CUPE files grievance
The Canadian Union of Public Employees Local 1550 filed a grievance against the Winnipeg Regional Health Authority when the employer required workers to remain on-site or to carry a cell phone during their paid rest period.
The union argued that the employees are essentially being required to work. When an employee is required to take a cell phone with her during a paid rest period, the union said, she remains under the employer’s direction and control.
As such, the union argued these paid rest periods should be treated as overtime, because the employees are being required to work in excess of their regular hours.
The employer, however, argued that the act of carrying a cell phone during a paid rest period does not constitute work. The employer submitted case law confirming that where a collective agreement characterizes rest periods as part of the regular working hours, employees may be confined in where or how they can take those rest periods without attracting additional compensation.
The employer further argued that if employees were paid overtime for carrying cell phones or remaining on-site during their paid breaks, it would result in the pyramiding of payments, with employees being paid double time and a half.
Arbitrator Kristin Gibson agreed there was no requirement under the parties’ collective agreement for the employer to make any additional payment to workers required to carry a cell phone or pager during their paid rest periods.
However, Gibson also agreed with the union’s characterization that any work performed during the paid rest period constitutes overtime.
"As Article 1802 deems the rest periods to be part of the regular hours of work, if an employee works through a rest period they are in fact working ‘in excess of’ the daily hours of work as they are clearly working 20 minutes more than they would work if they were able to take their rest breaks," Gibson said.
The employer submitted that the workers’ pay for a regular shift — which includes the paid rest period — should count toward this overtime payment. If employees were to be paid overtime for work done during a paid rest period, the employer argued, they would essentially be paid twice.
The union, however, argued there would be no pyramiding of payments because the compensation for the paid rest period is for a different purpose than the overtime compensation for work done during a paid rest period.
Gibson agreed with the union, ruling employees who performed work during their paid rest period were entitled to overtime payment in addition to payment for regular hours. So while the employer is not required to make any additional payment to employees who are required to carry a cell phone or pager during their paid rest period, any employee who is required to work during that paid rest period will be entitled to overtime in addition to the regular wage rate.
Accordingly, the grievance was allowed in part.
Reference: Winnipeg Regional Health Authority and the Canadian Union of Public Employees. Kristin L. Gibson —
arbitrator. Keith LaBossiere for the employer, Kathy McIlroy for the union. May 19, 2015.
