IN THE MATTER OF AN ARBITRATION
BETWEEN : CNCP TELECOMMUNICATIONS
AND : CANADIAN ASSOCIATION OF COMMUNICATIONS & ALLIED WORKERS
AND IN THE MATTER OF THE GRIEVANCE OF C.J. PETERS
BOARD OF ARBITRATION : Maureen K. Salman , chairman.
Guy Beaulieu ,union nominee. George J. Milley, company nominee.
FOR THE COMPANY: T. Keith billing, counsel
FOR THE UNION :Martin L. Levinson, counsel
The grievor in this case , C.J. Peters, claims that the company violated the collective agreement by denying him overtime pay for work on Boxing Day , which is a designated holyday under the collective agreement .
The facts in this matter , which were agreed to between the parties , are as follows: The grievors normally work five days a week , from Tuesday to saterday, and has Sunday and Monday as rest days . In accordance with his normal schedule , the grievor worked on Boxing Day , Saturday, december 26th , for which he was paid at straight time rates and Sunday , december 27th and Monday , december 28th , were rest days . Tuesday, december 30th was granted to the grievors as the Bxing Day holiday.
The union claimed that the grievor ought to have beeen paid at premium rates for working on Saturday, december 26th which was actually Boxing Day .The company claimed that since there was provision in the collective agreement for substituting another day for the Boxing Day holiday , the grievor ought not to be compensated at premium rates for working on Saturday ,december 26th ,which was actually Boxing Day .
The issue to be decided in this case is whether the grievor ought to have been paid premium rates for work performed on Saturday, december 26th .
In order to determine this issue , it is necessary to consider the following provisions :
"18.1 An employee who qualifies in accordance with Article 18.6 shall be granted a holiday with pay on each of the following general holidays:
All Provinces - New year’s Day
Newfoundland - Remembrance Day
New Brunswick-New Bruswick Day
Prince Edward- Easter Monday
Island Dominion Day
Quebec - Dominion Day
St.Jean baptiste Day (in substitution for remembrance Day)
- The day after that on which New Year’s Day is observed,exept when
New Year’s Day falls on a Friday, this holiday will be observed on the
following Monday .
Nova Scotia Alberta
Ontario British Colombia
Manitoba Northwest Territories
Civic Holyday(the first Monday (sic) in August)
Territory - Dominion Day
"18.3 When a general holiday falls on an employee’s rest day , such holiday shall be moved to the normal working day immediately following the employee’s rest day ."
"18.3 When any of the above holidays fall on Sunday or Saterday , the day observed by the federal government in respect of its employees as the holiday shall be recongnized ."
"18.6 In order to qualify for pay for any one of the holidays specified in article 18.1, an employee
(a) Must have been in the service of the company and available for duty for at least thirty (30) calendar days . This clause (a) does not apply to an employee who is required to work on the holiday;
(b) Must be available for duty on such holiday if it occurs on one of his work days excluding vacation days exept that this does not apply in respect of an employee who is laid off or suffring from a bona fide injury, or who is hospitalized on the holiday or who is in respeipt of , or who subsequently qualifies for , weekly sickness benifits because of illness on such holiday; a regularly assigned employee who is required to work on such general holiday shall be given an advance notice of four (4) calendar days,exept for unforeseen exigencies of the service, in which case he will be notified not later than the completion of his shift or tour of duty immediately preceding such holiday that his services will be required;
(c) Must be entitled to wages for at least twelve (12) shift or tours of duty during the thirty (30) calendar days immediately preceding the general holiday. This clause (c) does not apply to an employee who is required to work on the holiday."
"18.2 An employee who qualified under article 18.6 and who is required to workon a general holiday shall be paid , in addition to the pay provided in article 18.9 or 18.10, at a rate equal to one and a half (1 1/2) times his regular rate of wages for the actual hours worked by him on that holiday with a minimum of three (3) hoors for which three (3) hours (sic) service may be required but an employee called for a specific purpose shall not be required to perform routine work to make up such minimum time . When more than one shift is worked by an employee on a general holiday ,the provisions of article 18.9 shall apply to the first shift only ."
