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HomeMy WebLinkAbout1988-0026.Charette.88-11-22 '; ,, ~ , - ONTARIO EMPLOY'~S DE LA COURC)IVNE 'i~,' :, ,,.~ CROWN£MPLOYIsE$ ~E L'ONTARIO '; ""'~';' "'"~'~;' GRIEVANCE ' C,OMMISS'ION DE SE'rTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8- SUITE2100 TELEPHONE/?~'L fZPHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 * BUREAU 2100 (416)598.0688 0026/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVkNCE SETTLEMENT BOARD Between: OPSEU (B, Charette) 6rievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: T.H. W~lson Vice-Chairperson J, Solberg Member G. J. Milley Member For the Grievor': A, Ryder Co~lnsel gow]~nG and Henderson Barristers and Solicftors For the Employer: S, Patterson Solicitor Legal Services Branch Ministry of Comm~Inity & Social Svcs. Hearlnq: September DECISION The grievor is a Recreational and Craft Instructor 2 at Rideau Regional Centre at Smith Falls, Ontario. Her normal work week is Monday to Friday. Sometime in November 1987 the Knights of Pythias in Ottawa scheduled an event at the Centre for December 20. Accordingly, management needed an employee to be present at the Centre on that date and the grievor volunteered. On December 20 there was a snowstorm. The grievor got to the Centre but the Knights of Pythias were unable to come from Ottawa so they called the Centre and cancelled the event. The grievor stayed at the Centre for an half hour and management paid her for the 30 minutes at time and one-half pursuant to Article 13. The grievor claims that this was a call-back pursuant to Article 1'4 and that she is entitled to four hours pay at time and one-half. No one was able to cite to the Board any decision directly on point on this issue. Mr. Ryder for the union argued that the facts fall directly within the wording of Article 14 and also within a purposeful interpretation of its provisions. Mr. Patterson for the Ministry argued that this was pre-scheduled overtime which does not fall within Article 14 and that Article 13 alone governs. I now set out the relevant~provisions: ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this agreement shall be one and one-half (1 1/2) times the employee's basic hourly rate. - 2 - 13.2 In this Article, "overtime" means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. [balance of Article 13 omitted] ARTICLE I4 - CALL-BACK 14.1 An employee who leaves his place of work and is subsequently called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of (4) hours pay at one and one-half times his basic hourly rate. The union referred the Board to the arbitration decision of P.C. Weiler in Re International Molders & Allied Workers Union, Local 49 and Webster Manufacturing (London) Ltd. ~1971), 23 L.A.C. 37, especially p. 40 quoted in E.E. Palmer's Canadian Labour Arbitration Law at p. 653: What the provision [a call-back clause] does is to guarantee an employee a specified amount of minimum earnings in certain overtime situations, whether the company has enough work for this purpose or not. The reason why the parties negotiate this minimum is the recognition of the fact that being required to leave home and to work usually involves significant disruption and expense for an employee and it is only fair that he should be guaranteed adequate compensation. It is also designed to ensure that the company, which gets the benefit of the employee being called tQ work at an irregular time, be encouraged to make use of its powers only when this is important enough to warrant the costs it will incur. It is instructive to note that in that case the collective agreement contained two provisions relating to a period of four hours pay. 20.01 An employe who reports for work at the start of his regular shift without having been notified one (1) hour in advaRce not to report, will be given work or pay at his regular rate for a period of four (4) hours unless such lack of work is caused by circumstances outside Company control. 20.02 Employees who are called back to work outside their regular hours in order to meet emergency conditions will receive whichever is the greater of the following: (a) Four (4) hours at straight time (b) Time and one-half (1 1/2) for all hours worked. Before these, grievors left their shift they were asked to return at 5:00 p.m. (later changed to 6:00 p.m.) to unload a truck, They returned at 6:00 p.m. but the truck did not arrive until 8:30 p.m. at which time management decided for safety reasons not to unload the truck until the next day and the grievors were sent home. Professor Weiler rejected the argument that because there was some degree of planning involved it was not an emergency, The pre-planning was only a factor in deter- mining whether there was an emergency. The facts indicated there was an emergency, Re also rejected the argument that the fact that they were asked before they completed their shift