Date: 20001204
Docket: T-1661-99
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
JOHN KING
Respondent
REASONS FOR ORDER
HENEGHAN J.
INTRODUCTION
[1] The Attorney General of Canada (the "Applicant") seeks to quash a decision of Rosemary Vondette Simpson, an Adjudicator (the "Adjudicator") named under the Public Service Staff Relations Act, R.S., c. P-35 dated August 19, 1999. Her decision related to grievances filed by John King (the "Respondent"), pursuant to section 92 of the Public Service Staff Relations Act, supra, (the "Act").
[2] The Respondent's grievances dealt with the calculation of his compensation for having worked on a designated paid holiday, that is, Canada Day, July 1, 1997. At issue was the manner in which his premium pay was calculated having regard to the interpretation of the relevant collective agreement and collateral agreements. The adjudicator upheld one grievance and dismissed the other. The Applicant seeks judicial review of the decision allowing the Respondent's grievance and an order to quash it.
FACTS
[3] The Respondent is a Customs Inspector with Revenue Canada. He is designated as a "PM-01". He works at the Lester B. Pearson International Airport in Toronto. He was scheduled to work on July 1, 1997 and worked on that day.
[4] The Respondent, as an employee of Revenue Canada, is represented, for collective bargaining purposes, by the Public Service Alliance of Canada (the "Alliance"). The relevant agreements entered into between the Alliance and the employer are the following:
| (a) The Master Collective Agreement between the Alliance and Treasury Board; |
| (b) The Program Administration (PM) Group Specific Agreement; and |
| (c) The Variable Shift Scheduling Arrangement, entered into pursuant to subclause 18.19 of the Group Specific Agreement, establishing a variable shift schedule for Customs Inspectors at the Lester B. Pearson International Airport. |
The implementation of the variable work schedule followed the signing of the Variable Shift Scheduling Agreement which specifically provides that Customs Inspectors at Lester B. Pearson International Airport in Toronto will work variable work periods.
[5] The various agreements referred to above address the manner in which compensation is to be paid to those employees who are subject to the agreements. The relevant provisions of the Master Collective Agreement are set out in Article M-40 as follows:
| The Employer and the Public Service Alliance of Canada agree that the following conditions shall apply to employees for whom variable hours of work schedules are approved pursuant to the relevant provisions of the applicable Group Specific Agreement. The Master Agreement and Group Specific Agreement are modified by these provisions to the extent specified herein. |
| It is agreed that the implementation of any such variation in hours shall not result in any additional expenditure or costs by reason only of such variation. |
| The scheduled hours of work of any day as set forth in a work schedule, may exceed or be less than the regular workday hours specified by the relevant Group Specific Agreement; starting and finishing times, meal breaks and rest periods shall be determined according to operational requirements as determined by the Employer and the daily hours of work shall be consecutive. |
| For shift workers such schedules shall provide that an employee's normal workweek shall average the weekly hours per week specified in the relevant Group Specific Agreement over the life of the schedule. The maximum life of a schedule shall be six (6) months. |
| 5. Designated Paid Holidays |
| (a) A designated paid holiday shall account for the normal daily hours specified by the relevant Group Specific Agreement. |
| (b) When an employee works on a Designated Paid Holiday, the employee shall be compensated, in addition to the normal daily hours' pay specified by the relevant Group Specific Agreement, time and one-half (1 [frac12]) up to his or her regular scheduled hours worked and double (2) time for all hours worked in excess of his or her regular scheduled hours.1 |
[6] The relevant provisions of the Group Specific Agreement are set out in Clauses 18.08 and 18.19 as follows:
| When, because of the operational requirements of the Service, hours of work are scheduled for employees on a rotating or irregular basis, they shall be scheduled so that employees, over a period of not more than fifty-six (56) calendar days: |
| (b) work seven and one-half (7[frac12]) hours per day, exclusive of a one-half ([frac12]) hour meal period;2 |
| 18.19 Notwithstanding the provisions of Clauses 18.08 to 18.18 and 18.22, consultation may be held at the local level with a view to establishing shift schedules which may be different from those established in Clauses 18.08 and 18.09. Such consultation will include all aspects of arrangements of shift schedules. |
| ** Once a mutually acceptable agreement is reached at the local level, the proposed shift schedule will be submitted at the appropriate Employer and Alliance levels of approval before implementation. |
| Both parties will endeavour to meet the preferences of the employees in regard to such arrangements. |
| It is understood that the flexible application of such arrangements must not be incompatible with the intent and spirit of provisions otherwise governing such arrangements. Such flexible application of this clause must respect the average hours of work over the duration of the master schedule, and must be consistent with the operational requirements as determined by the Employer.3 |
[7] Finally, the relevant provisions of the Variable Shift Scheduling Agreement, which was entered into pursuant to Clause 18.19 of the Group Specific Agreement, are Article 101, 102(e) and 103.01 as follows:
| This variable shift scheduling arrangement applies to the employees classified as Customs Inspectors, PM-1, on shift work, covered by the Master Agreement and Group Specific Agreement, employed at the Lester B. Pearson International Airport, Passenger Operations Section. |
| The Master Agreement, and the PM Group Specific Agreement are modified by this local arrangement only to the extent specified herein.4 |
| (e) Work Day: Means a period of 8 hours and 34 minutes worked consecutively, exclusive of a meal period.5 |
| Article 103 Hours of Work |
| 103.01 Employees in the work area covered by this local agreement shall be scheduled so that they, over a 56 day period: |
| (b) Work eight hours and thirty-four minutes per day, exclusive of a half ([frac12]) hour meal period. |
| (c) Work five (5) consecutive days and receive three (3) consecutive days of rest within an eight (8) day period, unless changed to meet a zero time balance.6 |
[8] The combined effect of these agreements, particularly the sections noted above, is that the Respondent works a variable work period over fifty-six calendar days which averages 37.5 working hours a week. He is paid on a bi-weekly basis for an average of 75 hours, notwithstanding the fact that he actually works 8.57 hours on a given day. His hourly wage is calculated by reference to a 37.5 hour work week.
