Canada Employment and Immigration Union - https://ceiu-seic.ca/en/collective-agreement-interpretation/adjudicator-supports-grievors-on-variable-hours-of-work-case/
October 27, 2008

Adjudicator supports grievors on variable hours of work case

Work can begin before 7:00 am, end after 6:00 pm

Many CEIU members are on variable hours of work schedules and until recently the employer restricted start and finish times. Members were not allowed to begin work before 7:00 am or finish after 6:00 pm, but an adjudicator recently allowed grievances by CEIU members in New Brunswick who challenged these restrictions.

The case before the adjudicator turned on the hours of work provisions of the PA collective agreement. Article 25.06 deals with day work and restricts the hours of work to the period between 7:00 am and 6:00 pm:

Day Work

25.06 Except as provided for in clauses 25.09, 25.10 and 25.11:

(a) the normal work week shall be thirty-seven and one-half (37 1/2) hours from Monday to Friday inclusive,

and

(b) the normal work day shall be seven and one-half (7 1/2) consecutive hours, exclusive of a lunch period, between the hours of 7 a.m. and 6 p.m.

However, the article that permits variable hours of work reads:

25.09 Variable Hours

(a) Notwithstanding the provisions of clause 25.06, upon request of an employee and the concurrence of the Employer, an employee may complete the weekly hours of employment in a period of other than five (5) full days provided that over a period of fourteen (14), twenty-one (21) or twenty-eight (28) calendar days, the employee works an average of thirty-seven and one-half (37 1/2) hours per week.

(b) In every fourteen (14), twenty-one (21) or twenty-eight (28) day period, the employee shall be granted days of rest on such days as are not scheduled as a normal work day for the employee.

(c) Employees covered by this clause shall be subject to the variable hours of work provisions established in clauses 25.24 to 25.27.

The employer had argued that the phrase “Notwithstanding the provisions of clause 25.06” in 25.09(a) should be interpreted narrowly. In its view, only those parts of 25.06 that dealt with the number of hours worked in a day or a week were changed by article 25.09 and not the requirement that work be scheduled between 7:00 am and 6:00 pm.

The union argued that such a narrow interpretation was wrong and that variable hours of work could begin before 7:00 am and finish after 6:00 pm. In his decision, the adjudicator agreed with the union’s interpretation, saying “It seems clear to me that the collective agreement’s restriction of a normal workday between the hours of 7:00 a.m. and 6:00 p.m. does not apply to working variable hours…”

While this case is a clear victory, it does not affect the power of the employer to deny requests for such schedules. What it does do, in the words of the adjudicator, is change how the employer approaches the issue: “when the employer is presented with a request from an employee for variable hours of work, the employer is not allowed to consider, when it accepts or refuses the request, that it contravenes the collective agreement if part of the requested hours fall outside the 7:00 a.m. to 6:00 p.m. period.”

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