Date: 20100629
Docket: T-1352-09
Citation: 2010 FC 708
Ottawa,
Ontario, June 29, 2010
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
HANSON CHAN, DIANNE CHRISTINE
FARKAS,
DAVID CHARLES FREEBORN, GLEN KAWAGUCHI,
DANIAL MAEHARA, THOMAS MAHON,
WILLIAM GERALD MARTIN, and MICHAL STEFAN
WALNICKI
Applicants
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
The applicants seek judicial review of the decision of the Public
Service Labour Relations Board (PSLRB)
which allowed their grievances in part. Their first set of grievances was
allowed as it was held that scheduling the applicants to work on both Christmas
and New Year’s Day was contrary to their collective agreement. Their second set
of grievances was dismissed on the ground that the employer did not violate the
collective agreement when he amended the schedule and advised the applicants
not to report for work on one of these two days and had no obligation to
schedule one of these designated paid holidays as a day of rest.
[2]
This
application only relates to the second group of grievances. According to the
applicants, it involves a question of interpretation of clause 30.06 of their
collective agreement that has never been adjudicated before. At the hearing, it
was made clear that, while the Court is only concerned with events that took
place over the 2001-2002 holiday season, the interpretation of clause 30.06 is
still very relevant as this provision remains in the collective agreement currently
in force. For the reasons that follow, the Court concludes that the application
must be dismissed.
Background
[3]
The
applicants were employed as Customs Inspectors in the Flexible Response Team in
the Commercial Operations Division of the Canada Customs and Revenue Agency at Pearson International Airport. They were working on a
variable shift schedule. At the relevant time, they were governed by the
Agreement between the Canada Customs and Revenue Agency and the Public Service
Alliance of Canada, signed on June 23, 2000 (the Collective Agreement). They were also covered by
the Variable Shift Scheduling Agreement – Local Agreement for Customs
Inspectors – P.I.A., Commercial District – Secondary Cell (VSSA). This
type of agreement exists in workplaces which, like Pearson International Airport, operate 24/7, 365 days
per year.
[4]
Under
the VSSA, the employees are scheduled to work for 5 consecutive days followed
by 3 consecutive days of rest, totaling 300 working hours over a 56-day period
(8-week period). Therefore, pursuant to this variable shift schedule, they do
not have fixed days of work and they may be working on week days, week-ends or
on designated paid holidays (DPHs) listed in the Collective Agreement.
The applicants’ standard shift or work day was 8.57 hours.
[5]
On
November 13, 2001, the applicants noticed that the master schedule recently
posted included working shifts on both December 25, 2001 and January 1, 2002,
which are DPHs. The applicants advised their supervisor that this was contrary
to clause 30.06 of the Collective Agreement which provides that subject to one
exception, they should only be scheduled to work on one of these two
DPHs in the same holiday season. They also asked that the master schedule be
amended such that everyone could have either Christmas or New Year’s Day as a day
of rest.
[6]
On
November 21, 2001, in response to the applicants’ proposal, the management
asked them to choose one of these two holidays on which they would prefer to be
“H’ed” on. In the agreed statement of facts filed before the PSLRB, “H’ing” (or
“H’ed” or “H”) was defined as follows:
“H’ing”
is the term used to describe situations in which management informs employees
that their services are not required on a DPH. As such, these employees are
instructed not to report for work on their scheduled shift, and are compensated
for 7.5 hours.
[7]
As
the applicants declined to make such an election, the management “H’ed” one
half of the applicants on Christmas day and the other half on New Year’s Day.
[8]
As a
result of the above, the applicants were only paid for 7.5 hours on the day
they were put on paid leave which was accounted for as a holiday and not as a
day of leave.
As for the remaining 1.07 hours of their shift, the applicants were told that
such time would have to be made up at a later date or have to be covered by
annual leave.
A new weekly schedule was posted identifying the applicants whose working
shifts had been changed to paid leave (holiday status). This was apparently the
first time that the employer unilaterally changed the applicants’ scheduled
working shifts or work day to paid leave (see paragraph 17 of the decision).
