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HomeMy WebLinkAbout1987-1631.Union.88-04-221631/87 IN THF, HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor .and The Crown in Right of Ontario (Ministry of Correctional Sercices) Employer Before: J.W. Samuels Vice-Chairman T. Traves Member W.A. Lobraico Member For the Grievor: A. Ryder COUnSel Gowling and Henderson Barrister&and solicitors For the.Employer: J.F. Benedict Manager Staff Relations Ministry of Correctional Services February 5, 1988 DECISION 2 Article 3.9 of the collective agreement provides for the payment of OHJP premiums for unclassified staff. The Ministry must pay lOO%.of the monthly premium for employees “who work a regular thirty-six and one- quarter (36.1/4) or forty (40) hour work week and who have been so employed for three (3) calendar months in a ministry”. The Union grieves that the Ministry is improperly administering and applying this provision with respect to a group of unclassified correctional officers. In this classification, the ‘normal work week for full-time staff is forty hours, so in Article 3.9 we are concerned with a “regular...forty (40) hour work week”. The particular situation which gave rise to this grievance.occ&ed at the Monteith Correctional Centre, but this matter really concerns the Ministry’s policy and practice throughout~itssystem .and has significance for all ministries in .the Ontario Government. The issue is how Article 3.9 applies to unclassified employees who are considered to be “part-time” because they do not always work forty hours per week. The Union became concerned with this issue because of several conversations between management at the Monteith Correctional Centre and Mr. Henri Dumont, at that time an unclassified correctional officer, in the week of July 6,1987. Mr. Dumont began working at the Centre on April 7, 1986; pursuant to a limited-term contract which would expire on December 31, 1986. The contract contained the words “Authorized hours of work as required up to 40-hrs. per week”. Jjis employment was continued from January, 1 to June 30, 1987, pursuant to a further contract, which contained the words “Authorized hours of work,as’required up to 40 hours per week. Irregularly scheduled”. This same language appeared in his third limited-te& contract, .which carried his employment from July 1 to September 30, 1987. This . 3 third contract was in force when the events with which we are concerned occurred. Mr. Dumont is now a member of the classified full-time service. The Monteith Correctional Centre is located 60 kilometers from ‘Rmmms, and consists of three units---a 120-bed correctional centre, a 26- bed jail, and a 30-bed co-ed young offenders unit. The total complement at the institution is 142, of whom some 25 are unclassified employees. Among the unclassified staff, 18 are correctional officers (one who is considered by the Ministry to be ‘full-time” and 17 who are considered to be “part-time”). The employees who are considered by the Ministry to be “unclassified part-time” officers at the Monteith Correctional Centre are hired on limited- term contracts which include the .term “Authorized hours of work as required up to 40 hours per week. Jrregularly scheduled”, or .equivalent language. These officers are used to cover for regular staff who are off work for a variety of reasons---training, lieu days, v~acation, illness. The shift schedules for all officers (classified land unclassified, “fuh- . time” and “part-time”) go up three weeks ahead of the week scheduled. In most cases, management knows who will be off on vacation, or training, or lieu days, and so on, and therefore the officer in charge of the shift schedule is able to schedule the unclassified “part-time” relief on the shift schedule. However, there are last-minute’problems (illness, for example), and often the part-time officer will work more hours than are shown initially on the shift schedule. In fact, very often the unclassified “part-time” officer winds up working 40 hours per week for long periods of time. This was the case with Mr. Dumont. In .1987, up to the week of July 6, he had worked twenty weeks of at least forty hours per week, with six ‘weeks interspersed in which he worked less than forty hours per week. In the three months (thirteen ~weeks) before the week of. July 6, he had worked eleven weeks of at least forty hours per week, and two weeks with less than forty hours. In the week of July 6, 1987, Mr. Dumont was initially scheduled to work twenty-three hours, with shifts on July 8, 10 and 11. This is what was : .’ i :j .i 4 shown on me shift schedule which went up three weeks ahead of time. Some time before the week began, he was assigned in addition to work twelve more hours on July 9. Thus, as of the morning of July 7, Mr. Dumont would work thirty-five hours in the week of July 6 to. 12. On July 7, he was called by the officer in charge of the shift, Acting- Lieutenant Mills, and was asked to work four hours that day. Mr. Dumont accepted. Several minutes later, Mills called back to say that Dumont could not work that day because “they would have to pay benefits”. Dumont reported this to the Union on July 8. On July 8, when Dumont went to work, he saw’a:note written at the bottom of the shift schedule in red “July 7/87 Dumont H. do not work him anymore this week. EB”. This appears to have been written by Mr. E. Bouchaxd, the Security Officer at Monteith, who is an OM15 in management. On July 12, a Sunday and the last day of this week, Mr. Dumont was. working from 1500 to 2300, and was asked by Acting-Lieutenant Larivee to stay onfor a double shift, continuing from 2300 to 0700. Dumont accepted. ‘Several minutes later, Larivee c.alled back to say that he had made a mistake and couldn’t give Dumont any more hours. To Dumont and the Union, all of this appeared to be a deliberate attempt to disentitle him to the OHIP premiums provided in Article 3.9. And in our view they had good reason to think this, given the words and conduct of Mills, Larivee and Bouchard. All appearances suggested that Mr. Dumont was not getting more hours ‘in the week of July 6 because if he had more hours “they would have to pay benefits”. We didn’t hear from these three members of management (Mills, Larivee and Bouchard), but we did have &testimony of Mr. J. Hutton, the Superintendent at Monteith, and Mr. J. Benedict, the Ministry’s Manager of Staff Relations. They were not able to explain why Dumont was treated as he was in the week of July 6, 1987. However, it is clear from the evidence of. these two gentlemen that the Ministry’s intention is to staff according to operational