these definitions describe a situation where normal operations during a 24-hour cycle are broken into two or three work periods, each period representing a full “day’s” work for an employee. A common example of such work would be found in hospitals, where nursing staff must be present 24-hours a day. Since no one can routinely work 24 hours per day, the 24-hour cycle is split into two 12-hour or three 8-hour “shifts.” Of course, not all work places operate on 24-hour cycles. Some operate on shorter cycles. But whatever the cycle, it is long enough that it cannot ordinarily and routinely be filled by one employee; it must be split into “shifts,” with each shift being filled by a (normally) different employee. Hence to work “on shift” means that there would be at least two, if not three, work periods during the 24- hour cycle that would be filled by two (or three, as the case may be) employees.

64 What this means is that article 27 and the phrase “working on shift” apply to situations where there are at least two regular “shifts” in a given 24-hour cycle. Support for this conclusion may be found in the fact that clause 27.01 states that the shift premium is not paid for hours worked between 08:00 and 16:00 (which is the “normal” work day), but will be paid for all hours worked between 16:00 and 08:00. In other words, clause 27.01 contemplates the existence of at least two periods of work during a 24-hour cycle.

65 Similarly, the fact that both clauses 27.01 and 27.02 state that a premium is added to overtime means, in my view, that “working on shift” is different from a situation in which an employee works overtime beyond his or her normal work day. In other words, a “day worker” who works in an office which normally has only one work period (the normal work day) does not become a “shift worker” merely because he or she performs some overtime.

…

[Emphasis added]

[Sic throughout]

 

[42] I acknowledge that the Board dismissed the grievance in that case on the basis that the grievors were not shift workers, so its definition of “working on shifts” was technically not needed to decide that case; however, the Board was clearly trying to assist bargaining agents and employers with the meaning of a common phrase in collective agreements, and I have chosen to respect that choice. The Board also followed Chafe in Keen v. Treasury Board (Department of Fisheries and Oceans), 2019 FPSLREB 81 at para. 67.

[43] The employees working the C Shift at Establishment 038 meet the Chafe test for “working on shifts”. The work at Establishment 038 is divided into 3 regular shifts in a 24-hour period (A, B, and C Shifts respectively). This is just as true on weekends as for Mondays through Fridays. Therefore, employees on the C Shift are “working on shifts” on a weekend.

[44] The employer has two main submissions for why these employees are not “working on shifts during a weekend”: that the shifts must be regularly scheduled, and that the phrase must be read in context with “including overtime hours”.

[45] On the first point, clause 26.01 (the shift premium) states that an employee is eligible for the premium if they are “… working on shifts, half or more of the hours of which are regularly scheduled between four (4) p.m. and eight (8) a.m. …” [emphasis added]. The employer submits that the phrase “regularly scheduled” applies in clause 26.02 as well, even though it is not repeated there. The employer points out that the Board came to a similar conclusion in Létourneau v. Canada Customs and Revenue Agency, 2003 PSSRB 81, in an identically worded collective agreement, stating, at paragraph 38, “Although the words ‘regularly scheduled’ in clause 27.01 are not repeated in paragraph 27.02(a), this has no impact on the interpretation of clause 27.01 that I have accepted.”

[46] PSAC submits that this would violate the principle of expressio unius, exclusio alterius (to express one thing is to exclude the other). The parties used the term “regularly scheduled” in clause 26.01; had they intended it to apply in clause 26.02 as well, they would have used the phrase again.

