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Digest of the Week | Temporary Foreign Workers Entitled to Increase in Vacation Pay

Arbitrator holds temporary foreign workers entitled to retroactive increase in vacation pay from 4% to 6%, despite delay in bringing grievance

Floralia Plant Growers Ltd. and UFCW, Local 1518 (Vacation Pay), Re
2015 CarswellBC 3852, [2016] B.C.W.L.D. 1320, [2016] B.C.W.L.D. 1324, 125 C.L.A.S. 209
British Columbia Arbitration

Labour and employment law --- Labour law — Labour arbitrations — Practice and procedure— Compliance with grievance procedure — Timeliness

Grievors employed as temporary foreign workers under federal Seasonal Agricultural Workers Program ("SAWP") — Collective agreement required employer pay employees four percent vacation allowance, increasing to six per cent after three consecutive years — Union brought grievance concerning employer's failure to pay grievors six per cent vacation allowance — Grievance allowed in part — Union submitted grievors would have first been entitled to receive six per cent vacation allowance in 2010, being their third year of employment; grievors were not paid six per cent until 2014; grievance was ongoing grievance; it would be inequitable to allow employer to profit at expense of vulnerable group of employees; employer was not prejudiced; while employer conceded it was in error at least as far as 2013, it declined to correct mistake; union was previously unaware of any issue concerning payment of vacation pay; and it was not seeking interest on unpaid vacation pay — Employer submitted grievance was untimely; grievors had been well represented by union, given pay stubs and could see whether they were paid appropriate vacation pay; and grievors had nothing to fear in their employment with employer — Grievance was substantially out of time as union sought remedy extending back five years — Grievors' vulnerability weighed in favour of awarding full remedy sought by union — Union had no prior knowledge of whether grievors had been paid their vacation pay prior to filing grievance — Grievors expressed concerns to union about possible impact on their working conditions if they raised vacation pay issue with employer — Payment of vacation pay would not cause undue prejudice to employer — Extension of time granted to allow grievance for 2012 and 2014 seasons — Grievors were also entitled to six percent vacation pay for 2015 season — Calculation remitted to parties.
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