[9]
Had
the applicants’ scheduled shifts been changed to a scheduled day of rest on one
of these dates, the applicants would not have worked on the actual date of the
DPH. However, the DPH would have been moved to these employees’ next scheduled
work day following the day of rest, and they would have received, for the work
actually performed on that day, the same amount as if they had worked on the
DPH − namely, straight time for 7.5 hours plus at time and one-half (1 ½)
up to his regular scheduled hours worked, namely 8.57 hours.[6]
[10]
The witness appearing on behalf
of the applicants before the PSLRB testified “that changing the scheduled shifts
to paid leave is a practice that occurs on designated paid holidays and that,
when an employee asks for that change, the person stays home, gets paid for 7.5
hours and requests annual leave for the period in excess of 7.5 hours. She
confirmed that she could have asked the employer to stay home. Before 2001, the
employer never requested changing scheduled shifts to paid leave” (paragraph 20
of the decision).
[11]
Several
sets of grievances resulted from these events, only two of which were dealt
with in the decision under review. As mentioned, the first set of grievances
before the decision-maker is not relevant to the present application for it was
not challenged in the Notice of Application
(see page 3 of the applicants’ Record). In the set of grievances of interest
here, the decision-maker did not accept the allegations that the employer acted
contrary to clauses 1.01, 1.02, 18.22,
25.20 and 30.06
of the Collective Agreement when it informed the applicants not to report to
work for one of their originally scheduled shifts instead of changing their
scheduled shift on December 25, 2001 or January 1, 2002 to a scheduled day of
rest and rescheduling an existing day of rest as a working day.
[12]
Because
the issues relevant to the first and second set of grievances are intermingled
in the decision (as they were in the arguments), it is not easy to distinguish
the findings relevant to the grievances under review. The parties focused their
arguments on the following passage where the PSLRB said:
59
Counsel for the grievors contends that the employer should have changed their
scheduled shifts to days of rest. However, the collective agreement defines a
“day of rest” as a day, other than a holiday, on which an employee is not
ordinarily required to perform the duties of his or her position and a
“holiday” as the 24 hours of a day designated as a paid holiday. Since December
25 and January 1 are defined as designated paid holidays in clause 30.02 of the
collective agreement, they cannot be days of rest. Not scheduling an employee
to work on a designated paid holiday does not transform that holiday into a day
of rest.
60
If the parties to the collective agreement had intended to provide that a
designated paid holiday is considered a day of rest, they would have expressly provided
so. The fact that clause 30.05 of the collective agreement provides for moving
a designated paid holiday when it coincides with a day of rest further supports
the view that the two concepts are mutually exclusive. Furthermore, the fact
that clause 30.05 specifies that a moved designated paid holiday shall take
precedence over an employee’s day of leave with pay is another example of a
specific outcome provided in the collective agreement.
61 […] I am also of the view
that the employer has no obligation to transform a designated paid holiday into
a day of rest. A designated paid holiday is a form of paid leave; it is not a
day of rest.
[13]
The
applicants submit that the PSLRB misconstrued the Collective Agreement,
particularly the impact of clause 30.06, the definition of a “day of rest” and
the nature of a DPH (“form of paid leave”).
[14]
In
their Memorandum of Fact and Law, the applicants framed the issue to be
determined as follows:
Did
the adjudicator err in his interpretation and application of the collective
agreement, specifically in respect of his determination that the employer
corrected its violation of Article 30.06 by placing the Applicants on
holiday status rather than by amending their schedules to make December 25,
2001 a day of rest?
[Emphasis
added]
However, as mentioned, the only violation of
clause 30.06 accepted by the PSLRB was in the context of the first set of
grievances
as was its determination of whether or not such violation was properly
corrected.
In respect of the second set of grievances, there had first to be a violation
of the Collective Agreement before one had to determine what is the proper
measure of damages or compensation necessary to correct such violation. The
PSLRB did not deal with this last question in respect of the grievances under
review.
