HomeMy WebLinkAbout1988-0159.Mellun.88-10-17',~." C.~,~.~ ~..,~ ONTARIO ' EMPLOYESDELACOURONNE
-. . ~ .= GROWN EMPLOYEE$ DE L'ONTARfO
"' .... · ~ GRI~tANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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0159/88
IN TH~ M~.TTER OF AN ARBITNATION
Under
THE CROWN FJ~LOYEE$ ¢OLLECTI'FE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU [ Alex
Gr ~ evor
- and -
The Crow~ in ]~ght of
~Mirtistry o~ Correctional Services
~ployer
9afore: A, BarreT~ VAce-Chairperson
F. Taylor Member
D.C. Nontrose Member
For the Grievor: H. Law
Grievance OfFicer
Ontario Public Se~vine E~p3cyees Union
For ~he F~plo~er: C. S]ater
Senic}~ Co~.tnsel
Management Board of Cabfner
DECISIO~
The grievance in this matter reads as follows:
"I grieve that my hours of work were changed from Schedule 6
to Schedule 4.7 without my being notified and my salary has
not been adjusted accordingly as per article 7.6 of the
Collective Agreement."
Different groups of employees governed by this
Collective Agreemen~ have differen~ hours of work. Article
7 establishes Schedules and normal hours of work within
those Schedules, as well as~'providing for adjustments when an
employee transfers from one Schedule to another. The relevant
portions of Article 7 are set out below:
"ARTICLE 7 - HOURS OF WORK
7.1 SCHEDULE 3 and 3.7
The normal hours of work for employees on
these schedules shall be thirty-six and one
-quarter (36~) hours per week and seven and
one-quarter (74) hours per day.
7.2 SCHEDULE 4 and 4.7
The normal hours of work for employees on tkese
schedules shall be forty (40) hours per week and
eight(81 hours pe~ day.
7.3 SCHEDULZ 6
The normal hours of work for employees
on these schedules shall be a minimum of
thirty-six and one-quarter(36¼) hours per week
7.4 SCHEDULE A
Averaging of Hours of Work-see Appendix 3 attached
7.5 Where the Employer adjusts the number of hours
per week on a schedule, the employee's weekly
salary based on his basic hourly rate shall
be adjusted accordingly. The adjustment
will be discussed with the Union prior
to such adjustment being made.
7.6 Where the Employer intends to transfer
employees or an employee from one schedule
to another schedule, the Employer will discuss
the transfer with the Union prior to such
transfer. When the transfer occurs, the
employee's weekly salary based on his basic
D£CISION
The grievance in tkis matter reads as follows:
"I grieve that my hours of work were changed from Schedule 6
to Schedule 4.7 without my being notified and my salary has
not been adjusted accordingly as per article 7.6 of the
Collective Agreement."
Different groups of employees governed by this
Cellective Agreement have different hours of work. Article
7 establishes Schedules and normal hours of work within
those ~chedules, as well a$~'providing for adjustments when an
employee transfers from one Schedule to another. The relevant
portions of Article 7 are set out below:
ARTICLE 7 - HOURS OF WORK
7.1 SCHEDULE 3 and 3.7
The normal hours of work for employees on
these schedules shall be thirty-six and one
-quarter (36¼) hours per week and seven and
one-quarter (7¼) hours per day.
7.2 SCHEDULE 4 and 4.7
The normal hours of work for employees on these
schedules shall be forty (40) hours per week and
eight(8) hours per day.
7.3 SCHEDULE 6
The normal hours of work for employees
on these schedules shall be a minimum of
thirty-six and one-quarter(36¼) hours per week
7.4 SCHEDULE A
Averaging ~of Hours of Work-see Appendix 3 attached
7.5 Where the Employer adjusts the number of hours
per week on a schedule, the employee's weekly
salary based on his basic hourly rate shall
be adjusted accordingly. The adjustment
will be discussed with the Union prior
to such adjustment being made.
7.6 Where the Employer intends to transfer
employees or an employee from one schedule
to another schedule, the Employer will discuss
the transfer with the Union prior to such
transfer. When the transfer occurs, the
employee's weekly salary based on his basic
hourly rate shall be adjusted accordingly."
