Seeking a Balance
Grievance and arbitration: The Representation Section
Employees working variable hours or shifts: Compensation for work on a Designated Paid Holiday
Despite several decisions from the Public Service Labour Relations Board, and the Federal Court of Canada (Trial Division), many Departments and separate agencies continue to violate our collective agreement articles that set out the compensation to be paid to members who work variable hours and work on a designated paid holiday. Read the King, Breau et al and Mackie decisions on the PSLRB website.
At the end of September 2006, the Treasury Board granted a series of individual grievances filed by Citizenship and Immigration Canada (now Canada Border Services Agency) employees who filed grievances against incorrect compensation for particular designated paid holidays.
Notwithstanding these victories, it has come to our attention that many members continue to have convoluted pay and reporting formulas that are applied to their right to compensation for work on a designated paid holiday. This results in some members receiving less compensation than that to which they are entitled.
According to the decisions we’ve fought for, and the terms of our collective agreements, members are entitled to be compensated at time and one half (1½) for all regular scheduled hours worked (or the applicable double (2) time rate for hours beyond the employee’s regularly scheduled hours) on a designated paid holiday.
For example, if a member’s schedule requires him or her to work 10 hours on a designated paid holiday, he or she will receive his or her regular pay for the day; that is, his or her paycheque for the two week period in which the designated paid holiday falls will not vary. In addition to receiving his or her regular pay for the day (as reflected in his or her regular bi-weekly pay), he or she is entitled to additional compensation of 10 hours at time and one half.
In light of Departments’ and Agencies’ ongoing refusal to abide by our collective agreements, we have devised a strategy and we need your help.
Under the new Public Service Labour Relations Act, we have some new tools that might assist us in ensuring that our members are being correctly compensated for their work on designated paid holidays:
That the locals file group grievances in the name of the PSAC within the timeframes in the applicable collective agreements after every designated paid holiday when employees are not correctly compensated (see the attachment for the recommended procedure); and
Upon becoming aware of any instances of incorrect compensation, we request that our locals and/or Components notify the Collective Bargaining Branch within two weeks of the designated paid holiday and the PSAC will file a policy grievance on this issue.
Any member who is required to “repay” any hours, or who is not receiving the correct compensation, should immediately grieve any such action as a violation of their collective agreement. Members may continue to file individual grievances if they wish, however, wherever possible the PSAC recommends that individuals grieve instead as part of the group grievances as per the attached procedure.
It is also important that members grieve each violation of the collective agreement, that is, members must grieve each designated paid holiday for which they are improperly compensated, within the time limits specified in their collective agreement.
If any Departments or Agencies who have been correctly applying the collective agreement begin recovery actions on what they consider to be “overpayments” it is of utmost importance that any such action alsobe the subject of grievances.
Recommended Procedure for Filing Group Grievances
Local shop stewards must file the grievance within the applicable time frames in the collective agreement. Download the Group Grievance Presentation Form (PSLRA s.215) on the Treasury Board web site. We recommend the following wording:
The PSAC grieves that the Employer has violated the provisions of the (insert collective agreement name here, i.e., Program & Administrative Services) including any and all relevant articles of the collective agreement or applicable legislation, by failing to compensate the group of employees listed in the attachment for the designated paid holiday of (insert date of designated paid holiday).
Corrective Action Requested:
That the group of employees listed in the attachment be paid in accordance with the collective agreement and be made whole;
A declaration of the correct interpretation of the applicable collective or applicable legislation;
A declaration that the Employer has violated the collective agreement or applicable legislation;
An order directing the Employer to comply forthwith with the declarations of the Public Service Labour Relations Board by interpreting and applying the collective agreement and any applicable legislation correctly.
In order to permit the PSAC to seek an individual remedy for the grievors, local shop stewards must prepare and complete a Form 19: Consent Of Aggrieved Employees to the Presentation Of A Group Grievance along with the grievance form above. Download this form on the PSLRB web site. In addition to the Form 19, the following information should be included:
The name, address, telephone numbers and signature of each grievor;
The date of the designated paid holiday that the each employee worked;
The hours worked by the employee on the designated paid holiday.
The local should also gather together for use at arbitration:
The time sheet demonstrating the hours worked by the grievor on the designated paid holiday; and
A copy of the pay stubs which indicate the payment received for the designated paid holiday.
Date Modified : 2010/10/13