A-110-77
Attorney General of Canada (Applicant)
v.
Peter Treacy (Respondent)
Court of Appeal, Jackett C.J., Urie J. and
MacKay D.J.—Ottawa, June 15, 1977.
Judicial review — Public Service — Application to set aside
decision of adjudicator finding employer had not posted list as
required and hence had not discharged onus of proving equal
opportunity for overtime employment — Claim that adjudica
tor had erred in law in interpretation of "equal opportunity"
— Misinterpretation by both employer and adjudicator
Federal Court Act, s. 28.
The applicant, in a dispute about the interpretation of the
phrase "equal opportunity" as found in a collective agreement,
and as applied by the agreement to available overtime work,
applies for judicial review of an adjudicator's decision. The
agreement provided that seniority lists be established and that
overtime opportunities be offered to those who had the fewer
number of opportunities. Should this procedure be neglected,
the agreement required the employer to prove equal opportu
nity. Certain situations carried a higher premium rate for
overtime work than others. The regular shift workers were
requested by notice to work overtime on a "higher premium"
day, and the other workers were requested to report for over
time duty, at the lower premium rate, on their next rotation
day. The respondent was one of the latter group. The questions
of whether the employer had discharged his onus and the
definition of the term "equal opportunity", as found in the
agreement, were to be determined.
Held, the application is dismissed. Paragraph 15.07 of the
collective agreement, read with certain other provisions of the
agreement, contains a definition of equal opportunity that is
prima facie dependent on the relative number of overtime
opportunities that had been had by the various employees
involved. The employer's attempt to discharge his burden bore
no relationship to such definition and therefore, as a matter of
law, the adjudicator was right in concluding that the employer
had not discharged his burden. Both the applicant, in his
argument, and the adjudicator, in his reasoning refuting that
argument, however, relied on an unacceptable dictionary defini
tion of the words "equal opportunity". It is clear that the
parties chose to make the test of equal opportunity the number
of "overtime opportunities" that the particular employee has
had prior to the day in which overtime work is being offered.
The test is neither the "value of the work" as the adjudicator
thought nor is it the offering of overtime work based on a
calculation to result in lower premium rates, as the employer
advocated. The order in which employees are chosen for offers
of overtime work should be determined as per the agreement
regardless of whether the employees so chosen would be en
titled to a higher or lower premium rate.
APPLICATION.
COUNSEL:
J. P. Malette for applicant.
Maurice W. Wright, Q.C., for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady & Morin, Ottawa, for respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a decision of an adjudicator under section
91(1) of the Public Service Staff Relations Act,
R.S.C. 1970, c. P-35, allowing a grievance of the
respondent with respect to the interpretation and
application of a collective agreement.
The grievance has to do with provisions in the
collective agreement concerning the right of an
employee to be offered "overtime work"; and a
significant fact is that overtime work, in some
circumstances, carries "premium" rates of pay at
time and a half and, in other circumstances, car
ries doubletime "premium" rates.
The relevant provisions of the collective agree
ment will be set out in an Appendix to these
reasons when they are transcribed. Paragraph
15.05 requires that "For the purpose of equalizing
opportunity to perform required overtime work"
the employer must maintain seniority lists indicat
ing "the overtime opportunities offered each
employee". Paragraph 15.06 requires that "an
employee . .. be given equal opportunity to per
form the overtime work in accordance with the
list ...." Paragraph 15.07 defines "Equal oppor
tunity for overtime work" to mean "that once an
appropriate list is established, overtime assign
ments will be offered to persons on the list who
have had a fewer number of overtime
opportunities ...."' Paragraph 15.13 provides
that, when an employee claims to have been
"bypassed" re overtime work, the burden of prov
ing otherwise shall be on the employer if the
required lists were not duly posted. Paragraph
15.18 entitles an employee who has been so
"bypassed" to be paid an amount equal to the
amount that he would have earned had he worked
overtime "on the missed opportunity".
In this case no list was posted as required by
paragraph 15.05.
On May 18, 1976, the employer posted a notice
reading as follows:
Those Employees who would normally be scheduled for regular
duty on Monday, May 24th, 1976, are requested to report for
Overtime duty on that date.
Employees whose Rotation Day would normally fall on May
24th, 1976, are not to report for duty on that date, but are
requested to report for Overtime Duty on the date to which the
Rotation Day moves.
