No premium holiday pay allowed for part-time workers

Four Nova Scotia part-time workers who agreed to work holiday relief shifts are not entitled to holiday premium pay under the collective agreement, an arbitrator has ruled.

The Meadows Home for Special Care is a not-for-profit long-term care facility in Yarmouth, N.S. Its collective agreement contained a provision for holiday premium pay that required the facility to pay employees double their regular rate of pay if they were required to work on a statutory holiday “which the employee was scheduled to be off and has received less than 72 hours’ notice.” In addition to the premium pay, employees in such circumstances were entitled to a full day off later in lieu of the holiday.

Employees given 72 or more hours’ notice to work on a holiday received time and one-half along with a day off later.

The care facility also employed casual and part-time employees whose purpose was “to relieve employees in regular or temporary positions who are on approved leaves such as vacation, bereavement, sick leave, etc., or to respond to workload demands or to fill temporary positions.” The collective agreement stated that these employees “may work without advance notice and there shall be no financial penalty on the employer.”

Part-time and casual employees signed availability agreements that indicated their availability for “relief shifts” — “deficiencies in the schedule after posting” caused by short-notice absences of employees originally scheduled to work.

Part-time employees received time off according to mutual agreement between them and the facility, but otherwise could be assigned any shifts.

On Dec. 26, 2018, two part-time continuing care assistants were requested to work relief shifts for the Boxing Day holiday after employees who had been scheduled were absent. Due to the short notice of the absences, the employees had less than 72 hours’ notice but were asked if they wanted to work the shifts according to the list of available part-time employees. Both had indicated that they were available to work on Boxing Day and received time and one-half for the shift.

On Feb. 18, 2019, two other part-time employees — a food-service worker and another continuing-care assistant — were asked to fill in on relief shifts for the Family Day holiday as they had indicated their availability for the day on the part-time availability agreement. As with the others, they received less than 72 hours’ notice due to the nature of the shift but were paid time and one-half.

The union filed a grievance claiming that all four employees should have received double-time for working the holidays as per the collective agreement’s holiday premium-pay provision. The care facility disagreed, arguing that the holiday premium-pay provision didn’t apply to casual and part-time employees because the collective agreement stated that they could work relief shifts without advance notice or penalty to the employer.

The arbitrator found that some of the conditions for holiday premium pay were met — they were established shifts on recognized holidays for which the employees received less than 72 hours’ notice. However, one of the conditions was for the employee to be required to work. The care facility needed employees to fill in for established shifts on the holidays that had become vacant, but no particular employee was required to fill the shifts. The part-time employees were asked if they could work the relief shifts and the employees, who had indicated their availability and willingness to work the shifts, consented. Had they refused, there would have been no consequences and the facility would have proceeded to the next available employee on the list, said the arbitrator.

Since the part-time employees were not required to work the holiday relief shifts and were willing to work them, the holiday premium-pay provision did not apply, said the arbitrator in dismissing the grievance.