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HomeMy WebLinkAbout1988-0557.Fischuk.88-12-16 ONTARIO EMPL 0¥~:$ DE LA COUHONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~0 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z$-SUITE 2100 TELEPMONE/Tf. fL.~'£HONE 180, RUE DUNDAS OUEST, TORONTO~ (ONTARIO) MSG 1Z8. BUREAU2100 (416) 5~:0688 0557/88 IN T~ ~ATTE~ OF AN A~TRATtO~ Under THE CRO~4N EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLE~'4ENT BOARD Between: OPSEU (R. Fischuk) Or~evor - and - The Crown in Right of Ontario (Ministry of. Correctional Services) Employer. Before: R.L. Verity, D.C. Vice-Chairperson S. Hennessy Member A. Merritt Member For the Griever: M. Ruby Counsel Gow]ing & Henderson Barristers & Solicitors For the Employer: M. Galway Staff Relations Officer Ministry of Correctional Services HEAR!bIG: November 7, 1988 D~CISION In this matter, the grievance .filed alleges that the Employer has unreasonably delayed payment for statutory holidays worked. At the hearing, the relief requested was a declaratory order that the grievor did not receive payments in a timely fashion for work on two statutory holidays contrary to Articles 2.1 and 19.1 of the Collective Agreement. ARTICLE 19 - I~OLIDAY PAYMENT 19.1 Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked. with a minimum credit of seven and one-quarter (7-1/4), eight (8), or the. number of regularly scheduled hours, as' applicable. ARTICLE 2 -CHECK-OFF OF ~NION D(IES 2.1 There shall be deducted from the regular bi-weekly pay of every employee appointed to the regular staff of the civil service a sum in lieu of membership dues equivalent to the bi-weekly dues for the Ontario Public Service Employees Union. At the outset, the Employer raised a preliminary objection that the issue was inarbitrable. The 'Employer maintained that there had been no violation of the Collective Agreement in that the Agreement was silent on both the procedure for and the timing of payment for statutory holiday premium pa~'. The Union contended that the Board had jurisdiction to determine the merits of an alleged violation of the Collective Agreement. The Board reserved on this Preliminary matter and, with the parties consent, proceeded to hear the merits of the.grievance. On the objection to jurisdiction, we find that the grievance is arbitrable. The issue raised is the Employer's obligation regarding the method of payment of wages for work performed on a statutorY holiday. The Board rejects the Employer's argument that the issue involves "work methods and procedures" which is within the e~clusive authority of management under s. ~8(~)(a) of the Collective Agreement. Where the agreement is silent, the timing of payment of earned premium benefits id purely an administrative matter. The grievance before us involves concern for the administration of the Collective Agreement and the alleged interpretatipn of the combined effect of Articles 19.~ and 2.~ of the Agreement, Under s. 19(1) of the Crown Employees Collective Bar~ainin~ Act the Grievance Settlement Board is empowered to settle differences between the parties with regard to "the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether the matter is arbitrable". For these reasons, the Board concludes that we have jurisdiction to determine the merits. However, 'the onus is upon the grievor to establish that payment was unreasonably delayed. The relevant facts can be briefly summarized. The grievor, Richard Fischuk, is a Correctional Officer 2 at the Niagara Detention Centre. The grievor is scheduled to work three weeks in advance and is paid bi-weekly on Thursdays. in 1987, he worked Christmas Day, and Boxing Day, December 25 and 26 respectively, both designated holidays under Article 48.1 of the Collective Agreement. Accordingly, he is entitled to premium pay for work on a designated holiday under Article 19.1 of the Collective Agreement. The grievor received payment for the two holidays in question on February 4, 1988, some two pay periods later. The 9rievance alleges that the payment was unreasonably del ayed. The parties chose to call some oral evidence. The grievor testified briefly to outline his concerns. He stated that while occasionally payment for work on a designated holiday was made during the same pay period that the work was performed, the usual practice was that payment followed one or two pay periods later. The Employer called two witnesses. Robert Thomas is currently Senior Assistant Superintendent of the Niagara Detention