[15]
Hence,
at the beginning of the hearing before this Court, it was made clear that the
question that is the subject of the present review was:
Did
the employer violate the terms of the Collective Agreement when it instructed the
applicants not to report to work on either December 25, 2001 or January 1, 2002
and scheduled such shift or day as paid leave instead of as a day of rest?
This distinction between the issue as framed by
the applicant and the issue as reformulated by the Court is to be kept in mind
when one considers the applicants’ submissions (particularly in their
Memorandum) and authorities such as Nitschmann v. Canada (Treasury Board),
2009 FCA 263, 394 N.R. 126 (Nitschmann) and Clarkson v. Treasury
Board, 2009 PSLRB 87, [2009] C.P.S.L.R.B. No. 87 (QL) (Clarkson). In
Nitschmann, the employer had conceded that the change of schedule in
that case was in breach of the collective agreement and the issue dealt with by
the Federal Court of Appeal was what damages were payable as a result of that
breach (see paragraphs 10, 18 and 19). In Clarkson, described as a
companion case (heard at the same time by the same adjudicator) despite evident
and material differences, the PSLRB found that there was a violation of the
collective agreement
when the employer changed the scheduled shift of Mr. Clarkson to an
“involuntary” paid leave only because it was done without proper notice. It was
not even argued in that case that the employer did not have the right to “H”
Mr. Clarkson.
There is also nothing contradictory in the statements made therein with respect to the value
of a DPH as this was done in the context of a grievance similar to the ones filed by the
applicants in respect of the remaining 1.07 hours of their original shift (see
paragraph 8 and footnote 3 above).
[16]
The
relevant statutory provisions and clauses of the Collective Agreement are
reproduced in Schedule A. While it is the Court’s practice to include the
French and English versions of all relevant provisions, the French version of
the Collective Agreement was not filed by the parties. However, the French
version of the decision under review includes the French text of some of the
most relevant ones such as clause 30.06. Thus, these are also reproduced in
Schedule A. The Court notes that it would be a good practice to include both
versions when interpretation of a provision of the Collective Agreement is at
issue. Here, it would have been particularly useful to hear arguments on the
French text which appears to support the interpretation adopted by the PSLRB.
That said, the Court was able to reach its decision without any reference to
the said text.
Analysis
[17]
The
parties agreed that the applicable standard of review is that of
reasonableness. The substance of the PSLRB’s decision was the interpretation
and application of the Collective Agreement to the facts of the grievances. It
is now well-settled that such issue falls within the purview of the PSLRB’s
expertise and calls for deference of the reviewing court: Public Service Alliance of Canada v. Canada (Canadian Food
Inspection Agency),
2005 FCA 366, 343 N.R. 334 at para. 18; Currie v. Canada (Customs and Revenue
Agency),
2005 FC 733, 139 A.C.W.S. (3d) 869 at paras. 12-13, rev’d on other grounds 2006
FCA 194, [2007] 1 F.C.R. 471 at para. 20; Nitschmann v. Canada (Treasury Board), 2008 FC 1194, 171 A.C.W.S. (3d) 123, var’d on other grounds
2009 FCA 263, 394 N.R. 126. Therefore, the Court must determine whether the
PSLRB’s decision “falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law”: Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.
[18]
The
applicants argue that article 30 (and clause 25.27(e)) is a comprehensive code
as to how DPHs must be treated under the Collective Agreement. As there is no
provision authorizing the employer to schedule them to be on paid leave, the
employer simply has no authority to proceed this way. In their view, the regime
established by the Collective Agreement and the VSSA taken together requires
that all days including December 25 and January 1 be included in the 56-day
schedule either as work days or days of rest. Article 30 and clause 25.27(e)
are meant to ensure that VSSA employees are compensated for every DPH, regardless
of whether the actual date of holiday falls on a scheduled work shift or a day
of rest.
[19]
Thus,
according to the applicant, given that here, the employer could not
legitimately schedule them to work on both December 25, 2001 and January 1,
2002 ,
the only option that remained open to the employer was to schedule the
applicants to be on a day of rest.