[47] PSAC also submits that in the alternative, even if the weekend shifts must be regularly scheduled, they are scheduled frequently enough and with enough predictability to be “regularly” scheduled. They rely on Bédard v. Treasury Board (Canadian Grain Commission), 2019 FPSLREB 76. In that case, the Board heard another grievance about a weekend premium. It concluded that the grievors working at grain terminals were entitled to the weekend premium. It pointed out at paragraph 44 that the weekend premium did not refer to regular hours of work or regular shifts. Nevertheless, the Board concluded that the weekend overtime hours were regularly scheduled, stating this:

…

[45] … From the evidence, there is no doubt that overtime is part of the Port of Vancouver’s regular hours of operation. According to Mr. Mann, his employees work 361 days a year. Also according to him, the weekend work hours which are assigned to members of the bargaining group, either to volunteers or employees directed by management, are distributed on the same rotation and on the same schedule as is used from Monday to Friday. Based on everything before me, I can conclude only that that is the regular weekend schedule.

…

 

[48] The employer tries to argue that Bédard was wrongly decided because it focussed on the word “shifts” instead of the phrase “working on shifts during a weekend”. However, even if true, this does not alter the Board’s assessment of what constitutes a regular shift. The employer also tries to distinguish Bédard on its facts: it was a 361-day-per-year operation with shifts every weekend. In reviewing Bédard, it was not the 361-day-per-year nature that made it regular but, instead, the fact that weekend work hours were assigned by management (which is true in this case) and were distributed using the same shift rotation as Monday to Friday (which is also true in this case).

[49] I have also concluded that the weekend C Shift is regular in the plain and ordinary sense of being common (over half of weekends require work) and predictable (in that someone is working the C Shift virtually every weekend during peak months and then every second weekend during non-peak months).

[50] I considered whether the fact that an employee works C Shift only once every 40 weeks or so makes it irregular for each individual employee. However, the parties’ agreed statement of facts confirms that the employer paid the shift premium for employees working the C Shift. If the parties consider the C Shift regular for the purposes of the shift premium despite it being worked only once every 40 weeks or so, it must be regular when worked once every 40 weekends or so as well. I reach this same conclusion despite there being some weekends without a C Shift; it is frequent and predictable enough to be “regular”.

[51] Therefore, if being “regular” is a requirement for constituting “shifts during a weekend”, then that requirement is met in this case. I leave for another case whether it is a requirement at all.

[52] To conclude this point, the employer also points out that clause 24.05(b) states that “[e]very reasonable effort shall be made by the Employer … to arrange shifts over a period of time not exceeding two (2) months and to post schedules at least seven (7) days in advance of the starting date of the new schedule.” The employer assigns the weekend work less than a week ahead of time; therefore, it reasons that this is an indication that the weekend work is not a shift (because if it were, it would give more notice of it). However, PSAC did not complain about receiving inadequate notice of working on a weekend, and I have nothing to indicate that the employer has not made “every reasonable effort” to provide more notice. Rather, I am left with the impression that it is constrained in the amount of notice that it can provide by the variable needs of the owners of Establishment 038 — if the owners give the employer short notice, it explains why employees receive short notice too. Finally, and perhaps most importantly, the fact that the employer may be breaching a second clause in the collective agreement is not a reason to interpret the first clause in a way to make sure it is complying with both.

[53] On the employer’s second point, it submits that the meaning of “shifts during a weekend” must be read in context with the phrase “including overtime hours”. The employer says that shift premiums and overtime serve different purposes: the first is to compensate for working during hours that most people enjoy as leisure, and the second is to compensate for working beyond normal hours. From this, the employer reasons, “By definition, overtime is not a shift.”

[54] I do not share the employer’s interpretation.

[55] The phrase “including overtime hours” is included within clauses 26.01 and 26.02 to expressly oust the presumption against pyramiding benefits. The employer admits as much at paragraph 51 of its submissions. It also cites Duval v. Treasury Board (Post Office Department), [1982] C.P.S.S.R.B. No. 178 (QL), for this proposition. The employer highlights that in that decision, the Board quoted from its earlier decision in Barnes v. Treasury Board (Ministry of Transport), PSSRB File Nos. 166-02-1828 and 1829 (19750602), in which it also explicitly adopted the employer’s explanation in that case that the phrase “including overtime hours” was inserted to make sure that an employee could be entitled to the shift premium and the overtime rates for the same time. In the Board’s words in Barnes, “… it simply is inserted to more clearly define the meaning the parties intended to ascribe to the phrase ‘all hours worked’.”