needs, to avoid overtime if possible (an overtime shift costs the I 5 Ministry some $150 per shift, which is very -sizeable’compared to thee’ monthly CHIP premium of $20), and to distribute the work fairly among the 17 or 18 unclassified “part-time” correctional officers, but.m to allocate work for the purpose of defeating an employee’s entitlement to the OHIP premiums under Article 3.9: In view of the testimony of Messrs. Hutton and Benedict concerning the Ministry’s policy and practice in the matter of scheduling, we do not find that there was bad faith in the scheduling of Mr. Dumont, in spite of the curious comments by Messrs. Mills, .Bouchard and Larivee in the week of July 6,1987. We are left with the question of how is Article 3.9 .of the collective agreement to be interpreted and applied with respect to the unclassified officers who dq not always work a 40-hour week, and who are considered to be “part-time” by the Ministry? - In our view, the answer to this is as follows: 1. It is the language of the collective agreement itself which must govern. Mr. Benedict and Ms. E. Cornwall, the Ministry’s Benefits Officer, explained to us the way in which the payroll and OHIP premium payments are administered. However, these are matters internal to management and do not govern the interpretation of the collective agreement. Mr. Benedict argued that the Ministry had used the same system for years-and that, if it did not comply with then collective agreement, the Union was estopped from relying on its strict rights under the collective agreement because the Union had permitted management to continue withthis practice. But there was no evidence that the Union was aware of the Ministry’s policy and practice of payroll and benefits administration, nor that the Union had acquiesced in the Ministry’s system, nor that the Union had represented that it was content with a system which violated the rights of employees under the collective agreement. Therefore, if the Ministry’s policy and‘practice violates the .-. . . 6 collective agreement, the Union is not estopped from raising the matter. The issue for us is simply what meaning is to be given to the words of’the collective agreement. 2. Article 3.9 of the collective agreement does not distinguish between unc’lassified staff who are on “full-time” contracts and those who are on “part-time” contracts. The nature of the employee’s contract is not the determining factor. Rather, it is the actual work pattern of the employee which determines whether or not the OHIP premium must be paid by the Ministry. 3. According to Article 3.9, when a monthly premium is.due to OHIP, it is necessary to determine whether the individual employee has worked “a regular...... forty (40) hour work week” and if the employee has “been so employed for three (3) calendar months”. This determination must be made for each monthly premium. .If the two qualifications are met, the Ministry must pay 100% of the employee’s OHIP premium. 4. A “regular forty hour work week” means that the employee’s ~work pattern shows a recurring or repeated tendency. of at least forty hours of ,work per week. It does not mean that the employee must always work forty hours in the week. Rather, the pattern must have sufficient consistency so that it can be said that there is a J’regular forty hour work week”. 5. For administrative purposes, it is necessary to give a workable precise definition of “regularity” so that the parties to the collective agreement can know with certainty whether or not a particular employee has a “regular forty hour work week”. In Article 3.9, the’critical period is the three calendar months (roughly 13 weeks) before the particular OHIP premium is due. ‘The issue is whether or not the employee had a “regular forty hour work week” in that critical period. In our view, it would be best if the parties themselves could agree on the precise definition of “regularityl’. For example, it might be said that the employee will be considered to have a “regular forty hour work week” if the employee works at least forty hours in each of X (fill in a number) weeks in the 13 weeks preceding the particular 7 OHIP premium. This specific issue was not addressed at any length at our hearing. We will give the parties four months from the date of this award to attempt tom work out this precise definition. If,. by that time, they have been unable to come to agreement on a definition of “regularity”, we will, reconvene to hear argument on this single point. 6. We understand the Ministry’s need to have an efficient payroll system, without a special computer program for each employee. Therefore, we suggest that, if it is clear that an employee will qualify for,payment of the OHIP premium (for example, if the employee always has a 40-hour work week), the Ministry can arrange to pay the premium directly. If, on the other hand, the employee does not always qualify, ~the employee can pay the premium (perhaps by payroll deduction), and later the employee can apply for reimbursement of a particular premium if he or she qualified under Article.3.9. 7. If management was scheduling in order to defeat the employee’s right to the OHIP benefit, this would be administering the contract in bad faith and an appropriate remedy could be fashioned by a Board of Arbitration (for a discussion of the limitations on the decision-making power of management, see for example Da Cosra, GSB 570/&f (Samuels)) . The Union’s grievance was filed on July 20,1987. We order now that the Ministry must compensate all employees whose OHIP premiums ought to have been paid ,according to the interpretation of Article 3.9 which will ultimately be agreed by the parties or established by the Board according to i. ,. a the procedure set out in this award, commencing with the premiums due in July 1987. ‘Done at London, Ontario, this 22nd day of April, 19 88. 1. W. ;Samuels, Vice-Chairman T. Traves, Member (Addendum attached) W. A. Lobraico, Member ADDENDUM I' concur with the decision to refer the matter to the parties but ~1 am co'ncerned that it does not leave enough room for negotiation. On the other hand it does not seem fair that the employer pays O.H.I.P. for employees who work a regular 36 1/4.hour week but not those who regularly work 37, 30 or 40 hours. This is particularly so now that the agreement provides benefits for part-time civil servants and this broader issue may have more relevance to the case at hand. I will await the results of the parties negdtiations before making any further comment as I believe any. changes made by this Board mighty contravene the Collective Agreement. W.A. Lobraico, Member