[9] The Adjudicator reviewed these agreements and noted particular sections. She found that the Respondent was entitled to his regular pay for the paid holiday together with premium pay to be calculated on the basis of applying the rate of time and one half to the scheduled hours worked by the Respondent on that day.
[10] Pursuant to the various agreements referred to above, the Respondent's regular scheduled hours were 8.57 hours. This is the time he worked on July 1, 1997. The Adjudicator found that he was entitled to premium pay on the basis of 8.57 hours. The converted value of this time is 12.855 hours. She went on to say that he was entitled to be paid for this time in addition to his regular pay and found:
| Mr. King is entitled to be paid his regular pay for the two week period in which the Canada Day holiday occurred (7.5 hours on the designated paid holiday as explained above). This he would get whether he worked or not. However, he did work 8.57 hours. Therefore, he is entitled to premium pay at time and one half for a total of 12.855 hours (8.57 x 1.5 = 12.855 hours) for his work on the holiday in addition to his regular pay for the two week period.7 |
[11] For greater certainty, the Adjudicator concluded her decision as follows:
| Therefore, the premium pay Mr. King is to receive is 8.57 hours x 1.5. He is entitled to this amount in addition to the regular pay that he received in his bi-weekly pay cheque. |
ISSUE
[12] The Applicant states the issue in this Application as follows:
| Did the Adjudicator exceed her jurisdiction by rendering a patently unreasonable decision in concluding that the Respondent was paid 1.7 hours less than he was entitled to, under his collective agreement, for work on a designated paid holiday. |
ARGUMENTS
[13] The Applicant submits that the Adjudicator's decision is patently unreasonable because it ignores the fact that the Respondent had received his regular daily pay for July 1, 1997 in his bi-weekly pay cheque. According to the Applicant, the Respondent received his due compensation for working his scheduled hours of work on July 1, 1997 when he received his regular pay cheque. The Applicant says the Respondent has already been paid for 8.57 hours of work and calculates that his remaining entitlement for having worked on a designated paid holiday is for 11.785 hours. The Applicant reaches this figure by adding the regular daily work hours provided for in the Group Specific Agreement to the converted value of the Respondent's scheduled work hours to reach a total number of hours for which the Respondent should be paid, as follows:
| Regular daily work hours 7.5 |
| Converted value of scheduled |
| work hours 8. 57 x 1.5 12.855 |
[14] The Applicant acknowledges that the Respondent actually worked 8.57 hours on July 1, 1997 but argues that he received payment for that time in his regular bi-weekly pay cheque. Accordingly, the Applicant says that 8.57 hours should be deducted from the previous pay due to the Respondent for having worked on the designated paid holiday for July 1, 1997 as calculated below:
Less payment included in bi-weekly
[15] The Applicant states this argument succinctly in the Memorandum of Fact and Law as follows:
| The Respondent received 11.785 hours pay in his premium pay cheque and 8.57 in his regular bi-weekly pay cheque, totally 20.355 hours. There was no evidence before the Adjudicator to the contrary.8 |
[16] Unsurprisingly, the Respondent disputes this approach to the calculation of the monies due to him and relies on the decision of the Adjudicator who rejected the approach adopted by the Applicant.