It is common ground that the respondent is an
employee who did not fall within the request con
tained in the first paragraph of this notice and who
was expressly prohibited, by the second paragraph,
from working on May 24. It is also common
ground that, if the respondent had worked over
time on May 24, he would have been entitled to
doubletime "premium" rates but, if he accepted
the invitation to work overtime on his next "Rota-
tion Day", he would only be entitled to premium
rates at time and a half.
As I will find it necessary to express disagree
ment with some of the reasons given by the
Adjudicator, the substantive part of those reasons
will be set out in an appendix to these reasons
when they are transcribed.
As I understand the Adjudicator's decision, he
allowed the grievance and ordered payment under
paragraph 15.18 of the collective agreement
because
(a) as no list had been posted as required by
paragraph 15.05, by virtue of paragraph 15.13,
' A "tie" is broken by reference to position on the list.
the burden was on the employer to show that the
respondent was not "bypassed in the administra
tion of equal opportunity" in respect of the
overtime offers of work for May 24, 1976, and
(b) the employer had failed to discharge that
burden.
It is common ground that such burden did fall
on the employer. Furthermore, it seems to be clear
that the only attempt to discharge that burden is
that that is reflected in the Adjudicator's reasons
as follows:
It is the employer's contention, however, that an equal opportu
nity was granted all employees, since those not requested to
work on the holiday (such as the grievor) were requested to
work on their next rest day.
The Adjudicator asked himself "Was the request
to work on his next rest day the granting of an
`equal opportunity' for overtime work?" He
answered the question in the negative and his
decision was the logical result.
I agree with the reasoning of the Adjudicator to
the extent that I have outlined it. As, however, I do
not accept the reasoning whereby he rejected the
employer's attempt to discharge the burden of
proof, I must explain why I agree in law with his
conclusion on the facts as he found them, which
are uncontested.
In my view, paragraph 15.07 of the collective
agreement, read with certain other provisions of
the agreement, contains a definition of "equal
opportunity ..." for the purposes of that agree
ment, which definition is dependent prima facie on
the relative "number of overtime opportunities"
that had been had by the various employees
involved; and the employer's attempt to discharge
his burden in this case bore no relationship to such
definition. That being so, in my view, as a matter
of law, the Adjudicator was right in concluding
that the employer had not discharged his burden.
My difficulty with the position taken by the
employer, and the line of reasoning into which the
Adjudicator was led in attempting to refute it, is
that they both seem to be based upon a dictionary
definition of the words "equal opportunity" that is
not acceptable for purposes of the present agree
ment when paragraph 15.07 is read with para
graph 15.18. In my view, it is clear that the parties
have chosen, presumably for practical reasons, to
make the test of equal opportunity the number of
"overtime opportunities" that the particular
employee has had prior to the day in respect of
which overtime work is being offered. As I see it,
the test is not the "value of the work" as the
Adjudicator seems to have thought, and it was not
in accordance with the agreement for the employer
to make his offer of overtime work based on a test
that was calculated to result in lower premium
rates. As I read the agreement, having only the
facts of this case in mind, the order in which
employees are chosen for offers of overtime work
should be determined in accordance with the terms
of the collective agreement regardless of whether
the employees so chosen would be entitled to the
higher or lower "premium" rates of pay for such
work.
In my opinion the section 28 application should
be dismissed.
APPENDIX
«A„
Parts of Collective Agreement
15.05 Posting of Lists
For the purpose of equalizing opportunity to perform
required overtime work, the Employer shall post and maintain
appropriate lists of employees in order of seniority, applicable
to each postal installation. Such lists shall indicate the overtime
opportunities offered each employee.
15.06 Eligibility
Where less than a full complement of employees is required
to work overtime, an employee will be given equal opportunity
to perform the overtime work in accordance with the list on
which his name appears.
15.07 Definition of Equal Opportunity
Equal opportunity for overtime work shall mean that once an
appropriate list is established, overtime assignments will be
offered to persons on the list who have had a fewer number of
overtime opportunities until sufficient employees have been
obtained to fulfil the requirements. When there is more than
one employee who has had a fewer number of overtime oppor
tunities (as mentioned above), overtime assignments will be
offered to such employees in the descending order of the
appropriate list. Equal opportunity entails no obligation on the
part of the Employer for equal distribution of overtime hours
worked.