[20]
In
the same vein, they say that the notion of paid leave (holiday status)
necessarily implied that one was scheduled to work on that date; again, this would
be contrary to clause 30.06 in the present circumstances.
[21]
For
the applicants, the definition of a “day of rest” relied upon by the PSLRB
exists to ensure that DPHs are accorded treatment that is different from
Saturdays and Sundays for regularly scheduled employees or for any days
scheduled as days of rest for VSSA employees. They further submit that clause
30.05(a) clearly sets out the relationship between a DPH and a day of rest. In
any event, the applicants note that although the definition of a “day of rest”
and clause 30.05(a) may preclude a day of rest from being deemed a
holiday, they do not prevent a holiday from being scheduled either as a work
day or a day of rest.
[22]
It
is worth noting that the arguments of the applicants before the PSLRB appear to
have been slightly different from those presented to the Court. Particularly,
in paragraph 55 of the decision in the summary of the grievors’ rebuttal, one
finds that the applicants argued that:
[…]
If the employee is not scheduled to work and is not on annual leave or on
another type of leave, the employer has to place the employee on a day of
rest.
[Emphasis
added]
[23]
This
may well explain why the decision-maker − who writes for the parties
− said that a DPH is “a form of paid leave”.
[24]
It
is also worth noting that, in paragraph 53 of the decision, it is stated that:
53
Counsel for the grievors indicated that the decisions quoted by counsel for the
employer dealt with whether the practice of changing scheduled shifts to paid
leave was unlawful under the collective agreement. Those decisions dealt with
the question of whether a shift schedule is a contractual obligation and
whether employees have an unfettered right to work. That is not the case
here.
[Emphasis
added]
[25]
When
reading paragraphs 53 and 55 of the decision together, it appears that the only
point made before the PSLRB was that, in this case, the employer could not
exercise what is normally
part of its managerial functions (unilaterally schedule a paid leave) in
respect of the two specific DPHs referred to in clause 30.06 because this
provision limits its power to schedule employees to work. One could say that
implicitly, in respect of the other DPHs, the employer’s right to do so was not
challenged.
[26]
This
is somewhat different than the complete code argument put forth before me and in
respect of which no case law was submitted. Here again, it may explain why
there is no discussion of that argument in the decision.
[27]
That
said, before me the respondent vigorously disagreed with the view put forth by
the applicants, both as a general principle and more particularly, in the
context of this instance where article 6 of the Collective Agreement makes it
very clear that the managerial responsibilities of the employer remain
unrestricted except as provided therein.
[28]
Certainly,
there was no dispute before me that normally, unless restricted by statute or
by the collective agreement, an employer has the right to unilaterally schedule
a paid leave as part of its managerial functions (P.S.A.C. v. Canada
(Canadian Grain Commission), [1986] F.C.J. No. 498 (F.C.) (QL); Peck v.
Parks Canada, 2009 FC 686, [2009] F.C.J. No. 1707 at para. 37 (QL); Brescia v. Canada (Treasury Board), 2005 FCA 236, 255 D.L.R. (4th) 334 at para. 50, Shaw v. Canadian Food Inspection
Agency, 2009 PSLRB 63, [2009] C.P.S.L.R.B. No. 63 (QL)).
[29]
Finally,
the applicants did not challenge the following principles discussed in some of
the cases cited:
- Employees have no vested right to work on a
DPH so as to benefit from the DPH premium pay and this includes actually
working on the date of the DPH or on the deemed date of the DPH (for example, if the
DPH falls on a day of rest).
