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HomeMy WebLinkAbout1990-2180.Union.91-10-03 Decision ONTARIO EMPLOYtS DE LA COURONNE CROWN EMPLOYEES DE CONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/TELL=COPIE: (416) 326-1396 2180/90 IN THE MATTER 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 Services) Employer BEFORE: G. Simmons Vice-Chairperson J. C. Laniel Member R. Scott Member FOR THE R. Anand GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE J. Brooks EMPLOYER Counsel Genest Murray Barristers & Solicitors HEARING April 4, 1991 2 This is a union grievance dated October 30, 1990, which contains the following statement: That the Ministry of Correctional Services is violating Article 3.4 of the collective agreement specifically, but not exclusively, by not paying the proper overtime wages to unclassified employees at the Elgin-Middlesex Detention Centre in London. The settlement requested reads as follows: That the Ministry of Correctional Services pay the proper overtime wages to unclassified employees at the Elgin- Middlesex Detention Centre in London. The parties appeared before the Board with an attempted Agreed Statement of Facts. However, they were not totally ad idem as to the facts contained therein and therefore did not sign the statement. However, it turned out to be sufficient for their purposes and they elected not to call evidence. Accordingly, we reproduce that statement for convenience purposes only, but it is recognized that it is not totally agreed to by the parties. AGREED STATEMENT OF FACTS 1. The Union filed a policy grievance dated October 30, 1990 alleging that the Ministry was violating Article 3.4 of the collective agreement by not paying the proper overtime wages to unclassified employees working as correctional officers at the Elgin-Middlesex Detention Centre in London (the 'Detention Centre'). The Statement of Grievance provides: 3 That the Ministry of Correctional Services is violating Article 3.4 of the collective agreement specifically, but not exclusively, by not paying the proper overtime wages to unclassified employees at the Elgin- Middlesex Detention Centre in London. The settlement desired is: That the Ministry of Correctional Services pay the proper overtime wages to unclassified employees at the Elgin- Middlesex Detention Centre In London. 2. At all relevant times the Detention Centre employed approximately 122 classified correctional officers whose civil service classification is that of Correctional Officer 1 or Correctional Officer 2. These classified correctional officers worked at all relevant times pursuant to three separate and distinct shift schedules as follows: (i) Approximately 54 classified correctional officers worked straight 8 hour per day, 40 hour per week shifts on a variety of rotating shifts; (ii) Pursuant to a Compressed Work Week Agreement (the 'CWWA') between the Ministry and the Union made in accordance with Articles 7 and 35 of the collective agreement, approximately 52 classified correctional officers worked 12 hour shifts (generally 60 hours in one week and 24 hours in the next week) on a 51 week rotation as set out in Appendix 'A' attached hereto; (iii) Pursuant to the CWWA approximately 16 classified correctional officers assigned to the Young Offenders section of the Detention Centre worked mixed 8 and 12 hour shifts pursuant to a 16 week rotation as set out In Appendix 'B' hereto. 4 3. The Detention Centre has a fluctuating number of unclassified employees whose equivalent civil service classification is that of Correctional Officer 1 and who work as correctional officers when classified correctional officers are absent from work. At the time of the grievance (i.e. October 30, 1990) there were approximately 32 of these unclassified employees employed by the Detention Centre. 4. At all relevant times there were 2 types of unclassified employees. 5. The first type of unclassified employee was employed under a limited term contract which contracts were generally made in response to the temporary, non- recurring vacancy of a classified correctional officer being off on maternity leave, long-term disability, etc ... (hereinafter referred to as a 'Type A' employee). While employed in this manner Type A employees were slotted into the relevant schedule in the same manner as the classified correctional officer who they were replacing. Accordingly, the Type A employee could have been scheduled to work in any one of the three types of shift schedules referred to in paragraph 2 herein. 6. The second type of unclassified employee was also employed under a limited term contract which was generally of three or six months duration (hereinafter referred to as a 'Type B' employee). These contracts provided for 'authorized hours of work as required up to 40 hours per week'. Type B employees were used as fill- ins on an as-needed basis to cover short term intermittent absences of classified correctional officers due to staff training, illness, union leave, lieu days, bereavement leave, personal leave of absence, vacation, etc... Type B employees were generally contacted at their home by the Detention Centre and offered an opportunity to report for a shift and the amount of notice in this regard ranged from a few hours to 1, 2 or 3 days. In the event that the institution was able to contact the Type B employee and the Type B employee was available to work the relevant shift the Type B employee was advised to report for work for a specified number of hours, generally being either 8 hours 5 or 12 hours depending on the shift of the absent classified correctional officer which needed to be filled. 7. On most occasions during the 5 month period before the grievance, Type B employees would consistently work 40 straight time hours per week over a period of time ranging from a number of weeks to a number of months. 8. The Ministry did not make overtime payments to Type A employees for hours worked in excess of 8 hours per day or 40 hours per work week in circumstances where the Type A employee was slotted into a 12 hour shift rotation (Appendix 'A' hereto) or a mixed 12 hour and 8 hour shift rotation (Appendix 'B' hereto) in the same manner as the classified correctional officer who they were replacing. 