15.08 Order of Priority
In the application of clause 15.07, overtime work will be
offered as follows:
(a) To employees on duty who normally perform the work on
which overtime is required in an office or on a particular
shift within an office, or, where applicable, in a division or
section of an office in descending order of the appropriate
list.
(b) To employees scheduled to work their regular shift when
the overtime is required immediately prior to that shift.
15.13 Failure to Post
When an employee claims to have been bypassed in the
administration of equal opportunity, the burden of proving
otherwise shall be the Employer's if it is shown that the
overtime lists required by the Agreement were not duly posted.
15.18 Penalty for Bypassing
If an employee alleges that he has been bypassed in adminis
tering equal opportunity and such allegation is substantiated,
he shall be paid an amount equal to the amount he would have
earned had he worked overtime on the missed opportunity.
« B »
Adjudicator's Decision
The evidence is that for the past four or five years the
employer at the grievor's location has requested "blanket over
time" where overtime was needed. This was done by placing a
notation in the order book requesting all employees in the
division to work overtime. The usual response to this request
has been such that the employer's needs have been met.
The employer has not, at this location, posted a list indicat
ing the overtime opportunities offered each employee. By
article 15.05 of the collective agreement, such a list is required
to be posted, but the failure to do so would not be significant
where "blanket overtime" is requested, since the opportunity
for such work would be made available to all employees
equally.
In the instant case, however, the notice setting out the
request for overtime work was not really a "blanket" offer of
overtime: it was addressed only to those who would normally be
scheduled for regular duty on the day in question. The grievor
did not come within that group, as the day involved was his
rotation day off. His claim is, then, that he was bypassed with
respect to an overtime opportunity on that day. Article 15.13
has application in these circumstances. That article is as
follows:
15.13 Failure to Post
When an employee claims to have been bypassed in the
administration of equal opportunity, the burden of proving
otherwise shall be the Employer's if it is shown that the
overtime lists required by the Agreement were not duly
posted.
Here, the employee claims he was bypassed; the employer
failed to post the overtime list contemplated by the agreement.
Therefore, the burden of proof that the grievor was not
bypassed but did have an equal opportunity, is on the employer.
This is not a case to which article 15.16, "alternative arrange
ments" applies, since it has not been shown that the system
could not be adapted to the local conditions. The method of
requesting overtime may have been in use for some time, but
that does not affect the application of the plain language of the
collective agreement.
The particular question to be determined, then, is whether
the overtime opportunity which was offered was in accordance
with the principle of equal opportunity; the burden of showing
that it was is on the employer. By article 15.06, an equal
opportunity to work overtime is to be given employees where
less than a full complement is required. Here, there was less
than a full complement required, and the opportunity to work
overtime on the day in question was restricted in the manner
indicated by the notice. It is the employer's contention, how
ever, that an equal opportunity was granted all employees, since
those not requested to work on the holiday (such as the grievor)
were requested to work on their next rest day.
Was the request to work on his next rest day the granting of
an "equal opportunity" for overtime work? In my view, it was
not, since, according to the evidence, the value to an employee
of overtime work on a rest day is not the same as the value of
work on a day which is both a holiday and a rest day. On the
evidence (which, it should be noted, is based on interpretation
of certain provisions of the collective agreement which were not
argued in any detail), where an employee works on a holiday
which is a rest day he would earn (assuming otherwise regular
attendance) a total of 64 hours' pay, whereas an employee who
works on a rest day which is not a holiday would earn (on the
same assumption) a total of 56 hours' pay. Where a list of
overtime opportunities is kept, and employees are offered work
in accordance with the list, then it may be that opportunities
would be considered to be equalized over the long run. That is
not necessarily the case under the system operated by the
employer, however; there is no assurance that the occasions on
which holidays coincide with days of rest would be equalized,
as between employees, over a reasonable period of time.
For these reasons, it is my conclusion that the employer has
not met the onus of showing that overtime opportunity was
given "in accordance with the principle of equal opportunity".
The chances to work were equal, but the value of the work
available was not equal, according to the material before me.
Accordingly, the grievance is allowed. The grievor is entitled
to be paid in accordance with article 15.18, and I so award.
* * *
URIE J. concurred.
* * *
MACKAY D. J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.