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HomeMy WebLinkAbout1987-1553.Graydon.88-07-04- “1 ‘6.. i. IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (A. Graydon) Grievor and. The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Grievor: For the Employer: Hearing: J. Forbes-Roberts Vice-Chairman I. Thomson Member M. O'Toole Member R.R. Wells Counse 1 Gowling and Henderson Barristers and Solicitors J. Carrier Counsel Mathews, Dinsdale & Clark Barristers and Solicitors April 12, 1988 DECISION The grievor, Mr. Alan Graydon is a Correctional Officer 2 ("C.0. 2") at the Guelph Correctional Centre. The C.O.'s 2 at that Institution are on a compressed work veek. The essential features of the system are as follovs. An employee's schedule is set for a tventy-eight (28) veek period. Each employee vorks a combination of tvelve (121 and eight (81 hour shifts. Every tvo (2) veeks the employee vorks eighty-four (84) hours , but is paid for eighty (80). There is no overtime premium for the additional four (4) hours. Instead the hours are averaged over the tventy-eight (28) veek period. At the end of tventy-six (26) veeks the employee has, for lack of a better vord, accumulated forty (40) hours vhich he has vorked but for vhich he has not been remunerated. This time is compen- sated for by giving the employee forty (40) hours (five) days off. Thus at the end of the schedule his hours average out to forty (40) per veek over tventy-eight (28) veeks. An employee vould not necesarily start in veek one (11 of his tventy-eight (281 veek schedule. He could in fact start in veek tventy-eight (28). In that event he would be revarded "up front" vlth forty (40) hours off in exchange for the overtime that vould be vorked over the next tventy-seven (27) week period. The grievor vas off on Worker's Compensation from March 4, 1987 to May 4, 1987. In evidence he vas able to identify his "compensating" forty hours from that particular schedule as set for March 23, 24, 27, 28 and 29, 1987. Obviously the grievor vas already absent due to the vork related injury. Upon his return to vork the grievor vas told that through his absence ,he had lost the forty (40) hours, and that he vas simply into the next tventy-eight (28) week cycle. It vas the Union's position that this is in contravention of Article 54.2 of the Collective Agreement. Article 54.2 states: Where an employee is absent by reason of an injury or an industrial diseas,e for which an avard is made under the Worker's Compensation Act, his salary shall continue...and any absence his qr&&16 . (emphasis added) It was the Union's contention that the forty (40) hours is a '*credit" vhich the grievor had earned. In denying him the time the Employer has placed a charge against his credits. Employer counsel argued that the schedule must be considered as "a vhole". Counsel also argued that because the grievor received Worker's Compensation payments during the relevant period, in seeking to retrieve the forty (40) hours of free time the vas looking for a "bonus". We agree vith the Employer's first contention and disagree vith the second. The.Employer is quite correct in suggesting that the scheme or schedule must be considered as "a whole". This approach reveals certain undeniable facts. The employees' appropriate level of remuneration is premised upon consideration of a number of factors-(l) the twenty-eight (281 veek cycle as a -2- whole, (2) the hours averaging concept, and (3) the fact that vithin the first tventy-six (26) veeks of the cycle, on a bi- monthly basis the employee is actually not oaid for eight (8) hours of -cd which would normally attract overtime ZEl&E. Assuming the forty (40) hours off are at the beginning, middle gd; end of the ,individual~s schedule, over the tventy-eight (28) veek period he will average forty (40) hours per veek. Thus under the terms of the collateral but incorporated agreement reached by the Union and the Employer, in the normal course of events overtime rates do not become a concern. The employer sought to compare the forty (40) hours of rest days to Saturdays and Sundays, (or their equivalent scheduled days off), vhich are also delineated as rest days. The argument was forvarded that if an employee vas ill on his “regularly scheduled” days off it was his poor luck and he vould not be entitled to additional compensating time off. We agree with this argument in principle. The determining factor however is that an employee does not vork unpaid overtime to get Saturdays and Sundays (or their equivalent) off. They are granted in the normal course of events. The Employer also argued that because the grievor received Worker’s Compensation payments (at best at straight time) for the time he had been absent, he had already been adequately remuni- rated. This argument denies the very concept of hours averaging. Under hours averaging the assumption is made that at the end of the pre-determined schedule simple division of the number of hours vorked by the number of weeks in the schedule vi11 notion- ally produce the result of an even forty (40) hours per week paid at straight time rates. The grievor did not comolete the tventy- eight (28) veek schedule. Therefore the simple arithmetic does not produce this notional result. Whether one calls it “accumulated’earned time” or “credits” or “banked” time, the fact remains that the grievor vorked time for vhich he was neither paid at the straight rate nor the overtime rate. An integral part of the compensation package is that in lieu of overtime rates, over the tventy-eight (281 veek schedule the employee vi11 receive compensating time off. The grievor did not receive this. The grievance is hereby alloved. The Board finds that the grievor is entitled to be “credited” vith vith the amount of free time vhich he had earned as of March 5, 1987. The Board vi11 remain seized in the event of difficulty vith the implementation of this award. . : _ - 3 - \ Dated at Toronto, this 4th day of July, 1988. '. y. P/ok6es-Roberts, Vice Chairman / &i&& . orToole, Member