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HomeMy WebLinkAbout1988-0052.McCormick.89-06-06 . . ONrAR~tO EMPLoYEs OE L~ COURONNE ' C~WN EMPLOYEES OE L ~ONTARtO GRIEVANCE CpMMlSSION DE S~LEMENT REGLEMENT BOARD DES GRIEFS ~ DUNDA~ STREET WES~ TORONT~ ONTARtQ ~ 1~-~2t~ TELEPHONE/TELePHONE 1~, RUE OUNDAS OUE~ ~RONTO, (ONTARIO~ MS~ 1~. BUR~U 2t~ (416~ 5~-~ 52/88 Under ~E CRO~ EHPLOYEES COLLECT~ B~INING ACT Before ~E GRImaCE SE~LEHENT BO~ Between: OPSEU (Wayne McCormick) - and - Gr~evor. The~Crown ~n Right of Ontario (~inistry of'Natural Resources) Before: Employer I. Springate - V~ce-Cha~ rperson ~. J. Thomson - ~ember ~. Wood - ~ember APP~ING FOR D.A. Crolla THE GRI ~OR ~ Counsel Gowl[ng &, Henderson Barristers & Sollcltors APPEARING FOR S~A. Currie THE ENPLOYER: Staff Relations Officer Human Resources Secretariat management Board of Cabinet July 15, 1988 AWARD The grievor is a conservation officer stationed at Carleton 9]ace. On January 28, 1988 he worked his scheduled hours of 8:00 a.m. to. 5:00 p,m. In order to complete an investilation, he subsequently returned to work from ~:00 to 8:00 p.m. The grievor received an overtime premium for the two hours in question. He contends that he should also have received a shift premium for the two hours because they were worked after S:O0 p.m. As detailed below, the collective agreement provides that an employee is not entitled to a'shift Premium if'his/her hours.of work normally fall within the period of 7:O0 a.m. to 5:00 p.m. Some 39 percent of all of the shifts worked by the grievor fall at least partly between the hours of 5:00 p.m. and 7:00 a.m. This percentage, however, varies over the course of a year. In certain months during the spring and fall over half of the grievor's shifts might fall at least partly outside of the period of 7:00 a.m, to 5:00 p.m. In the winter months very few of his shifts do so. Throughout the month of January 1988, the grievor was, with one exception, scheduled to work from 8:00 a.m. to 5:00 p.m. The exception was January 6th, when he was scheduled to work from 1:00 to 9:00 p.m. During the preceding month, December, 1987 the grievor was scheduled to work from 8:00 a.m, to 5:00 p.m. every working day but one, In February, 1988 he was scheduled to work from 8:00 a.m, to 5:00 p.m, on all but three days. The relevant provisions of the collective agreement provide as follows: ART:CLE 11 - SHZFT PRENZUN 11.1,1 Effective March 16, 1987, an employee shall receive a shift premium of forty-five cents (45c) per hour for all hours worked between 5:00 p.m. and midnight. Where'more than fifty percent (505) of the hoUrs worked fall within this period, the forty-five cents (45c) per hour premium shall be paid for all hours worked. 11,1,2 Notwithstanding 1.1,1,1, effective March 16, 1987, an employee shall receive a shift premium of fifty-five cents (55c) per hour for all hours worked between midnight and 7:00 a.m. Where more than fifty percent (50~) of the hours of worked fall within this period, the fifty-five cents (55c) per hour premium shall be paid for all hours worked. 11,2 Notwithstanding 11,1.1 and 11.1,2, where an employee's hours of work normally fall within 7:00 a,m. end 5:00 p.m., the employee shall not be entitled to receive a sh{~t premium ~or hours worked between 5:00 p.m. and 7:00 a,m. 11.3 Sh~ft premiums shall not be considered as part of an employee's basic hourl~ rate. 11,4 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. Although prior collective agreements provided for the payment of a shift premium for all hours worked between 5:00 p.m. and 7:00 a.m., the current agreement is the first to include Article 11.2. At the hearing we were advised that this was the first time the Board has been called upon to interpret this provision. The relationship between an overtime premium and a shift _. premium was before the Board on several occasions prior to the inclusion of Article 11.2 in the collective agreement. In Cameron 124/77 (Adams), the Board considered the general issue of whether the employer could be required to pay both a shift premium and an overtime premium with respect to the same time period. The Board concluded that if an employee'qualified for'both premiums, he/she- was entitled, to receive both. The award in Attwood 179/78 (Prichard), concerned an employee whose regular work day ran from 8:30 a.m. to 4:45 p.m. but who was, on occasion, required to continue working past 5:00 p.m. Reasoning that any time worked past 5i00 p.m. was referable to the employee's normal hours of work and did not represent part of another scheduled shift, the Board concluded that he 'did not qualify for a shift premium in addition to an overtime premium. In its