- The purpose of DPHs was described as
follows in Empson and Treasury Board (Board file 166-2-319):
The
purpose of paid holiday provisions is to regularize and humanize the employee's
working life so that he can spend time with his family or friends when they,
too, are free of working obligations - usually on general public holidays -
without the economic disincentive of lost pay. Thus, so far as possible, the
rule should be that no work should be done on a holiday. However, especially in
the public sector, it is inevitable that some employees will have to work on a
holiday. For these employees, who have lost the advantage enjoyed by all
others, special compensatory premiums have been provided. These premiums are
deliberately scaled up to punitive dimensions so that the employer will not be
tempted to lightly intrude on the employees' holidays and simply pay regular
rates or some slight surcharge. Clause 21.05, for example, provides that an
employee who works on a holiday will receive, in effect, the equivalent of 2
1/2 days' pay. The whole purpose of the agreement would be undercut if paid
holidays were viewed as an inducement to work rather than rest, and if the
punitive premiums were treated as a monetary windfall to be sought after rather
than as a meagre recompense for personal dislocation.
[30]
It
was also agreed at the hearing that subject to a specific exception or
provision, all employees covered by a particular provision in the Collective
Agreement should be treated equally.
[31]
As
discussed during the hearing, whenever a service can be suspended on a DPH, the
employer puts everybody on holiday status. On such days, the employees are paid
as though it is a regular scheduled work day.
[32]
Hence,
what is at issue here is really whether an employer who cannot completely close
its business or stop providing services because it operates on a 24/7, 365 days
basis can nevertheless take a similar approach by “H’ing” one or several
employees, in order to act in accordance with clause 30.02.
[33]
It
appears that the PSLRB did not accept the applicants’ interpretation that the
days on which they could not be scheduled to work could only appear in their
56-day schedule as days of rest or days of work. This can be inferred from
the fact that, having agreed that they could not be scheduled to work on both
of these days in the first set of grievances, the decision-maker clearly
concluded that there was no obligation in the Collective Agreement for the
employer to schedule one of these days as a day of rest.
[34]
Obviously,
this premise is an essential element of the reasoning relied upon by the
applicants. It may well be one of the possible interpretations of the
Collective Agreement and the VSSA read together but, in my view, it is not the
only one that was open to the decision-maker. Thus, the Court cannot simply
substitute its own view whatever it may be.
[35]
The
decision-maker clearly adopted a contextual approach looking at relevant
definitions and the other clauses of article 30.
[36]
These
can support the view adopted that the DPH is a concept quite distinct from a
day of rest.
Not only is a DPH expressly excluded from the definition of a day of rest, but
as noted by the PSLRB, article 30 does provide for situations where:
- the DPH coincides with a day of paid leave (clause 30.04 and
also 30.03 in the context of absence without pay)
- the DPH coincides with a day of rest
(clause 30.05)
[37]
Other
than by implication under clauses 30.02 and 30.04, there is no specific clause
dealing with when a DPH coincides with a scheduled work day.
[38]
In
effect, if for example, as argued by the applicants, one needs to have been
originally scheduled to work to be on leave (see definition in footnote 24),
clause 30.04 would support the view that a DPH could have been originally scheduled
as a working day.
[39]
Clause
30.06 is in a section entitled “Work Performed on a Designated Holiday” which
deals mostly with compensation for actual work performed when one is required
to show up for work on such days.
[40]
It
is also not unreasonable to construe “schedule an employee to work” in clause
30.06 in accordance with its context as meaning scheduled to actually work as
opposed to being scheduled to work but on paid leave (clause 30.04), or put
another way, not called or required to work.
[41]
The
applicants said that the conclusions reached by the decision-maker are against
the spirit of the Collective Agreement. Having considered the text and the
authorities in respect of the intent of DPH provisions, it is not unreasonable
to construe the Collective Agreement as providing that DPHs are to be enjoyed
by all, regardless of how these days are described in one’s schedule. If one
was on leave that day,
time will not be deducted from his leave bank; if one was on a day of rest, he
will have an extra day to be with his friends or family; and if one was
supposed to work, he will be on holiday and will receive an amount equal to his
regular working hours pay. Except for Christmas and New Year in the same
holiday season, none of this prevents the employer from actually requiring
employees to work on a DPH. If he does so, it will be at a dear cost; the
employer must pay a high premium for personal dislocation.