[17] The Respondent submits that the courts have long demonstrated a high degree of deference to decisions of adjudicators appointed under the Public Service Staff Relations Act and that unless the decision in question is clearly irrational or simply ridiculous, then this Court should not interfere. In this regard, he relies upon the decision of the Supreme Court of Canada in Canada (Attorney General of Canada) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, particularly the words of Cory J., at page 963-964 as follows:
| ...Obviously, the patently unreasonable test sets a high standard of review....Thus, based on the dictionary definition of the words "patently unreasonable" it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test. |
[18] The Respondent says that the present matter does not raise a question of jurisdiction. The Respondent argues that the Adjudicator had jurisdiction to consider the grievance and indeed, the Adjudicator was the only person who could have heard this grievance. He submits that the Applicant is here disputing the interpretation given by the Adjudicator to the collective agreement, and says that the jurisprudence is clear that this court can only intervene when the decision is ridiculous.
[19] The Respondent further argues that the real question here is what credit is to be given to the employer for the non-premium time paid for on July 1. The Applicant, as employer, says there should be a credit of 8.57 hours on the basis that the Respondent never works a straight 7.5 hour day but works a variable schedule which averages out to a 37.5 hour work week for which he is paid. On the other hand, the Respondent says that the credit should be 7.5 hours, to conform with the terms of the applicable employment agreements.
ANALYSIS
[20] It is beyond dispute that the practical operation of the employment agreements in question relies on a fiction. The fiction is that the Respondent, and other employees in his situation, works a regular work day of 7.5 hours, when in reality he works 8.57 hours. His pay is calculated on the basis of the usual 37.5 hour work week. The fiction is relied upon in the calculation of ordinary straight pay and in my opinion, must equally be relied upon in the calculation of premium pay in accordance with the collective agreement. This means that the appropriate credit to be deducted in favour of the employer is 7.5 hours, not 8.57 hours as submitted by the Applicant. This is the conclusion reached by the Adjudicator.
[21] The Adjudicator rejected the formula proposed by the Applicant and concluded that the proper way to calculate the Respondent's premium pay for July 1, 1997 was to include the straight pay at 7.5 hours, together with time and one half for the hours actually worked, for a total of 20.355 hours. She rejected the argument of the Applicant that the total hours be reduced by 8.57 hours on the basis that the Respondent received pay, on straight time, for these hours in his regular bi-weekly cheque.
| Mr. King's regular pay for the day is his hourly rate multiplied by 7.5 hours as provided for in his collective agreement for his classification and range. This is not essentially changed by the V.S.S.A. All the V.S.S.A. does is vary the 7.5 daily hours by spreading the hours over fewer days so that each employee works a regularly scheduled shift of 8.57 hours. This allocation of hours is for convenience sake, as expressed in the V.S.S.A. The employee is still paid every two weeks at his hourly rate for 7.5 hours a day as if he had worked these hours in that manner. The fact that he actually works a shift (8.57 hours) which is 1.07 hours longer than a normal 7.5 hour day makes no difference to his actual compensation. He is paid for 75 hours work every two weeks. |
| Whether or not he works on a designated paid holiday, he is paid the same base amount for a two-week period in which a designated paid holiday occurs as in a two-week period in which no holiday occurs, i.e. 75 hours, continuing the fiction recognized in the V.S.S.A. of the employee working 7.5 hours daily over a 10-day period, even though he actually works 8.57 hours over a shorter period of time.9 |
[22] The flaw in the approach adopted by the Applicant is that the Respondent indeed receives pay for 1.07 hours above the regular 7.5 hours in his bi-weekly pay cheque. This is because he works on the basis of 8.57 hours on any given day and is paid for his labour. However, he receives the same hourly rate as if he worked 7.5 hours a day. He receives no more nor less than the employee who is not subject to variable shift scheduling.
[23] According to the argument of the Applicant, the Respondent will lose 1.07 hours from his regular pay when he works on a designated pay holiday. Surely this is not the intention of the collective agreement and collateral agreements. Indeed, the preamble to the general terms of Clause M-40 of the Master Collective Agreement makes it clear that the implementation of the variable shift scheduling arrangement is not to result in any extra cost to the parties:
| It is agreed that the implementation of any such variation in hours shall not result in any additional expenditure or cost by reason only of such variation.10 |
[24] Surely this means that the implementation of this agreement is not to result in any extra cost to the employee, by the indirect reduction of compensation for his labours.
[25] The Applicant has not established that the decision is patently unreasonable, in the sense of being "clearly irrational" or "simply ridiculous".
[26] The Application for Judicial Review is dismissed with costs.
"E. Heneghan"
J.F.C.C.
OTTAWA, ONTARIO
December 4, 2000
__________________
1Applicant's Record, pages 135 and 139
2Applicant's Record, page 205
3Applicant's Record, page 209
4Applicant's Record, page 240
5Applicant's Record, page 241
6Applicant's Record, page 241
7Applicant's Record, page 32
8Applicant's Record, page 296
9Adjudicator's Decision, page 26.
10Applicant's Record, page 135
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