In September 2018, an arbitration decision determined that National Grocers Co. Ltd. (owned by Loblaws Inc.) had to pay overtime to its truck drivers who worked in excess of 44 hours per week, in accordance with Ontario’s Employment Standards Act (ESA). This decision came as the resolution of a grievance that was filed in 2014 by one of the drivers, Trevor Enos, who was represented by and a member of the union UFCW 1006A.
At the end of a four-year hearing, the union was able to make the winning argument that its membership was not excluded from the legislative requirements of the ESA. The employer (National Grocers Co. Ltd/Loblaws Inc.) argued, unsuccessfully, that the truck drivers were not bound by the overtime provisions of the ESA. They took the stance that the work done by the workers would fall under a different category and should be compensated under the jurisdiction of highway transport drivers. The arbitrator, Gordon F. Luborsky, sided with the union, and this meant that the employer would have to pay the overtime as ordered.
By September 2019, however, as identified in this CBC report, the overtime had not been paid out. Instead of settling the outstanding compensatory debt, Loblaws Inc. filed for a judicial review of the decision with the Ontario Divisional Court. While the report does not provide an explanation for the employer’s actions, the overtime payments owed to the employees, if dated back to 2014, would be significant. Loblaws Inc. has claimed to have set aside the funds it may need to pay the employees out.
It’s possible this case may not be about the money though.
While the monetary (overtime pay) issues seem to be the priority, this case provides us with some insights into both the legislative and procedural matters that come with administering a collective agreement.
As noted in the CBC article, employers cannot abdicate out of the law. If a collective agreement is ‘silent’ on a particular item, such as overtime, then the minimum standards of the ESA would, typically, apply. The question that appears to arise from this case is whether or not the ESA is the correct, applicable legislation. It makes sense that the employer would file for judicial review if the employer believes that the arbitrator erred in his decision about which piece of legislation does and should apply.
In the meantime, union representatives will continue to file grievances, as the Teamsters have done in Ottawa, based on similar circumstances, and the employers will continue to not pay. Until this matter is resolved by the penultimate, or even ultimate, third party, it seems that both sides to this dispute will continue as they have to date.
Discussion Questions:
- As the head of HR for Loblaws Inc., what steps will you put into place to prevent this from happening in the future?
- As the chief negotiator for UFCW, what language will you want to use to negotiate into the collective agreement at the next round of collective bargaining?
- As a member of the bargaining unit in this case, what do you think would be a ‘fair’ result for you?