award the Board commented on the purpose of a shift premium as follows: First,'the cases make clear that a shift premium is paid to compensate employees not for being required to work beyond the normal hours required by the agreement, but rather for regularly being required to work those normal hours when many others are enjoying ]eisure hours and when most employees can be presumed to prefer to do likewise, Indeed, this concept formed the basis for the Board's conclusion in Re Cameron that the premiums for overtime and shift work served different purposes and thus were not barred by the non-pyramiding clause. A somewhat similar fact situation to that in Attwood was before the Board in Robbins 165/78 (Swan), The panel of the Board hearing that case indicated that it like]y would have decided Attwood different]y, it also noted that when read together the Cameron and Attwood awards could produce some anomalous results, Notwithstanding these comments, in accordance with a general Board policy of following prior awards un]ess satisfied that they are "manifestly wrong", the. Board in Robbins followed the Attwood decision. It is.of interest that in Robbins the Board was concerned with an employee who worked a one shift operation' at the time he filed his grievance, but who apparently worked multiple shifts at other times of the year. The Board commented on this situation as follows: It appears ... that even someone on a shift ending before 5:00 p.m. in a multiple shift operation would' receive (a shift premium), if the justifications set out in Attwood are taken literally. If so, since the parties are careful to point out in the agreed statement of facts that the Cochrane office operates on one shift only from April to October, and we surmise that multiple shift operation is used in the winter, it may be that our grievor, Mr. Robbins',.could receive shift premium for an overtime hour in December that would not attract the payment in July. At the conclusion of the Robbins award, the Board commented on the lack of clarity in the relevant provisions of the collective agreement and noted that the parties might wish to re-negotiate t~e language to clearly express the result they wished to produce. Presumably the addition of Article 11.2 to the collective agreement was meant to Clarify the intent of the parties with respect to when a shift premium is payable. Article 11.2 now makes it clear that an employee whose regular work day consistently falls within the hours of 7:00 a.m, and 5:00 p,m, is not entitled to a shift premiuim on account of overtime work outside of those hours. The article is less clear, however, with respect to employees such as the grievor whose scheduled hours of work vary over the course of a year. The relatively narrow ~ssue in this case is whether as of January 26, 1988 the grievor's hours of work normally fell between 7:00 a.m. and 5:00 p,m. The union submits that to answer this question regard must be had to the total number of times throughout the year the grievor works outside of this time frame.. The employer disagrees, contending that one must look only at the time period during which he filed his grievance. As indicated in Attwood, the purpose o% an overtime premium is to compensate an employee for having to work longer hours than normal. A shift premium, however, is to compensate an employee who is required, as part of his regular schedule, to work hours which most employees would prefer, not to work. This distinction is'reflected in Article 11.2 which disentitles employees who normally work from 7:00 a.m. to 5:00 p.m. from receiving a shift premium even if they work past 5:00 p.m. Their entitlement is limited only to an overtime premium. 'While the si~dation might have been different at other times of the year, it cannot reasonably be said that in January of 1988 the grievor was being inconvenienced by being required to normally work outside of the hours of 7:00 a.m. and 5:00 p.m. All but one of his shifts fell within this time period. We conclude that at the time the grievor's hours of work normally fell within 7:00 a.m. and 5:00 p.m. Accordingly, while the 9rievor was entitled to receive an overtime premium with respect to the additional two hours he worked on January 26, 1988, he was not also entitled to. receive a shift premium. We note that this award addresses only the situation as it existed at the time the grievance was filed. We reach no conclusions as to whether or not the grievance might have succeeded had it been filed at a time when the grievor had a different work schedule. Having regard to the foregoing, the grievance is hereby dismissed. Da~ed at Toronto [his 6th da~ o[J~ae, t989. ~ember M. ~good, Member