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HomeMy WebLinkAbout1987-1277.Aitken et al.88-07-29DES GRIEFS 1277/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARQAINING ACT Before aTHE GRIEVANCE SETTLEMENT BOARD Between : OPSEU (D. Aitken et al) - and - Grievor6 The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Grlevors: For the BmDlover: Hearing: I.C. Springate Vice-Chairman T. Traves Member P. Camp Member A. Ryder Counsel Gowling & Henderson Barristers & Solicitors A.R. Rae Senior Staff Relations Officer Staff Relations Branch Human Resources Secretariat March 28,. 1986 -2- DECISION These proceedings arise out of separate grievances filed by 41 correctional officers at the Burtch Correctional Centre. At the hearing, counsel for the union indicated that although he did not have authority to abandon the grievances, he had not been able to develop a position which might result in the grievances succeeding. All of the grievances arose under what is at times referred to as the 1984-1985 collective agreement between the parties. This agreement was not actually executed by the parties until October 30, the payment of shift ,.1986. Article 11 of the agreement dealt with premiums as follows: ARTICLE 1 1 - SHIFT PREMIUM 11.1.1 11.1.2 11.1.3 11.2 shall ..-. Effective January 1, 1984, an employee receive a shift premium of forty-five per hour for all hours worked between (43) cents 5:00 p.m. and 7:00 a.m. Where more than fifty percent (50%) of the hours fall within this period the premium shall be paid for all hours worked. Sub-section ll.l;l shall cease to have effect on the date of signing of this collective agreement. Effective on the date of signing of this collective agreement, a shift premium of forty-five (45) cents per hour shall be paid ,for all hours worked between 5:00 p.m. and 7:00 a.m. Where the Employer schedules any shift which begins before.S:OO a.m. or ends after 7:OO p.m., shift premiums shall be paid for all scheduled hours worked on that shift. Shift premiums shall not be considered as part of an employee's basic hourly rate. 11.3 Shift premium shall not be paid to an employee who for mutually agreed upon reasons works a shift for which he would otherwise be entitled to a shift premium. Article 11.1.3 was included in the agreement pursuant to an interest arbitration award. The article provided that as of the date of the signing of the agreement, whenever an employee worked a shift beginning prior to 5:00 a.m. or ending after 7:00 p.m., he or'she was to receive a shift premium for all hours worked during the shift. This represented a change from Article 11.1.1 which guaranteed payment of the shift premium for all hours actually worked between 5:00 p.m. and 7:00 a.m., but only required that the premium be paid for an entire shift if at least half of the shift fell within this time period. Article 7.6 of the collective agreement provided that the parties could enter into local agreements with respect to hours of work, including agreements for a "compressed work week". During a compressed work week employees generally work fewer than 5 days per week, but with longer than usual working hours on each of those days. Following the release of the interest arbitration award referred to above, the parties recognised thatthere was an element of inconsis- tency between voluntary agreements to have employees work a compressed . work week, and payment to those employees of a shift premium in accor- dance with Article 11.1.3. In the result, the union and the employer agreed that they would discuss the topic during negotiations for a new agreement, and that in the interim Article 11.1.3 would not be implemented with 'respect .to employees on a compressed work week. These employees would instead continue-to receive shift premiums in accordance with Article 11.1.1. We can only assume that the union agreed to this arrangement so as not to jeopardize local agreements permitting employees to work a compressed- work week. The actual arrangement between the parties took the form of a letter dated October 29, 1986 from Mr. P,. Mooney, Senior Staff Relations Officer with the employer, to Mr. A. Todd, the Co-ordinator of Collective Bargaining for the trade union. The letter read as follows: Dear Mr. Todd: RE: Stay on Implementation of Article 11.1.3 in respect of Employees covered by Compressed Work Week Agreements Further to our telephone conversation of October 28, 1986, this will confirm our agreement to stay implementation of Article 11.1.3 of the Collective Agreement with respect to Working Conditions and Employee Benefits (1984/85), as it applies to employees covered by compressed work week agreements pursuant to Article 7.6 and Appendix 4. This stay is agreed to pending discussions between the parties during negotiations with respect to the renewal agreement for 1986, in which the parties are attempting to resolve the issue to their mutual satisfaction. The stay on implementation will continue until such resolution, with the proviso that if at any time during the discussions either party concludes that there is no possibility of reaching a satisfqctory resolution, that party may terminate the stay and effect the implementation of Article 11.1.3 by giving notice in writing one (1) month in advance of the intended effective date of implementation. It is understood that Article 11.1-3 will be implemented effective the date of signing of the 1984/85 Collective Agreement for employees not covered by compressed work week agreements. Notwithstanding Article 11.1.2, the parties agree that empioyees covered by compressed work week agreements shall continue to receive shift premium payments pursuant to Article'll.l.1 effective on and from the date of signing of the 1984/85 Collective Agreement until the above-noted stay on implementation of Article 11.1.3 is terminated in accordance with this letter. Please confirm that this is an accurate representation of our oral undertaking by signing the attached copy as indicated. Mr. Todd signed a copy of the letter indicating his acceptance of its terms. The grievances in this matter were all filed in March of 1987. They claim the payment of shift premiums in accordance with Article 11.1.3. Presumably at the time the grievances were filed the grievors were unaware that the parties had agreed to stay implementation of Article 11.1.3 with respect to employees such as themselves who were working a compressed work week. Given the union's undertaking not to apply Article 11.1.3 to persons working a compressed work week, the union and the grievors are estopped from now claiming payment under that provision. The grievances are, accordingly, hereby dismissed. -6- I.C. Springate - Vice-Chairperson T. Traves - Member P: Camp - Member \