Arbitrator upholds change to vacation entitlement policy
Part-time community health workers employed at home support centres in Kelowna and Salmon Arm, B.C., filed a joint grievance represented by the British Columbia Government and Service Employees Union (BCGEU) and the United Food and Commercial Workers (UFCW) respectively. Of concern was that the part-time home care staff were not receiving the vacation entitlement they were owed.
The employer’s previously longstanding practice of granting vacation based on length of service was changed in 2011 in Kelowna and 2013 in Salmon Arm. Instead, the centres pro-rated the vacation time. As a result, part-time employees experienced a significant drop in the number of days received.
One example: Donna Stubbe, a part-time health worker who had been employed at the Kelowna site since 1992, received four fewer vacation days than she expected. Stubbe worked, on average, 35.5 hours per week as part of a fixed schedule. Based on the previous system of granting vacation time on the basis of continuous service, she received 25 days off in 2006, 30 days in 2008 and expected to receive 30 days in 2011.
But after her employer changed its policy in 2011, she received 26 days that year
Vacation entitlement should be calculated based on past service, according to the language of the collective agreement, the unions argued. Based on the provisions, vacation time — not vacation pay — should be pro-rated.
The employer argued the opposite, saying: "If all part-time and full-time (staff) are entitled to the same number of vacation days but accrue their vacation pay based on straight-time hours worked, the result is that they end up with some amount of vacation time being unpaid."
What is more is that, being a home support centre, vacation scheduling directly impacts users of the service, whom are typically elderly, frail individuals, the employer said. Therefore, standards dropped and "certain clients were not experiencing the desired consistency of care."
While neither the unions nor employer mentioned the particulars of the vacation clause during negotiations at the bargaining table, arbitrator Joan Gordon said her focus was on the language and structure of the collective agreement.
Both sides of the fence hold compelling arguments, she said, adding: "How, then, is one of these two linguistically permissible interpretations to be preferred?"
Citing a previous precedent-setting decision Gordon said that, when faced with a choice between two acceptable options, arbitrators must focus on the purpose and reasonableness of each argument.
That said, Gordon sided with the employer and ordered its change to the vacation entitlement policy be upheld.
In order for benefits to be pro-rated, they must be made proportionate to that which is the measure of full benefit entitlement, Gordon concluded. As such, she determined the measuring stick to be a regular community health worker who works 40 hours per week.
"All community health workers are entitled to be placed at the appropriate rung on the vacation leave ladder based on their years of continuous service. The number of work days of vacation connected to each rung on the ladder constitutes the full measure of entitlement for regular community health workers working 40 hours per week," she explained. "The pro-rata rule is then applied for regular part-time workers, and their proportionate share of the full measure of vacation days is calculated based on their fewer hours worked as compared to a regular full-time worker working 40 hours per week. Then, the vacation pay associated with that vacation leave entitlement is calculated under (the collective agreement)."
Therefore, she dismissed the grievance.
Reference: Health Employers Association of British Columbia, representing Interior Health Authority, and the British Columbia Government and Service Employees Union and United Food and Commercial Workers Union. Joan M. Gordon — arbitrator. Jen Perry for the employer, Esther Ostrower for the union. Jan. 30, 2014.
