Collective agreement interpretation turns on adage – “words have to have meaning”

A recent arbitration decision provides valuable insight into the legal approach to collective agreement interpretation.  Although such agreements are often complicated, Arbitrator Noonan’s reading of the collective agreement in Ottawa Hunt and Golf Club Limited and Hospitality Services Trade Union (February, 2014) shows the value of the most basic rule of legal interpretation – the words chosen by the parties must have meaning.  This point was underscored by Emond Harnden’s own Sebastien Huard who successfully argued this case on behalf of the employer.        

In Ottawa Hunt and Golf Club Limited and Hospitality Services Trade Union, the employer was the operator of a four season recreational facility providing golf and curling, as well as wedding and banquet facilities.  Until 2011, the employer’s practice was to schedule and pay its servers and bartenders for four hour shifts, even when the shift actually worked was less than four hours.  In 2012, based on financial considerations, the employer changed its practices and began assigning three hour shifts based on its operational needs, which would change throughout the year.  The union grieved this change in practice and took the position that the collective agreement provided a minimum shift requirement of four hours.  It relied on article 13.05 of the collective agreement:

13.05   Once a full-time or part-time employee reports to work for his regularly scheduled shift, without having been notified not to report to work pursuant to Article 13.06(b), he shall receive guaranteed work or pay in lieu of work, for a minimum of four (4) hours.

The issue before Arbitrator Noonan was whether this language did in fact provide a minimum shift length guarantee.  The arbitrator interpreted this provision to mean that where an employee does not get notice from the employer that his or her shift has been cancelled, and where that employee attends work for a regularly scheduled shift, that employee is guaranteed four hours of work or pay in lieu. 

The next issue was whether the grievors had “regularly scheduled shifts” such that the language in article 13.05 was engaged.  The arbitrator found that in the case of servers and bartenders there was no regularity to their shifts.  The days worked, the times of day, and the shift lengths all varied considerably both on a day-to-day and week-to-week basis.  The arbitrator stated:

I do not read “regularly scheduled shift” to mean whatever might be assigned any given week – however irregular – in my view that would be simply a “scheduled shift” and those were not the words chosen by the parties.  They chose the phrase regularly scheduled shift, and that has to have meaning. (emphasis in the original) 

Based on the plain meaning of the collective agreement language, Arbitrator Noonan held that unless the employees had regularly scheduled shifts, article 13.05 did not apply.  As such, the collective agreement did not prevent the employer from assigning shifts of less than four hours to the grievors in question.  The grievance was dismissed.

For further information, please contact Sébastien Huard at (613) 940-2744.

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