[42]
In
view of the foregoing, the applicants have not persuaded me that the PSLRB made
a reviewable error when it concluded that clause 30.06, which indicates that an
employee shall not be scheduled to work on a DPH, does not transform that
holiday into a day of rest, nor does it create an obligation for the employer
to account for it in the 56-day schedule as a day of rest.
[43]
The
conclusion reached by the PSLRB is one of the possible and acceptable outcomes
on the facts and the law in this case.
[44]
The
application is dismissed with costs. The parties agreed that a lump sum of
$3,000.00, inclusive, would be reasonable.
ORDER
THIS COURT ORDERS that:
1. The
application is dismissed; and
2. The
respondent is awarded costs in the amount of $3,000.00 (all inclusive,
including tax).
“Johanne Gauthier”
Schedule A
- Relevant statutory provisions
§
Financial
Administration Act,
R.S.C. 1985, c. F-11
|
7. (1) The Treasury
Board may act for the Queen’s Privy Council for Canada on all matters
relating to
[…]
(e) human resources management in the
federal public administration, including the determination of the terms and
conditions of employment of persons employed in it;
|
7. (1) Le Conseil du
Trésor peut agir au nom du Conseil privé de la Reine pour le Canada à l’égard
des questions suivantes :
[…]
e) la gestion des ressources
humaines de l’administration publique fédérale, notamment la détermination
des conditions d’emploi;
|
|
|
|
|
11.1 (1) In the exercise
of its human resources management responsibilities under paragraph 7(1)(e),
the Treasury Board may
(a) determine the human resources
requirements of the public service and provide for the allocation and effective
utilization of human resources in the public service; […]
(c) determine and regulate the pay to
which persons employed in the public service are entitled for services
rendered, the hours of work and leave of those persons and any related
matters; […]
(j) provide for any other matters,
including terms and conditions of employment not otherwise specifically
provided for in this section, that it considers necessary for effective human
resources management in the public service.
|
11.1 (1) Le Conseil du Trésor
peut, dans l’exercice des attributions en matière de gestion des ressources
humaines que lui confère l’alinéa 7(1)e) :
a) déterminer les effectifs
nécessaires à la fonction publique et assurer leur répartition et leur bonne
utilisation; […]
c) déterminer et réglementer
les traitements auxquels ont droit les personnes employées dans la fonction
publique, leurs horaires et leurs congés, ainsi que les questions connexes;
[…]
j) régir toute autre
question, notamment les conditions de travail non prévues de façon expresse
par le présent article, dans la mesure où il l’estime nécessaire à la bonne
gestion des ressources humaines de la fonction publique.
|
- Collective Agreement
|
ARTICLE
1
PURPOSE
AND SCOPE OF AGREEMENT
1.01
The purpose of this Agreement is to maintain harmonious and mutually
beneficial relationships between the Employer, the Alliance, and the employees and to set forth
herein certain terms and conditions of employment for all employees of the
Employer described in the certificates issues by the Public Services Staff
Relations Board on:
• June
7, 1999, for the Program and Administrative Services Group.
• June
10, 1999, for the Technical Services Group.
• June
16, 1999, for the Operational Services Group.
• June
7, 1999, for the Education and Library Science Group.
1.02
The parties to this Agreement share a desire to improve the quality of the
Public Service of Canada and to promote the well-being and increased
efficiency of its employees to the end that the people of Canada will be well and efficiently served.
Accordingly, they are determined to establish, within the framework provided
by law, an effective working relationship at all levels of the Public Service
in which members of the bargaining units are employed.
ARTICLE
2
INTERPRETATION
AND DEFINITIONS
2.01
For the purpose of this Agreement:
[…]
“day
of rest” in relation to a full-time employee, means a day other than a
holiday on which that employee is not ordinarily required to perform the
duties of his or her position other than by reason of the employee being on
leave or absent from duty without permission (jour de repos)
[…]
“holiday”
(jour férié) means:
(i)
the twenty-four (24)-hour period commencing at 00:01 hours of a day
designated as a paid holiday in this Agreement,
[…]
“leave”
means authorized absence from duty by an employee during his or her regular
or normal hours of work (congé)
ARTICLE
6
MANAGERIAL
RESPONSIBILITIES
6.01
Except to the extent provided herein, this Agreement in no way restricts the
authority of those charged with managerial responsibilities in the Public
Service.