9. The Ministry did pay overtime to Type B employees for any hours worked by these employees in excess of 40 hours in a work week irrespective of whether the employees shifts during the relevant work week were for 8 hours, 12 hours or both. 10. For a period of time from approximately the spring of 1989 to the end of July 1990 the Ministry did pay overtime to Type B employees for the last 4 hours of a shift when they were called to fill in for and worked a 12 hour shift. Subsequent to July 27, 1990 the Ministry ceased paying overtime to Type B employees when they were called to fill in for and worked a 12 hour shift unless or until an employee's hours of work exceeded 40 in the relevant work week. 11. It is understood and agreed that this Agreed Statement of Facts is made and entered into by the parties solely for the purpose of this grievance (GSB #2180/90) and is expressly made without prejudice or precedent to the position or rights of the parties in any other matter. The relevant provisions of the collective agreement are 3.4 which reads as follows: 6 OVERTIME One and one-half(1-1/2)times the basic hourly rate shall be paid for authorized hours of work performed: (a) in excess of seven and one-quarter(7-114)or eight (8) hours per day, as applicable, where employees work a regular thirty-six and one- quarter (36-1/4) or forty (40) hour work week, as applicable, or (b) in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours, or (c) in excess of the employees' regularly scheduled work week, or (d) in excess of thirty-six and one-quarter (36-1/4) or forty(40) hours per week where employees do not have regularly scheduled work days. The parties enlightened the Board on a few additional facts. It is agreed that the average work week at the Detention Centre is 40 hours. Furthermore, we were informed by Counsel for the Employer that unclassified employees who are requested to perform and 8 hour shift and during the course of that shift are asked to remain beyond the 8 hours receive overtime compensation. Counsel for the Union was not aware that such was the case, but could not dispute it. Furthermore, Counsel for the Union informed the Board that the Union did not consider 3.4(c) and (d) to be an issue because those sub-clauses dealt with weekly overtime. However,the Employer took the position that sub-clause(d) did apply and he further urged the Board to look at 3.4 in its entirety. Essentially, the Union asks two questions. Does overtime apply to the unclassified employees who perform work in excess of 8 hours in a day; and more particularly, does it apply to employees who do not have a regularly scheduled work week? As we understand the matter,there are the unclassified employees who are referred to as 'Type K employees who are assigned to replace classified employees who are on what may be termed a somewhat lengthy leave. These employees are slotted into the relevant schedule in the same manner as the classified correctional officers would be if they were at work. The second type of unclassified employee, referred to as Type "B" are those employees who fill in on an as-needed basis to cover short term intermittent absences. They likewise are slotted into the relevant schedule of the absent classified employee. It was the Type "B" employee who was compensated overtime whenever that employee worked over 40 hours from the spring of 1989 to the end of July, 1990. The Union argues that this amounts to past practice and the Employer Is estopped from changing it. The Employer, on the other hand, says that such payments were made in error and ought never to have been paid. The Board did not receive argument on this issue. The Board was referred to an earlier decision between the same parties, chaired by Mr. E.B. Jolliffe, Q.C., Vice Chair dated August 28, 1984. In that case, however, there was no factual situation as in the instant case but rather it was in the form of a "stated case'. The Board was asked to answer several questions as to the applicability of Article 3.4 (then 3.3). On page 8 of that award there appears: 'Strictly speaking, we received no evidence about the scheduling of 8 Article 3 employees' hours." And at page 15 there appears: "It has already been noted that whether an employees' hours are scheduled and whether he has regularly scheduled work days are questions of fact that cannot be answered except in the circumstances of a specific case." Therefore, while the decision is illuminating it does not assist this Board in resolving the situation that is before us. The narrow question that is before us Is -- is an unclassified employee who is slotted into a classified employee's work schedule of 12 hours entitled to overtime pay for any hours worked in excess of eight? In our opinion, given the facts that are before us, we must answer that question In the negative. In our view, Article 3.4(b) gives a complete answer to the situation that is before us. It is acknowledged that Article 3.4 applies to the unclassified service. There are a variable number of instances where such employees are entitled to overtime. However, sub-clause (b) appears to fit the situation that is before us. What we have here is an unclassified employee who is assigned to work a regularly scheduled 12 hour shift. That shift is "a regularly scheduled work day exceeding eight (8) hours." It is to be noted that 3.4(b) states that overtime is to be paid when the employee works"in excess of the scheduled hours"unlike(c) which says "in excess of the employee's regularly scheduled work week'. In other words, we have in (b) unclassified employees who work on a regularly scheduled work day exceeding 8 hours(the classified employee's work schedule)as replacements for those classified employees. Section 3.4(b) does not say that it is "the employees' regularly scheduled work week'as appears in(c). Therefore,Article 3.4(b) applies 9 and employees who are working on a regularly scheduled work day that is of 12 hours duration are not entitled to overtime unless they exceed the regularly scheduled hours of work for the day. We are supported in this view by the fact that classified employees who are regularly scheduled to work for 12 hours in what is referred to as the compressed work week are not entitled to overtime for the hours worked in excess of eight. Therefore, for the foregoing reasons, it is the Board's decision that the Employer is not in violation of the collective agreement and the grievance is dismissed. Dated at Kingston, Ontario on the 3rd day of October , 1991. C. Gordon Simmons Vice Chairperson U, Mr. J.R. Scott Employer Member j Mr. J.C. Laniel Union Member