Double-dipping prohibited; overtime estimate not excluded

Holiday pay, overtime pay not the same: arbitrator

Double-dipping prohibited; overtime estimate not excluded

An Ontario worker whose hours worked on a holiday helped put his total hours over the overtime threshold deserves premium pay rates for both the holiday and the extra hours on his total, an arbitrator has ruled.

Cochrane Highway Maintenance is a road maintenance services company based in Cochrane, Ont. The company has a contract with the Ontario Ministry of Transportation to maintain the roads in the area that are under provincial jurisdiction.

The collective agreement provided for overtime pay at a rate of time and one-half for hours worked beyond 80 in each two-week period. Employees were also entitled to the same rate of pay for working on a public holiday.

Otherwise, employees were entitled to holidays off with pay under the Ontario Employment Standards Act, 2000 (ESA).

The collective agreement also contained a provision prohibiting “duplication or pyramiding of any premium payments or compensating leave,” defining pyramiding as receiving “multiple pay premiums for the same hours worked.”

Thanksgiving — which is a public holiday in Ontario — fell on Oct. 14 in 2019. The company scheduled a particular worker whose position was that of patrol operator to work a full nine-hour day.

The worker’s last day of work for the pay period was Oct. 20 and when he had finished, he had put in a total of 89.5 hours over the two weeks.

The company paid the worker 80 hours at his straight time rate, nine hours at time and one-half for working on Thanksgiving, and another half-hour at the time and one-half rate for the remaining bit of overtime.

The union grieved the calculation of the worker’s pay, arguing that the worker in fact put in nine and one-half hours of overtime for the pay period, not just a half-hour. It argued that there was nothing in the collective agreement that prevented the hours worked on the holiday from being counted as part of the total hours worked over the pay period for determining overtime.

The rule against pyramiding didn’t apply because the holiday pay rate and the overtime pay rate were separate things — the former designed to compensate employees for working on a public holiday and the latter for working more than 80 hours in a biweekly period, the union said.

The company countered with the argument that the ESA states that hours worked on a public holiday are not to be included in calculations for overtime pay and the collective agreement didn’t provide for anything more than the ESA standard.

The arbitrator noted that the hours worked on Oct. 14 fell under the holiday pay rate and that even without those hours counted, the worker put in more than 80 hours over the two-week period, entitling him to overtime pay.

As for the no-pyramiding clause, the arbitrator found that it didn’t apply under the circumstances. The union wasn’t seeking multiple pay premiums for the same hours worked.

Instead, it was seeking premiums for the hours worked on the holiday and the hours worked that put the worker past the 80-hour threshold — which the worker worked on the last day of the pay period and were not the same, said the arbitrator.

“The grievance before me seeks the overtime premium for different hours than were worked to attract the holiday pay premium,” said the arbitrator. “It is not just different hours; it is different days in a different week.”

The arbitrator noted that there were cases involving collective agreements that specifically addressed situations where an employee sought to include hours paid at overtime rates under one provision in calculating overtime under another provision. However, the collective agreement here did not.

The arbitrator upheld the grievance and ordered Cochrane Highway Maintenance to compensate the worker for overtime worked on Oct. 20, 2019.

Reference: OPSEU, Local 649 and Cochrane Highway Maintenance. Matthew Wilson — arbitrator. David Defrancesco, Deborah Crawford for employer. Dan Hales, Mike Lizotte for employee. Aug. 11, 2020. 2020 CarswellOnt 11535

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