[56] I note that the Board pyramided overtime with a shift premium in Létourneau, at paragraph 24, stating this: “… the grievors are entitled to the shift premium for the overtime hours they worked following their evening shifts.” I also note that the employer pays both overtime (of 0.75 hours) and shift premiums to some Slaughterhouse Inspectors working the night shift at Establishment 093, showing that it acts contrary to its submission by paying overtime and shift premiums for the same 0.75 hours.

[57] By adding the phrase “including overtime hours” to clause 26.02, the parties expressly intended that time worked can be both overtime and a shift, even if they happen at the same time.

[58] For these reasons, I have concluded that the employees on the C Shift at Establishment 038 were “working on shifts during a weekend”.

E. No reduction of overtime pay

[59] In the alternative, the employer submits that if the employees were working shifts during a weekend, they were not also entitled to overtime; therefore, any order for the payment of weekend premiums should be reduced by the overtime paid.

[60] The employer cites Federal Government Dockyard Trades and Labour Council (East) v. Treasury Board (Department of National Defence - includes DRDC), 2015 PSLREB 25, and Cooke v. Treasury Board (Department of the Environment), 2021 FPSLREB 42, as two examples in which the Board made similar orders. In those cases, the Board concluded that the grievors were entitled to overtime pay, but the way in which it did so meant that they were not entitled to shift premiums or weekend pay; therefore, the Board ordered the payment of overtime minus any premiums already paid for that time. I agree with the employer that these cases demonstrate that the Board has the jurisdiction to make the sort of order that it seeks. However, the employer is not relying on those cases to demonstrate that I should make that order in this case, and I agree with PSAC that those two cases are factually very different from this one.

[61] I have already explained that the phrase “including overtime hours” is used in clause 26.02 specifically to permit pyramiding overtime and weekend premiums. The employer’s submissions do not explain how to overcome that express language.

[62] The employer relies on the definition of “overtime” and the meaning of “scheduled hours of work” for its position. The relevant provisions in the collective agreement read as follows:

…	[…]
“overtime” (heures supplémentaires) means:	« heures supplémentaires » (overtime) désigne :
(i) in the case of a full-time employee, authorized work in excess of the employee’s scheduled hours of work;	(i) dans le cas d’un-e employé-e à temps plein, le travail autorisé qu’il ou elle exécute en plus des heures de travail prévues à son horaire,
…	[…]
24.05 For employees who work on a rotating or irregular basis:	24.05 Dans le cas des employé-e-s qui travaillent par roulement ou de façon irrégulière :
(a) Normal hours of work shall be scheduled so that employees work:	a) La durée normale du travail est portée à l’horaire de manière que les employé-e-s travaillent :
(i) an average of thirty-seven decimal five (37.5) hours per week and an average of five (5) days per week;	(i) en moyenne trente-sept heures et demie (37,5) par semaine et en moyenne cinq (5) jours par semaine,
And	et
(ii) either seven decimal five (7.5) hours per day; or	(ii) soit sept heures et demie (7,5) par jour,
	soit
(iii) an average of seven decimal five (7.5) hours per day where so agreed between the Employer and the majority of the employees affected;	(iii) en moyenne sept heures et demie (7,5) par jour s’il a en été convenu entre l’Employeur et la majorité des employé-e-s concernés,
(iv) subject to the operational requirements of the service, an employee’s days of rest shall be consecutive and not less than two (2).	(iv) sous réserve des nécessité du service, les jours de repos de l’employé-e sont consécutifs et leur nombre n’est pas inférieur à deux (2).
…	[…]

 

[63] I disagree with the employer’s submission that if the work was a shift, it was not overtime. Overtime is paid for “… authorized work in excess of the employee’s scheduled hours of work …”. These employees’ scheduled hours of work are 37.5 hours each week, 7.5 hours each day. They are entitled to overtime when they work more than 37.5 hours in a week. So long as the C Shift on the weekend takes those employees over 37.5 hours that week, they are entitled to be paid overtime, in accordance with clause 27.01 of the collective agreement.