at 3:00 p.m. to return at 6:00 p.m. excluded them from Article 20.02. He saw no difference between their being asked before leaving and their being telephoned at home. He noted that the degree of advance notice would militate strongly against the finding of - 4 - "emergency conditions" although not on the facts in the case before him. Article 14 has itself been interpreted by this Board in Rich v. Ministry of Correctional Services (G.S.B. 442/82). In many ways this decision must be approached with care-for as Vice- Chairman Samuels states at page 6: Before concluding, we must remark that the evidence in this case was very sparse, primarily because the parties had not made known then their basic positions until argument. The Ministry raised three new arguments at the hearing and the Board accordingly had to decide the matter on evidence which was not really related to the legal points raised. Indeed, I might add that the case was argued on ad hoc arguments which apparently no one had seriously previously considered. The grievor worked normally 7:00 a.m. to 7:00 p.m. A female inmate was to be transported at 6:00 a.m. on June 24. At 7:00 p.m. on June 23 as the grievor was going off shift he indicated to the Staff Sergeant that if no one else was available, he would do it and if necessary change his shift to a 6500 a.m. to 6:00~p.m. shift. The Staff Sergeant was not sure if he could give it to · the grievor but at 9:00.p.m. called him to return in the morning to do the escort duty. The grievor reported at 6:00 a.m. and worked through to 7:00 p.m. He received his regular shift pay plus one hour's overtime at double time. At the hearing the Ministry raised three new issues (only two of which concern us). - 5 - (1) It argued that the grievor agreed to do the extra hour before he left work on the 23rd, hence the service was not call- back, but rather overtime. And, (2) pursuant to Article 10.3 the grievor agreed to a shift change for the 24th to begin at 6:00 a.m. and just worked an extra hour. Vice-Chairman Samuels posed the issue as one of fact: did the grievor consent, or receive his assignment to work at 6:00 a.m. on the 14th, before he left for home at the end of his shift on the 23rd, i.e. was the Staff Sergeant in calling at 9:00 p.m. calling the grievor into work or merely confirming a pre- existing arrangement which was subject to the condition that the grievor's work did not conflict with the overtime test. He wrote at page 5: The early hour worked would be Call Back even if the grievor had indicated a willingness to work at 6 AM if the arrangement had not been established before the end of the grievor's shift. Pursuant to Article I4.I, if the employee leaves his place of work and is subsequently called back to work prior to the Starting time of his next scheduled shift, he is entitled to Call Back pay. Our only evidence came from the grievor and it is somewhat inconclusive. However, on balance we find that when the grievor went home after his shift on the 23rd, he did not really know whether he'd be working at 6 AM or not on the 24th. Hence, Sgt. Johnston's phone call at 9 PM was indeed a Call Back and the grievor was entitled to four hours pay at one and one- half times his basic hourly rate. It does not appear that union counsel in the case argued that Article 14 applied regardless of when the arrangement was made. The case appears to have been argued on the assumption - 6 - that "subsequently" means the call back is issued after the employee leaves his place of work. Mr. Ryder suggested in argument that in fact this is not a call back case at all and so I suppose for our purpose should be disregarded. But it is clear that the Board did decide it as a call back case and the Article 10.3 argument seems not to have been pursued. The Board has also interpreted Article 14 in Grant and the Ministr~ of Correctional Services (G.S.B. 197/83). This dealt with a situation where the grievor as he arrived at work prior to the commencement of his shift was given an assignment prior to the commencement of his shift. He was paid overtime for the time worked prior to the commencement of his shift but Vice-Chairman Kennedy denied the call back grievance stating at page 4 that there must be in fact a degree of inconvenience and a disruption of the employee, on the facts the grievor received no call at home and was not in any way disturbed or interfered with in relation to the time that he would normally have considered to be his own. It is obvious in terms of inconvenience there are several aspects~ to our issue: there is the inconvenience of working when normally the worker would be on his own time and there is the inconvenience of having to travel to work when · normally he would not travel to work. In the archetypical call back situation the grievor having left the work place is called to report back to work before his next shift. That sudden unpredicted