Business Rep Al Cyr Keeps a Sharp Eye Out For Our Members
Business Representative Al Cyr spied a gross error in the way Finning calculated vacation pay for hourly employees in British Columbia.
In January of 2008, the Company sent out a letter to all hourly employees stating the vacation pay adjustment were in error. They asserted all employees were over-paid for 2007 and the Company would recalculate the vacation pay and make the adjustments accordingly. Brother Cyr requested the employer explain how the vacation pay adjustment (vacation top-up) was calculated.
When Brother Cyr obtained the formula, he saw, right away, the Company was calculating the vacation pay incorrectly. They were not calculating vacation pay on gross earnings. They subtracted straight time earnings from gross earnings and applied the vacation percentage to the difference to calculate vacation top-up.
The collective agreement states that Employees shall receive the entitlement weeks vacation with pay or the applicable percentage of gross earnings for the calendar year, which ever is greater. The principle of vacation top-up arises out of the words “whichever is greater” contained in the collective agreement. In establishing the amount of vacation top-up the employee is to receive, the total amount of vacation pay owed to each employee shall first be calculated using the two methods contemplated in the collective agreement.
(I) On the basis of the percentage entitlement of gross earnings in the calendar year
(ii) On the basis of weeks of vacation of the employees entitlement.
The vacation pay adjustment, if any, that is owed to an employee shall be calculated by subtracting the dollar amount of vacation pay the employee actually received in the calendar year from the vacation pay entitlement.
The Union had numerous meetings with the Company regarding the vacation pay calculation. We showed countless examples, says Cyr, to the payroll manager and human resources manager.
The examples demonstrated clearly the discrepancy between the vacation pay calculation, as per the Collective Agreement and the amount the Company had paid.
The Company took the position their calculations were correct and there would be no change in the way vacation pay was calculated. In response, Business Representative Cyr filed a policy grievance.
Brother Cyr researched the case law and found three cases supporting the examples he put forth to the Company on vacation pay. In one of the cases, the arbitrator explained in detail how the vacation pay was calculated and how the vacation pay top-up was paid out. After the Company reviewed the cases they agreed to meet and discuss how to fix the problem.
Through a series of meetings, it was agreed the Company would go back five years to 2003 and recalculate for those employees on the seniority list. In addition, they would recalculate for those employees who had transferred from BC to Alberta and those employees who transferred from hourly to salary as well.
Brother Al Cyr told Northwest News it was a long drawn out process and there was a lot of work involved but it has been very satisfying considering the outcome.