[…]
ARTICLE
18
GRIEVANCE
PROCEDURE
18.22
No person who is employed in a managerial or confidential capacity shall seek
by intimidation, by threat of dismissal, or by any other kind of threat to
cause an employee to abandon his or her grievance or refrain from exercising
his or her right to present a grievance as provided in this Agreement.
[…]
ARTICLE
25
HOURS
OF WORK
[…]
25.16
The Employer shall set up a master shift schedule for a fifty-six (56) day
period, posted fifteen (15) days in advance, which will cover the normal
requirements of the work area.
[…]
25.20
Sub-clauses (a) and (b) apply to the employees in the Program and
Administration Services Group only. See alternate provisions for other
employees.
(a) An
employee who is required to change his or her scheduled shift without
receiving at least seven (7) days’ notice in advance of the starting time of
such change in his or her scheduled shift, shall be paid for the first shift
worked on the revised schedule at the rata of the time and one-half (1 1/2)
for the first seven and one-half (7 1/2) hours and double time thereafter.
Subsequent shifts worked on the revised schedule shall be paid for at
straight time, subject to Article 28, Overtime.
[…]
25.27
Specific Application of this Agreement
(e)
Designated Paid Holidays (clause 30.08)
(i) A
designated paid holiday shall account for seven and one-half (7 ½) hours.
(ii) When
an employee works on a Designated Paid Holiday, the employee shall be
compensated, in addition to the pay for the hours specified in subparagraph
(i), at time and one-half (1 ½) up to his or her regular scheduled hours
worked and at double (2) time for all hours worked in excess of his or her
regular scheduled hours.
[…]
ARTICLE
30
DESIGNATED
PAID HOLIDAY
30.02
Subject to clause 30.03, the following days shall be designated paid holidays
for employees:
(a)
New Year’s Day, […]
(i)
Christmas Day,
[…]
30.03
An employee absent without pay on both his of her full working day
immediately preceding and his or her full working day immediately following a
designated holiday is not entitled to pay for the holiday, except in the case
of an employee who is granted leave without pay under the provisions of Article
14, Leave With or Without Pay for Alliance Business.
30.04
Designated Holiday Coinciding With Day of Paid Leave
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.
[…]
30.05
Designated Holiday Coinciding With a Day of Rest
(a)
When a day designated as a holiday under clause 30.02 coincides with an
employee’s day of rest, the holiday shall be moved to the first scheduled
working day following the employee’s day of rest. When a day that is
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.
[…]
Work
Performed on a Designated Holiday
30.06
Where operational requirements permit, the Employer shall not schedule an
employee to work both on December 25 and January 1 in the same holiday
season.
|
ARTICLE
1
OBJET
ET PORTÉE DE LA CONVENTION
1.01
La présente convention a pour objet d’assurer le maintien de rapports
harmonieux et mutuellement avantageux entre l’Employeur, l’Alliance et les
employé-e-s et d’énoncer certaines conditions d’emploi pour tous les
employé-e-s décrits dans les certificats émis par la Commission des relations
de travail dans la fonction publique le :
• 7 juin 1999, pour le groupe
Service des programmes et de l’administration;
• 10 juin 1999, pour le
groupe Services techniques;
• 16 juin 1999, pour le
groupe Services de l’exploitation;
• 7 juin 1999, pour le groupe
Enseignement et bibliothéconomie.
1.02
Les parties à la présente convention ont un désir commun d’améliorer la
qualité de la fonction publique du Canada et de favoriser le bien-être de ses
employé-e-s ainsi que l’accroissement de leur efficacité afin que les
Canadiens soient servis convenablement et efficacement. Par conséquent, elles
sont déterminées à établir, dans le cadre des lois existantes, des rapports
de travail efficaces à tous les niveaux de la fonction publique auxquels
appartiennent les membres des unités de négociation.