Canada Labour Code
"26. In this part
"general holiday" Means New Year’s Day, Good Friday,Victoria day, Dominion Day Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day and includes any day substituted for any such holiday pursuant to section 51;
51.(1) Any other holiday may be substituted for a general holiday in any of the circumstances following :
(a) Where a class of employees of an employer is represented by a trade union and the parties to a collective agreement entered into with regard regard to the terms or conditions of employment of the employees notify the minister in writing that a specified day has been designated in the collective agreement as a holiday with pay in lieu of a general holiday under this division, such designated day shall ,for those employees mentioned in the collective agreement ,be a general holiday for the purposes of this part; or
(b) Where no employees of an employer are represented by a trade union or where a class of employees is not provided for under a collective agreement with regard to general holidays , and the employer applies to the minister to substitute another designated holiday for any general holiday under this division,the minister may ,if he is satisfied that a majority of the employees or ,as the case may be ,that a majority of the class of employees who are not provided for under a collective agreement in regard to general holidays ,concur with the application, approve the substitution of such designated holiday for the specified general holiday ,and such designated day shall for those employees be a general holiday for the purposes of this part .
204. Each party to a collective agreement shall, forthwith upon its execution,file one copy of the collective agreement with the minister."
Article 18.1 of the collective agreement sets out a list of ten general holidays, seven of which are observed in all provinces and three of which vary from province to province . Employees who qualify under article 18.6 (which would include the grievor) are entitled to holiday pay in respect or these holidays (article 18.9) and to premium pay for work performed on the holiday (articles 18.8 and 18.12). The collective agreement also provides for substituting the day on which a general holiday is observed in two circumstances: (1) when the holiday falls on a Saturday or Sunday, in which case , the holiday is observed on the day which is recognized by the federal government in respect of its employees (article 18.4);and (2) when the holiday falls on an employee’s rest day,in which case, theholiday is moved to the employee’s first normal working day following the rest day (article 18.3).
In this case , Boxing Day ,December 26, 1981, fell on a Saturday . Therefore ,in accordance with article 18.4 ,the company moved the Boxing Day to Monday, December 28th, which was the day observed by the federal government as the Boxing Day holiday. Inaddition ,since December 28th was a rest day for the grievor ,the company moved his holiday to Tuesday , December 29th, which was the grievor’s first day following the rest day. The union claimed that the company erred in applying both articles 18.4 and 18.3 in the circumstances of this case .
Firstly, the union claimed that article 18.4 is inapplicable since the grievor in this case worked from Tuesday to Saturday . According to the union , article 18.4 applies only to employees who work from Monday to Friday . The board cannot agree .Article 18.4 prescribes a formula for moving the day on which a holiday is observed in certain circumstances,i.e. When the holiday falls on a Saturday or Sunday. When this happens , article 18.4 applies (irrespective of the work schedules of individual employees) and the effect of its application is to move the holiday to the day observed by the federal government in respect of its employees: see Re The Railway Association of Canada and Division No. 4, Railway Employees Department, AFL-CIO, GrievanceRelating to the Interpretation of Article 46.3 of Wage Agreement No. 16; December 16, 1971 (Weatherill (unreported) ). In this case ,since Boxing Day fell on a Saturday ,Article 18.4 requires that the holiday be moved to Monday , December 28th, the day observed by the federal government as the Boxing Day holiday .
However, Monday , December 28th was a rest day for the grievor ,which brings into play article 18.3 , dealing with the substitution of a holiday which falls on a rest day . In accordance with article 18.3 , the company moved the grievor’s holiday to Tuesday , December 29th ,his normal working day following the rest day .The union claimed thet the company erred in applying article 18.3 in the circumstances of this case . According to the union ,article 18.3 applies where a general holiday , including Boxing Day , falls on a rest day but does not apply where the day which is substituted for the general holiday (in this case , Monday , december 28th) falls on a rest day . According to this submission ,article 18.3 has no application in the circumstances of this case since Boxing Day fell on Saturday ,December 26th ,which was a working day for the grievor . The board cannot agree . as previously stated, the effect of article 18.4 is to move the Boxing Day holiday from Saturday December 26th to Monday ,December 28th which was a rest day for the grievor .If the union were correct and article18.3 had no application ,then the grievor would be deprived of the Boxing Day(assuming ,as the board has found, that article 18.4 applies). Obviously ,this could not have been intended by the parties . Therefore , article 18.3 applies to move the Boxing Day holiday for the grievor from Monday , December 28th to Tuesday , December 29th ,his first working day following the holiday .
