LOU cannot be changed without 'mutual agreement': Arbitrator
When an employer changed a worker’s job title, the employee should have been paid for after-hours work but he wasn’t.
The worker, Raph Shay, was hired as a sustainability and education coordinator in June 2015, to cover for the incumbent worker in that position, Julie Clark, who was on leave.
In a letter of understanding (LOU) that accompanied the collective agreement between the Sunshine Coast Regional District (SCRD) in Sechelt, B.C., and the union, Unifor, Local 466, it detailed working conditions for the coordinator’s position.
The LOU said the job “requires a work schedule that includes day, evening and weekend shifts as a normal course.”
When Clark returned to her position in July 2016, the employer sent an email that confirmed Shay had been hired in a temporary position to run until September 2017.
On March 2, 2017, Unifor received notices from SCRD that detailed new job descriptions. “While the body of the job description will remain the same, Raph will now be called ‘water and energy projects coordinator’ in support of various key projects currently underway. Raph will now report to Dave Crosby, manager, utility services, special projects,” read the letter.
But in May, the union discovered Shay was required to attend evening meetings after 5 p.m., and he was not paid a premium. The collective agreement said "regular hours for all inside workers consist of a maximum of seven hours" between 8 a.m. to 5 p.m.
Employees who completed works after those hours were subject to being paid a premium rate, said the union.
The job description for the sustainability and education coordinator called for the worker to complete “seven hours’ work per day, Sunday through Saturday, between the hours of 6 a.m. and midnight,” which would allow for evening work to be paid only at straight time.
On June 22, Unifor grieved the treatment and asked for Shay to be paid premium hours when he worked after 5 p.m. between May 8 and May 24.
SCRD argued the job responsibilities were the same, only the name was different.
Arbitrator Richard Coleman upheld the grievance. “Shay, the water and energy projects coordinator, is not exempted by letter of understanding #10, from the restrictions of ‘regular hours for inside employees’ set out in article 11, A(a)(i). Shay is to be paid in accordance with article 11, A. (a) (i), commencing in May 2017.”
SCRD’s contention that the jobs were the same should have become part of a new negotiation, said Coleman. “If indeed Shay's job ‘requires a work schedule that includes day, evening and weekend shifts as a normal course,’ including his job in letter of understanding #10, in addition to the position currently filled by Clark, it must be by mutual agreement. Thus far, there has been no such agreement.”
By changing the job title, this sent a clear signal about the new position, according to the arbitrator.
“What may have been the same job with minor differences occasioned by the different field of water and energy was given recognition as a distinct classification, which on its face, implies a more significant difference from the original position, and most importantly, took it outside of the language of letter of understanding #10 which is explicitly limited to a different classification,” said Coleman.
“I appreciate that this may appear to be a technical and narrowly determined conclusion. But to decide otherwise would effectively allow a single party to the collective agreement to unilaterally vary the letter of understanding to now relate to two classifications: the sustainability and education coordinator plus the water and energy projects coordinator.”
Reference: Sunshine Coast Regional District and Unifor, Local 466. Richard Coleman — arbitrator. Gerry Parker for the employer. Scott Rush, Kevin Hancock for the employee. Dec. 12, 2017. 2017 CarswellBC 3481
