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One year after a ruling in their favour, Loblaws delivery drivers still waiting for overtime pay

On a good day, Faisel Osman gets back to his home in Kitchener, Ont., early enough to see his four children before bedtime. But with a shift that starts at 10 a.m. — and runs anywhere from 10 to 12 hours — that doesn’t always happen.

“It’s kind of tough. If I come early, maybe before they get sleep, I get to spend a little bit of time with them,” said Osman, a 36-year-old delivery driver for Loblaws.

For the past six years, he has worked out of the company’s Maple Grove distribution centre in Cambridge, Ont., spending his days driving to places like Mississauga, Woodstock or even as far as London, about 1.5 hours away. Despite the long work days, Osman is only paid overtime if he works more than 60 hours a week.

Last September, an arbitrator ruled this practice violates Ontario’s Employment Standards Act (ESA), which requires employees to receive overtime pay after working 44 hours a week. But one year after that decision came down, Loblaws has not changed the way it pays its Cambridge distribution centre drivers, nor has it paid employees any back wages.

No one from Loblaws would agree to an interview with CBC News. But in a statement, the company said it’s been operating for close to a decade under a collective agreement with the union and drivers.

“Recently, specific overtime compensation details were challenged. That disagreement continues,” the statement reads.

Additional overtime pay — which is 1.5 times the employee’s regular hourly rate — is something that Osman said would translate into hundreds of extra dollars a month for him — money he could use as the sole breadwinner for his growing family. His wife is due with their fifth child in December.

“It’s very hard now these days … you try your best with whatever you can to survive,” said Osman. “Loblaws is the biggest [grocery] company in Canada.… They can do better than this.”

Initial grievance

The grievance against Loblaws was filed in 2014 by Trevor Enos, a driver who has 35 years with the company. Like Osman, he works out of the Maple Grove distribution centre in Cambridge.

“I went from a 52-hour week to a 60-hour a week, to make $15,000 a year less,” said Enos. Prior to 2010, he said, drivers were paid overtime once they worked over the provincially designated minimum.

What changed in 2010? The union that represents the drivers — UFCW 1006A — and its members went through collective bargaining and signed a new contract with Loblaws. It included the 60-hour provision in addition to a host of other changes, like “activity-based compensation,” which pays drivers based on specific work assignments as opposed to straight hours of work.

Like Osman, Enos said he loves his job, his team and working for the company. But he said he filed the grievance because of the impact it was having on junior drivers who have a much lower hourly wage and used to rely heavily on overtime pay.

“They say, ‘Trevor, you know I can’t make enough money. I’m struggling.’ That’s hard,” Enos said.

Other drivers, like Hamilton resident Peter Simon, say they’ve had to find second jobs over the years to make ends meet.

“I’ve had to do other stuff on the side to take care of myself,” said Simon, who has worked for the company since 2002, also out of the Cambridge distribution centre.

Roughly six months after the overtime rules changed in 2010, Simon started taking up construction jobs to supplement his income.

“You’re getting paid for your 14-hour days, but you’re not really getting paid for your true 14, with the overtime itself,” he said “With that, you’re looking at a good little chunk of money right there, whether it’s an extra $200 or $300 a week itself. Over the period of time, it all adds up.”

In arbitration hearings, Loblaws argued that drivers at the Cambridge distribution centre are exempt from ESA rules because they fall under the category of highway transport drivers, who can work up to 60 hours a week before overtime kicks in.

After four years of hearings, arbitrator Gordon F. Luborsky ruled the drivers’ job duties did fall under the ESA, therefore entitling drivers to overtime pay after working more than 44 hours.

Luborsky didn’t outline, however, how much Loblaws should pay in back wages or offer any guidance on that matter. He instead insisted both sides work together on a settlement.

One year later, no settlement has been reached and Loblaws is now challenging the arbitrator’s decision. The company has filed a judicial review and wants an Ontario Divisional Court judge to quash the decision.

“Loblaws seems to want to drag this out because of the money that is involved here. We’re talking hundreds of thousands of dollars,” said Wayne Hanley, president of UFCW 1006A.

The union continues to press the company to pay up, Hanley said, but it seems like there’s a lack of urgency to resolve the issue.

“That’s unfair and we would encourage Loblaws to come to the table and have some progressive talks on how this can be remedied,” he said.

‘This is going to impact thousands of employees’

Sunira Chaudhri, a partner with Levitt LLP, said it’s not often that you see a union matter like this escalate to the point of a judicial review — because the whole point of a collective agreement is for unions and management to work together to resolve a grievance.

Chaudhri said the arbitration decision is an affirmation that it doesn’t matter what two sides agree to — in this case, a 60-hour work week before overtime is given — if it’s a violation of the ESA, it’s not enforceable.

“[This decision is] a reminder that you can’t contract out of legislation — minimum legislation — in this province and in this country,” she said.

Chaudhri also suggested that others are going to be looking at this decision closely.

“I think it’s unequivocal that this case is going to lead to other unions taking a closer look at the Employment Standards Act and making sure that employers are definitely at least meeting the minimums,” she said.

“This is going to impact thousands of employees — if not hundreds of thousands — in terms of employees that might be looking to a decision like this to get them overtime pay sooner.”

A spokesperson with Teamsters Local 91, an Ottawa-based union that represents Loblaws drivers in that city, told CBC News it has followed the lead of Trevor Enos and UFCW 1006A, filing a grievance that argues its 67 drivers are not being paid overtime beyond 44 hours. The grievance was filed just two months after last September’s decision from the arbitrator in the Cambridge case.

Loblaws has different agreements with different drivers in different regions. In New Brunswick, for example, its 60 drivers are represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers’ International Union (BCTGM). A union member told CBC News that they’re not paid overtime at all unless they work a statutory holiday.

Loblaws statement

In a statement to CBC News, Loblaws said it has calculated the disputed overtime money owed since last September’s decision and has set it aside.

“[We] are paying that into a trust account as we await the final determination by the Court,” the statement read.

The company wouldn’t answer questions about how much money is in that trust or how it calculated the amount.

That’s no consolation to drivers’ and union steward Roger Siroky, who just wants to see the company follow the arbitrator’s ruling.

“I would like to see the drivers being paid overtime starting next week as step one,” he said. “I don’t know how an award can come down and them not [pay] it.”

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