[64] The employer relies on three cases in support of its position, all of which are distinguishable. In each of Maessen v. Treasury Board (Department of National Defence), 2006 PSLRB 95, Public Service Alliance of Canada v. Treasury Board (Department of Fisheries and Oceans), 2023 FPSLREB 19 (“PSAC v. DFO”), and Keen, the grievors sought overtime pay for hours worked that were equal to or less than 37.5 or 40 hours in a week (depending on the overtime threshold in their collective agreements). The Board found in each case that overtime was not owing just because the grievors worked on a weekend (in Keen and PSAC v. DFO) or late at night (in Maessen). However, in each case, the grievors worked their normal number of hours in a week (either 37.5 hours or 40 hours). All the Board said in those cases was that overtime is paid for extra work, not work at unusual times.

[65] In fact, in Keen, the Board went on to say at paragraph 70 that “[s]hift premiums, as per article 27 of the collective agreement, still apply, of course, as well as overtime provisions for work that extends beyond a 7.5-hour workday.” I reach the same conclusion in this case. Weekend premiums apply for C Shift, as well as overtime provisions for work that extends beyond a 7.5-hour workday or a 37.5-hour workweek.

V. Remedy

[66] PSAC’s written submissions do not ask for any remedy aside from that I allow the grievances. The grievance form dealing with Establishment 038 asked “[t]o be paid weekend premium for all hours worked on Saturdays and/or Sundays $2.00/hour.” The employer also did not make any submissions about the appropriate remedy in the event that I allowed the grievances in full or in part.

[67] I am not prepared to make any decision about the appropriate remedy in this case without submissions from the parties. Therefore, I will simply declare that I allow the grievance relating to Establishment 038 in part. I will also order that the parties attempt to resolve the appropriate remedy for employees on the C Shift who are entitled to the weekend premium. Finally, I will remain seized of this grievance in case the parties are unable to resolve the issue of remedy, in which case they may inform the Board within 90 days, and I will solicit their submissions and render a decision on remedy.

[68] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[69] The grievance in Board file no. 567-32-42339 is denied.

[70] The grievance in Board file no. 567-32-42506 is allowed in part.

[71] The parties are ordered to attempt to resolve the appropriate remedy for employees working the C Shift at Establishment 038 within 90 days from the date of this decision.

[72] I remain seized of grievance 567-32-42506 for the sole purpose of resolving any dispute over the appropriate remedy for employees working the C Shift at Establishment 038. The parties are directed to advise the Board within 90 days from the date of this decision whether I need to make such a decision; otherwise, the Board will close its file.

December 13,2024.

Christopher Rootham,

a panel of the Federal Public Sector

Labour Relations and Employment Board

 

 

appendix

The grievors for Establishment 093:

 

Aileen J. Galvez

Ana Villanueva

Betty Jean MacKay

Camelia Bunda

Charles Linklater

Charlie Li

Cory Veno

Dale Marianicz

David Petran

Dewis Rector

Elizabeth Hladnik Braat

Fei Zhou

Harinderjeet Dhaliwal

Inamullah Ali

Jacoba Bangma

Katherine McLean

Kathryn Tarrant-Willis

Kevin Grimshire

Kevin Hui

Lindsay Easter

M.S. Mosher

Mahmud Hassan

Maryel Dacs

Mike Davies

Muhammad Younis

Nancy Simmons

Rajinder S. Sidhu

Robert Paynter

Robert Roddy

Rupinder Kaur

Trish Peters

Wayne McInnis

 

The grievors for Establishment 038:

 

Lori Sjodin

Michael Donnelly

Rick Armstrong