Agreement must prevail over job description: Arbitrator
When certain clerks at a Beeland Cooperative store in Tisdale, Sask., worked alone without a manager on duty, they were paid a premium.
But according to the collective agreement, only those workers designated as “clerk one” received the $1-per-hour premium, not “clerk two” employees.
The union, the Retail, Wholesale, and Department Store Union (RWDSU), Local 496, filed a grievance against the practice.
Trinity Tyacke, a clerk two at the location known as a C-store (providing convenience store and gas bar services), often did supervisory duties during her regular shifts, she testified.
As part of her frequent duties, Tyacke opened the store at 5:15 a.m. Tyacke regularly shut off the alarm system, removed cash from the safe and counted the float, started the food and coffee preparation and arranged for shift relief if another employee phoned in sick.
Some of these actions were supervisory in nature, she said.
During closing duties, there was no manager on duty, said Tyacke. A clerk two typically cashed out, placed money into the safe, locked up the cigarette display and lotto tickets areas, set the alarm and locked the store for the night.
When clerk one employees performed these same functions, said Tyacke, they were paid the premium.
However, little difference existed between the duties of a clerk one and a clerk two, according to Tyacke.
Darlene McEwan, chief union steward and a clerk two, testified that between 2014 and 2018, she was paid the premium whenever the head cashier was absent.
Clerk two employees did not receive the premium because supervisory duties were part of the job description and, therefore, not eligible to be considered a premium, said Todd Svenson, Beeland general manager.
Clerk one workers received the extra pay because supervisory duties were not listed in their job descriptions, he said.
Clerk two employees also made more money per hour than clerk one workers, said Svenson.
Those employees earned $17.64 after three years, compared to $17 per hour for those classified as clerk one.
Arbitrator Allen Ponak allowed the grievance.
“There is no doubt that many (if not all) of the duties for which clerk twos are requesting a premium under appendix A are included in the clerk two job description. The problem for the employer is that the job description was created unilaterally by management and is not part of the collective agreement. The employer has the right to create job descriptions and there is no requirement that it involve the union or formally link the job descriptions to the collective agreement. However, if there is a conflict between the job description and the collective agreement, the collective agreement must prevail in the same way that collective agreement language will supersede a unilaterally created rule or policy,” said Ponak.
And because an exemption was not written into the agreement, the employer’s argument doesn’t hold up. “In the current case, the collective agreement specifies that employees who are carrying out supervisory duties receive a premium. The contract does not say that the premium is not applicable if supervision is part of an employee’s job description. It was undisputed that clerk twos in the C-store are effectively the ‘section supervisor’ when there are no managers on duty. Therefore, they are entitled to the $1-per-hour premium under appendix A,” said Ponak.
Reference: Beeland Cooperative and Unifor, Local 127. Allen Ponak — arbitrator. Robert Frost-Hinz for the employer. Gary Bainbridge for the employee. May 24, 2019. 2019 CarswellOnt 8314