return to work creates an additional disruption and inconvenience for the worker which is not necessarily present - 7 - when additional work is simply pre-scheduled. Mr. Ryder argued that a consistent and rational interpretation of Article 14 would require the finding that it applies to al_~l return to work situations outside the worker's normal schedule, i.e. pre-scheduled overtime as well as call back from home. Some collective agreements have specifically and separately provided for this - see for e.g. the provision in Alcan Canada Foils and Printin~ Spec,ialties & Pa~er Products Union, Local 466 (1974), 7 L.A.C. (2d) 72 referred to in Brown & Beatty Canadian Labour Arbitration (2nd Edition) at p. 615, fn. 531: 15(e) An~ employee called in for overtime work shall be paid a minimum of 4 hours work at overtime rates as hereinbefore provided. The union argued that if however this board should interpret 14.1 as it appears to be interpreted in Ricoh it would be an invitation to employees to avoid committing themselves to pre-scheduled overtime until it was clearly a call-back situa- tion, i.e, they-were called back after leaving the work place. Furthermore, it would give the employer the licence to'pre- schedule a few hours of overtime. Overtime i$ not necessarily voluntary. ~' The Ministry on the other hand argued that scheduling overtime is within management's authority under s. 18 of the Crown Employees Collective Bargaining Act and the interpretation proposed by the union for Article 74 would impose severe restric- tions on that authority. It would of course be a cost for pre- scheduled overtime of less than four hours duration when in a return to work situation. The Ministry also argued that the short ove'rtime situation was already covered by Article 13.2 which guarantees time and one-half for at least a half hour. The union did not share that view of Article 13.2. The real issue is what Article 14 was intended by the parties to accomplish. Clearly its basic purpose is to provide a minimum of four (4) hours pay for a call-back situation. Is it intended by the parties to guarantee that minimum in a pre- scheduled overtime situation? Notwithstanding all the union's policy arguments why workers should receive a guaranteed minimum on pre-scheduled overtime, the real issue is does that policy find itself reflected in the language of Article 147 In other words, is that what the parties bargained for and agreed to as reflected in the wording? The answer is no because the wording of Article 14 clearly sayz "leaves his place of Work and is subsequently called back to work prior to the start time of his next scheduled shift." That clearly means the actual notifica- tion to report to work prior to the start time of the ~ext scheduled shift occurs after he has left the work place, i.e. between his scheduled shifts. It is literally the archetypical call-back situation and that only. It cannot on its wording apply to pre-scheduled overtime and it is only the inconvenience of the archetypical call-back that I described above which the parties have dealt with in Article !4. In that respect the - 9 - interpretation which Vice-Chairman Samuels set out in Rich is in my view correct. The grievance is therefore dismissed. DATED AT TORONTO, Ontario this 22nd day of Nowmber , 1988. T~OMAS H. WILSON, VICE-CHAIRPErSON "i Dissent" ('Dissent Attached) J. SOLBERG, MEMBER G. MILLEY, MEMBER Article 14.! reads as folto~.~s: An employee who leaves his place of work and is subsequently called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of (4) hours pay at one and one- half ti~es his basic hourly rate. This Board has dec~ded that the clause "clea'rly means the actual notification to report to work prior to the start time of the next scheduled shift occurs after ne has left the work place, i.e. between his scheduled shifts." t disagree. !dcn't thlnk that's what this clause says at all. I think the clause is silent as to when any notification must take place. And thug the Board has reached its conclusion by incorrectly reading the idea of notification into the words "called back", which in my view simply means returning to work subsequent to the end of one shift and pricr to the beginning of the next scheduled shift. If as I suggest, the clause is ~itent about the issue of notification, then this becomes a factual situation where the pre-scheduled overtime also happens to be a call-back. And that only makes sense. Because, as in the instant case, when an employee has left her place of work and is required to return the following day to perform an authorized period of overtime, then the call-back and overtime provisions are not mutually exclusive but joined. And under those circumstances, I would have held that the employee ought to have been guaranteed the minimum four hours of work pursuant to the call-back provision with the attached premium rate of pay. ,!. S~lbery~