Since the Boxing Day holiday was moved to December 29th, the grievor was entitled to holiday pay for that day . The union claimed that he was also entitled to premium pay for working on Saturday ,December 26th ,which was actually Boxing Day. In the board’s view ,since the collective agreement provides for substitution of the Boxing Day holiday, the day which is substituted is deemed to be the holiday ,which attracts both holiday pay and premium pay (for employees who work). Since another day has been substituted for the holiday , there is obviously no entitlement to either holiday pay or premium pay for working on the actual holiday . Accordingly the grievor has no entitlement under the collective agreement to premium pay for working on December 26th.
The union claimed that nothwithstanding the provisions of the collective agreement , the grievor was entitled to premium pay for working on December 26th. According to the union the provisions of the collective agreement dealing with substitution for a general holiday (i.e. Articles 18.3 and 18.4) are null and void since they conflict with section 51 of the Canada Labour Code , which requires the parties to notify the Minister in writing that a specified day has been substituted for a general holiday which includes Boxing Day . Since the parties did not notify the minister in writing of the substitution of another day for the boxing day holiday , the union claimed that the substitution was invalid and ,therefore that premium pay must be paid for december 26th ,which was actually boxing day. The company did not dispute that any provision of the collective agreement which contravenes a public statute is null and void . However ,the company took the position that the Canada Labour Code has not been contravened since section 51 has no application in this case . According to the company , section 51 applies to the substitution of one holiday of general recongnition for another and does not apply in the circumstances of this case , i.e. where the observance of a general holiday is moved to another day .The board cannot accept the company’s position .The difinition of "general holiday" ,which is contained in subsection 26.2 of the Canada Labour Code ,includes nine general holidays , including Boxing Day , as any "day" which is substituted for a general holiday under section 51 .Since the definition of general holiday includes any "day" substituded for a general holiday , the day to which the holiday is moved may properly be referred to as a "holiday" .(It would also appear that section 51 applies in the circumstances suggested by the company ,i.e. where one holiday is substituted for another).
Section 51 requires the parties to a collective agreement to notify the minister in writing when a specified day is substituded for a general holiday . In the board’s view, the obligation under section 51 applies in the circumstances of this case , i.e. where a holiday is moved to another day . However , section 51 does not specify the form in which notice to the minister must be given . In this case , it would appear that the notice requirement was fullfilled when the parties filed the collective agreement with the minister pursuant to section 204 of the CANADA LABOUR CODE . Since the collective agreement prescribes a formula which may be applied to determine the specified day which is substituted for a general holiday (articles 18.3 and 18.4),it would appear that the requirements of section 51 have been fullfilled . Accordingly, there is no conflict with section 51 of the Canada Labour Code and so the collective agreement provisions governing substitution for general holidays must stand .Since the company applied these provisions correctly , the grievance must be dismissed .
DATED AT TORONTO this 23rd day of September, 1983.
IN THE MATTER OF AN ARBITRATION
BETWEEN: CNCP TELECOMMUNICATIONS
CANADIAN ASSOCIATION OF COMMUNICATIONS
AND ALLIED WORKERS
AND IN THE MATTER OF THE GRIEVANCE OF C.J. PETERS
D I S S E N T
- - - - - - - - - -
I find that I am unable to agree with the majority decision in this matter . Section 51 of the Canada Labour Code requires that the parties to a collective agreement notify the minister in writing when a specified day is substituted for a general holiday. There is no doubt that this was not done in this case . The company’s only defence was that they had filed the collectivite agreement itself with the minister of labour as they were required to by section 204 of the code . This can in no way be seen as compliance with section 51 . I think that it is quite clear that this section contemplates a specific notification to the minister not just the filing of the collective agreement . Is the minister expected to leaf through each and every collective agreement filed with him pursuant to section 204 ahd attempt to ascertain whether the requirements of section 51 are contained in it ? I think not.
In any event ,it is not clear from reading the collective agreement which day the grievor is entitled to the holiday for indeed, it took an arbitration hearing to decide the interpretation .
I would have allowed the grievance and ordered the grievor compensated in full .