J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LABOUR STANDARDS ACT, BEING CHAPTER L-1 OF THE REVISED STATUTES OF SASKATCHEWAN, 1978 AND IN THE MATTER OF THE CLAIM OF THE LABOUR STANDARDS BRANCH OF THE DEPARTMENT OF LABOUR FOR UNPAID WAGES BETWEEN: THE CITY OF REGINA and MINISTER OF LABOUR, LABOUR STANDARDS BRANCH and ALBERT MORGAN RESPONDENTS J.R. McLellan for the applicant G.J. Moran for the director of Labour Standards JUDGMENT LAWTON J. March 23, 1994 The Director of the Labour Standards Branch of theDepartment of Labour issued a certificate pursuant to s. 60 ofThe Labour Standards Act, R.S.S. 1978, c. L-1 (the "Act"),stating that the City of Regina (the "City") owed its transitemployee, Albert Morgan, $511.08 in wages. At the hearing,the Director filed a March 8, 1994, letter reducing theassessment to $318.41 (including annual holiday pay). The City brings this application to review theassessment. By ss. 10(1) and 6(2) of the Act, an employer isrequired to pay an employee at the rate of time and one-halffor every hour worked in excess of 32 hours in any weekcontaining a public holiday ("holiday"). The Director contends that from April, 1990, to January, 1994, there were five such weeks in which Morgan worked 40 hours but was not paid overtime for the eight excess hours. The hours in question were worked on April 12 and November 17, 1990, July 6, 1991, and January and December 31, 1992. It is noted that none of these days is holiday, but is the day in the week containing holiday when Morgan worked the eight excess hours. The Director says it is not holiday issue, but whether the City is obliged to pay overtime as required by the Act for hours worked over 32 in week which has holiday in it. The City says it is holiday issue, because the overtime arises only because there is holiday in the week in question. agree with the City. The existence of the holiday is an essential part of the issue. No holiday means no issue. The City filed various documents, including copies of the collective bargaining agreement (the "agreement") it has with the Amalgamated Transit Union, Local #588, which covers Morgan's employment with the City, and asked me to compare the agreement's holiday pay with the Act's holiday pay. Thematerials satisfy me that pursuant to the terms of theagreement: 1. during the period December 31, 1989, to January 2, 1993, the City paid Morgan 87 hours of pay in excess of the Act's requirements for hours worked in week containing holiday; and 2. for each of the specific weeks questioned by the Directorit paid Morgan 4 hours pay in excess of the Act\'srequirements. Both parties referred to s. 72 of the Act. 72(1) Nothing in this Act or in any order or regulation made under this Act affects any provision in any Act, agreement or contract of service or any custom insofar as it ensures to any employee more favourable conditions, more favourable hours of work or more favourable rate of wages than the conditions, the hours of work or the rate of wages provided for by this Act or by any other order or regulation. (2) Where any provision in this Act or in any order or regulation made under this Act requires the payment of wages at the rate of time and one-half, no provision in any Act, agreement or contract of service, and no custom, shall be deemed to be more favourable than the provision in this Act or in the order or regulation if it provides for the payment of wages at rate less than the rate of time and one- (3) Any provision in any Act, agreement or contract of service or any custom that is less favourable to an employee than the provision of this Act or any order or regulation made under this Act is superseded by this Act or any order or regulation made under this Act insofar as it affects that employee. The leading authority in interpreting ss. 72(1) and (2), formerly ss. 62(1), is Regina v. Caxton Printing Ltd. and Central Press (1953) Ltd., 1977 CanLII 1452 (SK CA), [1977] W.W.R. 410, decision of the Saskatchewan Court of Appeal. Caxton, found guilty at trial of failing to pay overtime wages as required by the Act, appealed and won in the Court of Appeal on the ground that the collective bargaining agreement was more favourable to Caxton's employees than the Act. The Court held that "deemed" in ss. 71(2) meant "deemed until the contrary is proved", and the Court was satisfied by the material before it that the collective bargaining agreement was more favourable to the employees than the terms of the Act. Bayda J.A. (as he then was) stated at pp. 419 and 421: In determining whether any provision in an agreement prescribing rate of pay is more favourable than its counterpart contained in the Act, should that provision be isolated from the rest of the agreement and be treated as unaffected by the other provisions of the agreement dealt with in vacuo so to speak and the comparison between it and its counterpart in the Act then made, or should that provision and its effect be first evaluated in the light of the other provisions of the agreement then, only after such evaluation has take place, should the comparison be made. [M]y conclusion is that the legislature intended the rate-of-pay provision in any agreement to be read and evaluated in the light of the other provisions of the agreement before comparison is made with its counterpart in the Act. That the legislature contemplated that it should be left open to demonstrate that provision (in an agreement) on its face less favourable than its counterpart in the Act is, in fact, more favourable than the latter is evident not only from the wording of the section but from the decision itself to include the second branch of S62(1) in the section. note that in Justice Bayda's view the "manifest", "avowed" purpose of the Act is "to provide employees with working conditions and standards as favourable to them as possible." Unlike the Caxton, supra, case, do not have great deal of evidence before me to show just how much more favourable the agreement is than the Act. There is some, but not much. do have, however, the admission of the Director that such is the case. He admits that over all the agreement is more favourable to the employee than the minimum standards set out in the Act. He further admits that the agreement's provisions governing pay for holidays are more favourable than the comparable provisions in the Act. have no difficulty therefore in concluding that in the circumstances of this case the provisions of the agreement are more favourable to Morgan than the terms of the Act. That being the case, in light of the Caxton, supra, decision, the provisions of the agreement should govern, and not those of the Act. The City\'s application is allowed, and thecertificate is amended to show that there are no wages due orowing to Albert Morgan. There will be no order as to costs.
The Director of Labour Standards issued a certificate against the City of Regina certifying that it owed a transit employee $318.41 in wages for hours worked in weeks containing a statutory holiday in excess of 32 hours as provided in the Labour Standards Act. The City applied for a review. HELD: The City's application was allowed. Under the terms of the collective agreement in force, the employee was actually paid 4 hours pay in excess of the Act's requirements for each of the weeks in question. Pursuant to section 72 of the Act, therefore, these particular terms of the collective agreement applied since they were, when considered in light of the balance of the agreement, more favorable to the employee than the requirements of the Act.