~he foundation for this grievance arose when the Employer
and Union agreed by a written Memorandum of Settlement to
transfer a whole class of employees, Hospital Housekeeper 2's,
from Schedule 6'to Schedule 4. Shortly thereafter a new salary
for Hospital Housekeeper 2's was negotiated between the par~ies
and embodied in the Collective Agreement. Essentially, the
grievor claims that the job used to be a 36% hcur a week job
and is now a forty-hour a week job,. and his hourly rate of pay
should be adjusted upwards pursuant to Articla 7.6 to reflect
the increased hours of work.
The facts giving rise to this grievance are not in
dispute and were set out by the parties in an agreed Statement
of Facts as follows:
" 1. She Grievor is employed as a Sanitation
Supervisor for the Ministry of Correctional
Services at the Guelph Correctional Centre.
The position is classified as a Hospital
Housekeeper 2 position pursuant to the
Crown's classification system.
2. Mr. Mellun, the Grievor, wa~ appointed to
this position on May 4, 1987 as the result of
a competition.
3. Prior to the appointment of Mr. Mellun to the
position of Sanitation Supervisor, ~ospital
Housekeeper 2, the parties negotiated a
change in classifications, including the
classification of Hospital Housekeeper 2
and the positions included in this classification.
The result of these negotiations was a
Memorandum of Settlement between the Union
and the Crown, signed on February 3, 1987.
4. In the Memorandum of Settlement, the parties
agreed to the transfer of the Hospital Housekeeper 2
class from Schedule 6 of the hours of work
schedule to Schedule 4 of the hours of work schedule
-3-
5. This memorandum was ratified by the parties
on March 31, 1987. March 13, 1987 was
the effective date of the transfer of the
Hospital Housekeeper 2 class, and the positions
in this class, from Schedule 6 to Schedule 4.
This Memorandum of Settlement formed the
basis of the Collective Agreement between
the parties covering working conditions and
employee benefits for the term of January 1,
1986 to December 31, i988.
6. The Grievor's salary upon appointment was
$614.98 per week. This was the result of
a further Memorandum of Settlement covering
salaries in the General Occupational group,
which included the Hospital Housekeeper 2
class, signed on March 21, 1987. This
Memorandum of Settlement was embodied in a
Collective Agreement coverin~ salaries in
the General Occupational group signed by
the parties on April 16, 1987.
7. Prior to the Grievor's appointment to the
position of Sanitation Supervisor, Hospital
~ousekeeper 2, the position was filed by Mr.
Harry Flynn. Mr. Flynn retired from the
position on December 31, 1986.
8. The vacancy created by the retirement of Mr.
Flynn was advertised in a February edition of
the Crown's publication, topical. The February
advertisement indicated that the position
was in Schedule 6. The advertisement indicated
that the deadline for applications was March
6, 1987. The Grievor submitted his application
for the position in a timely manner and was
granted an interview on April 8, 1987. He
was subsequently offered the job over the telephone
and, on April 27, 1987, was sent a letter
confirming his appointment to the position
effective May 4, 1987. This letter made no
reference to the hours of work schedule covering
the position. The grievor was first informed
on May 4, 1987 that the position was in Schedule
4.
9. When Mr. Flynn worked as the Sanitation Supervisor,
Hospital Housekeeper 2, and the position was in
Schedule 6, Mr. Flynn's normal hours of work
were 40 per week. Mr. Flynn's normal hours of
work a week had been 40 since his appointment to
the position, some years prior to his retirement.
10. When Mr. Mellun was appointed to the position, after
the transfer of the position to Schedule 4, Mr.
Mellun's normal hours of work per week were 40.
In the interim between the retirement
of Mr. F!ynn and the appointment of
Mr. Mellun, the duties of the Sanitation
Supervisor position were assigned to a
Correctional Officer 2 at the facility,
Mr. Wayne Smith. During the time of his
assignment to the duties of Sanitation
Supervisor, Mr. Smith worked and continued
to be paid on the basis of a 40-hour work
week as are all Correctional Officer 2's at
the facility. Mr. Smith was paid the higher
rate of the Hospital Housekeeper 2 position
during the time of his assignment pursuant
to Article 6 of the Collective Agreemest."
It is to be noted that Schedule 6 employees have a
minimum number of hcurs of work per week but no maximum.
Schedule 6 employees are not entitled to overtime pay
pursuant to Article 13 which covers.overtime pay for all
other Schedules of employees. The only entitlement under
that article for Schedule 6 employees is to equivalent time
off if they are required to work on a day off. Thus it is
conceivable that a Schedule 6 employee could be required
to work 60 hours per week with no overtime pay.