ARTICLE
2
INTERPRÉTATION
ET DÉFINITIONS
2.01
Aux fins de l’application de la présente convention :
[…]
«
jour de repos » désigne, par rapport à un employé-e à temps plein, un jour
autre qu’un jour férié où un employé-e n’est pas habituellement tenu d’exécuter
les fonctions de son poste pour une raison autre que le fait qu’il ou elle
est en congé ou qu’il ou elle est absent de son poste sans permission. (day
of rest)
[…]
«
jour férié » (holiday) désigne :
(i)
la période de vingt-quatre (24) heures qui commence à 0 h 01 un jour désigné
comme jour férié payé dans la présente convention,
[…]
« congé »
*
ARTICLE
6*
ARTICLE
18
PROCÉDURE
DE RÈGLEMENT DES GRIEFS
18.22
Il est interdit à toute personne occupant un poste de direction ou de confiance
de chercher, par intimidation, par menace de renvoi ou par toute autre espèce
de menace, à amener l’employée à renoncer à son grief ou à s’abstenir
d’exercer son droit de présenter un grief, comme le prévoit la présente
convention.
ARTICLE
25
DURÉE
DU TRAVAIL
[…]
25.16
L’Employeur établit un horaire général des postes portant sur une période de
cinquante-six (56) jours et l’affiche quinze (15) jours à l’avance; cet
horaire doit répondre aux besoins normaux du lieu de travail.
[…]
25.20
Les sous-paragraphes (a) et (b) ne s’appliquent qu’aux employé-e-s du groupe
Services des programmes et de l’administration. Voir les dispositions de
dérogation pour les autres employé-e-s.
(a)
L’employé-e qui ne reçoit pas un préavis d’au moins sept (7) jours portant modification
de son poste à l’horaire est rémunéré au tarif et demi (1 ½) pour les sept
premières heures et demie (7 ½) et à tarif double par la suite pour le
travail exécuté au cours du premier poste de l’horaire modifié. Les postes
subséquents exécutés d’après le nouvel horaire sont rémunérés au tarif
normal, sous réserve de l’article 28, Heures supplémentaires.
[…]
25.27*
ARTICLE
30
JOURS
FÉRIÉS PAYÉS
30.02
Sous réserve du paragraphe 30.03, les jours suivants sont désignés jours fériés
désignés payés pour les employé-e-s:
(a)
le jour de l’An, […]
(i)
le jour de Noël,
[…]
30.03
*
30.04
*
30.05
Jour férié coïncidant avec un jour de repos
(a)
Lorsqu’un jour désigné jour férié en vertu du paragraphe 30.02 coïncide avec
un jour de repos de l’employé-e, il est reporté au premier jour de travail à
l’horaire de l’employé-e qui suit son jour de repos. Si l’employé-e est en
congé payé, le jour auquel est reporté le jour férié, ce jour est compté
comme un jour férié et non comme un jour de congé.
[…]
Travail
accompli un jour férié
30.06
Sous réserve des nécessités du service, l’Employeur ne demande pas à
l’employé-e de travailler le 25 décembre et le 1er janvier pendant le temps
des Fêtes.
|
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1352-09
STYLE OF CAUSE: HANSON
CHAN, DIANNE CHRISTINE FARKAS, DAVID CHARLES FREEBORN, GLEN KAWAGUCHI, DANIAL MAEHARA, THOMAS
MAHON, WILLIAM GERALD MARTIN, and MICHAL STEFAN WALNICKI v. ATTORNEY GENERAL OF
CANADA
PLACE OF HEARING: Ottawa,
Ontario
DATE OF HEARING: June 2, 2010
REASONS FOR ORDER
AND ORDER: GAUTHIER J.
DATED: June 29, 2010
APPEARANCES:
|
Mr. Andrew Raven
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FOR THE APPLICANTS
|
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Mr. Richard Faden
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FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Andrew Raven
Raven, Cameron, Ballantyne &
Yazbeck LLP/s.r.l.
|
FOR THE APPLICANTS
|
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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