In a decision dated September 27, 2018, Arbitrator Luborsky determined that 272 UFCW Local 1000A members were improperly denied overtime by National Grocers Co. Ltd. ("National Grocers") for hours worked in excess of 44 hours a week, dating back to August 1, 2010.
The decision arises from a grievance filed by the UFCW in August 2014, alleging that National Grocers violated the Employment Standards Act (the "ESA") by failing to remit overtime wages for hours worked in excess of 44 hours in a week. Arbitrator Luborsky considered, among other things, the union's argument that s. 5(1) of the ESA voided the collective agreement's 60-hour-a-week overtime threshold, in favour of the 44-hour threshold established by s. 22(1) of the ESA. National Grocers argued that the truck drivers' work is exempt from s. 22(1) due to special overtime exemptions applicable to truck drivers under s. 18 of Ontario Regulation 285/01, and therefore, the collective agreement's 60-hour overtime threshold applied.
Arbitrator Luborsky agreed with the UFCW. After acknowledging the ESA's remedial purpose and the s. 5(1) prohibition against contracting out of its entitlements, he determined that the truck drivers were presumptively entitled to overtime pay for work in excess of 44 hours in a week under s. 22(1) of the ESA. Arbitrator Luborsky then determined that National Grocers had the onus of defeating that presumption, which it failed to do.
Specifically, he found that neither National Grocers nor its parent company, Loblaws Inc., could establish it qualified for an exemption from the 44-hour overtime threshold under s. 18 of Ontario Regulation 285/01. Accordingly, Arbitrator Luborsky concluded that the provision of the collective agreement providing for a lesser overtime entitlement than provided by the ESA is void, and that the ESA minimum entitlement is incorporated into the agreement by operation of law.
Arbitrator Luborsky remitted the matter back to the parties to resolve the issue of an appropriate remedy.
The decision is a decisive victory for UFCW Local 1000A and a helpful precedent for workers seeking to enforce the ESA's minimum entitlement. Arbitrator Luborsky's analysis makes clear that employers bear the burden of proving an exemption from the ESA's minimum entitlements, and exemptions from the ESA will be narrowly construed.
Jeff Andrew represented the UFCW in this proceeding.