The Union argue~, first, that even though ~the grievor
himself was not actually transfe.r~e~ ~romS~hedule .6 ~o
Schedule 4 because he was not appointed until after the
new Schedules were in place, nevertheless he should have
the advantage of Article 7.6 because he "steps into the
shoes of" the previous incumbent, Mr. Flynn. The ~ployer
replies that Article 7.6 is clearly intended to adjust
salaries of people who move from one Schedule to'the
other while holding a job,and that it is individuals
only who are intended to be compensated. Further, the Ur~
interpretation would in fact create ~ new wage scale for
positions within a classification if it were the positioz
that was to be adjusted as opposed to single employees or
groups of employees who were obliged by the re-classific~i~
to work either longer or shorter normal hours of work.
Employer postulates that if the Union interpretation wer~ ~
be accepted it could entirely back fire on it because th~
Employer is entitled to transfer groups of employees from
one Schedule to another under its Managemen~ Rights powe~ ~
the Collective Agreement and could theoretically move al~
to Schedule 6, thus reducing the number of hours of work ~r
week for all except Schedule 3 employees, with an attend~%
reduction in pay due to the shorter kours of work.
The Union's second argument is that a "basic hourly rm~e"
must be established for the purpcses of Article 7 and that
the only hours referred to for Schedule 6 employees are ~%
hours per week and therefore that should be the benchmark,
The Employer argues that the grievor, Mr. Mellun, was ne~e~ &
Schedule 6 employee and therefore Article 7.6 has no appli~a%i~n
to him because he was not transferred from one Schedule to
another. At the time Mr. Mellun was appointed to the job it
was a Schedule 4 job. He has always worked forty hours per week
on the job, as did his previous incumbent for many years. The
Employer says that the grievor is claiming more salary for
the same work and thus seeking to amend the Collective Agreement
-as it relates to wage rates.
The Employer points out that Schedule 6 employees have
"minimum" hours of work unlike Schedule 3 or Schedule 4 employees.
The Employer says that "normal hours of work" are the hours you
actually work on a regular basis. The effect of the Union
argument is to read out the word "minimum" in Article 7.3. The
Employer says that if Article 7.6 were intended to effect a
permanent change in salary schedules, then the Collective
Agreement should reflect that reality, but it does not. After
the Schedules were changed the wage rates were negotiated and
a weekly salary of $614.00 was established for ~ospital
Housekeepers 2. On the Union interpretation of Article 7.6,
the wage.rates for all Hospital Housekeepers 2 would rise to
$670.00 per week.
The Union relies on a Grievance Settlement Board decision
~275/8~ (Fawcett) where the Board held that Schedule 6 employees
were entitled to travelling time under Article 23.6, against
the Employer's objection that because Schedule 6 employees had
ho. maximum hours of work, travel was simply part of their work
and should not be compensated for in addition to their annual
salary. The Board in that case noted that Schedule 6'employees
were treated differently under the Collective Agreement for
purposes of overtime and holiday payments by specific reference
in those articles. Article 23 did not provide special treatment
for Schedule 6 employees and therefore was intended to cover
all employees. In that case, it was conceeded by the Employer
that the grievor's normal hours of work were 7% per day and 36¼ per week.
This case differs from Fawcett in that, first of all; the
normal hours of work for Hospital Housekeepers has always been
40 hours per week, and in Fawcett, the Employer conceeded that
the normal hours of work for that grievo~ were 36%.
We have concluded: First that Article 7.6 applies to
individual employees who while incumbents of a 3ob are transferred
from one Schedule to another. The Article does not, and was not
intended to raise or lower the pay rates for an entire classifi-
cation on a permanent basis. Pay rates for classifications are
bargained separately in the collective bargaining process and
it is only individuals who are to receive adjustments pursuant
to Article 7.6.
Secondly, Mr. Mellun was never a Schedule 6 employee and
Article 7.6 would not apply to him in any event.
Finally, in determining the "Normal hours of work" for
Schedule 6 employees, who are an exceptional group, reference
must be made to actual working hours.
For all of the above reasons, the grievance is
dismissed.
Dated at Toronto, this 17Ch. day of October, 1988.
Anne Barrett, ~ce-C~ai~person
F. Taylor, Me