Union claims employer only paid half of owed compensation
The Canadian Merchant Services Guild filed both an individual and a policy grievance against Algoma Tankers alleging the employer is paying only half of what the collective agreement mandates for bereavement leave.
The grievances arose because of the way Algoma Tankers calculates compensation. The employer operates an inland shipping company on the Great Lakes of Ontario.
Officers at the company work for 30 days on the vessel and 30 days off the vessel.
Wages are calculated as "earnings per day worked." But because employees spend approximately half of their time off the vessels, half of the earnings per day worked are paid out while the employee is on the vessel and the other half is paid out while they are off the vessel.
This allows employees to receive wages every month, even though they are off duty for half the year. The employer and union refer to the actual amount of money paid out as the "calendar day rate paid," which is equal to one-half of the earnings per day worked.
The grievances were filed after Terry Holder, an officer with the company, took bereavement leave. The employer administered the bereavement leave provision on the basis of the calendar day rate paid. Bereavement leave has been administered in this manner as far back as 1998. This is the first time the union has disputed the employer’s interpretation of the bereavement leave.
The union argued Holder’s complaint was the first time an employee had taken issue with the way the employer was administering the leave. The union argued bereavement leave should be administered on the basis of the earnings per day worked.
According to the union, the collective agreement promises to compensate bereaved employees at the "basic rate for time lost." The union asserted it is absurd for the employer to suggest "time lost" would be anything less than the value of the time the employee would have earned if he had been on duty aboard the vessel. In other words, the earnings per day worked.
In Holder’s case, the union asserted he would have worked 120 hours on the vessel if he had not been on bereavement leave. However, because of the employer’s application of the leave in keeping with the 30 days on, 30 days off style of compensation, Holder was credited only 60 hours for the leave.
The union requested a declaration that the employer was violating the collective agreement by failing to properly credit employees for the leave and that Holder be credited with the 60 hours he was penalized.
The employer, however, argued nothing in the collective agreement promises employees who are on bereavement leave will be paid the amount he would have earned if he had been on the vessel. The collective agreement references a "base rate" which the employer argued more accurately refers to the calendar day rate employees are consistently paid.
Furthermore, the employer argued the past practice of the parties can be used to resolve any ambiguity.
The union is estopped from asserting this claim, the employer argued, because it has accepted the current administration of bereavement leave over several rounds of bargaining.
Arbitrator Paula Knopf called the collective agreement "unusual" in its dealing with the specific demands of a 30 days on and 30 days off schedule.
Knopf found the union was unaware of the employer’s administration of the bereavement leave as no employee had complained. Therefore, the union was not estopped from seeking enforcement of the collective agreement.
Concerning the payment of the leave itself, Knopf said, "It would be very unusual to see a collective agreement that provided for such leave to be paid at a different rate or lower level than the normal daily earning. Therefore, one would expect to see very clear language to signal that bereavement leave would be paid at a rate different than what one would normally receive during a day of work."
For this reason Knopf found the employer had been — although unintentionally — applying the leave incorrectly.
The employer was directed to compensate employees on future leaves on the basis of their total time lost at the rate of his basic earnings per day worked and Holder’s grievance was upheld.
Reference: Algoma Tankers Limited and the Canadian Merchant Services Guild. Paula Knopf – arbitrator. Wes Newton for the employer, Joanne McMahon for the union. Feb. 4, 2015.