Centre. He was previously Office Manager at the same institution. He stated that regular pay fo~ classified staff is processed automatically from Toronto on.a bi-weekly basis. He testified that the calculation of the extra benefit pay for classified staff is the responsibility of the institution's payroll clerk, a permanen~t part-time employee. The p~yroll clerk i.s responsible ~or the preparation of verified submission forms which are then forwarded by couri~r to the Ministry's payroll department in Toronto. Mr. Thomas testified that the average time delay in forwarding holiday pay submissions is seven to ten calendar days after the holiday has been worked. The payroll clerk has numerous other responsibilities including submissions to Toronto.for regular overtime worked, shift premium entitlement and the Submission of hours worked for all unclassified staff. Mr. Thomas testified that emplol'ees who work a statutory holiday at the beginning of a pay period would receive payment earlier than employees who work a holiday at the end of the pay period. Currently there are 89 classified staff and 11 unclassified staff at the Niagara Detention Centre. J. Clifford Weir is Manager, General Accounting at the Ministry's Toronto office. He and his staff administer the payroll of some 6,700 to 6,800 classified staff and 800 to 900 unclassified staff. Regular pay for classified staff is automatically processed every two weeks. Payroll cut-off dates are .established by the Ministry of Government Services beyond which adjustments will not be processed during a current pay period. Generally, the cut-off date is the day following a pay date; however, earlier cut-off dates are established by the Ministry of Government Services in December of each year. Mr. weir testified that the cut-off date for the January 7, 1988 pay was December 15, 1987. Mr. Weir stated that the input sheets ~rom the various institutions are processed by payroll clerks in his office and then forwarded to the Ministry of Government Services for key-punch entry into the central payroll system of the Ontario Government. Apparently, the key-punch process is performed by Ministry of Government Services employees or by outside agencies, if necessary. In the event of an error, there is a requirement for a resubmission into the central payroll system. Payroll cheques issued by the Ministry of Government Services are returned to the Ministry of Correctional Services for further verification and distribution. Mr. Weir's evidence was that for every pay date the Ministry of Correctional Services issues replacement cheques to correct errors. Mr. Weir listed the priorities of the Ministry's general accounting office as follows: ONGOING PAYROLL PROCESSING PRIORITIES 1. Changes to regular biweekly salary base for regular, classified staff increases or recoveries, new appointments 'and/or terminations. 2. Provision of payment to regular full-time' or part-time unclassified staff within same covering period as regular classified staff. 3. Provision of payments to irregular unclassified staff. SPECIAL PROCESSING PRIORITIES A. Negotiated salary awards dictating implementation date. B. Overtime payments within terms of the collective agreement. C. All other payments, deductions or adjustments relative to payrOll processing. SOME DELAY FACTORS A. Incomplete information received, re entitlement for various pay transactions. B. Early cut-off dates of input. C. Impact of salary revisions.. D. Key-punch errors resulting in rejections too late to resubmit. Mr. Weir's testimony was that all salary adjustments are processed as quickly as possible. Howver, he candidly acknowledged . that processing holiday premium pay was not a priority. Mr. Weir recalled that his office received information that the grievor had worked the two holidays in question on January 13, 1988. The cut-off date for the January 21 pay date was January 8, the day after the January 7 pay day. Accordingly, the grievor's pay was processed for the next available pay day, namely February 4, 1988. According to Mr. weir, "it would be humanly impossible under current conditions" to guarantee payment for work on a designated holiday within the next pay period following that holiday. - 8 - The Union contends that under the provisions of Article 2.1, the Employer is obligated' to pay all wages owing, including extra benefit pay, bi-weekly unless the Collective Agreement otherwise provides. Alternatively, in the event that Article 2.1 is deemed ambiguous, then the provisions of s.7(3) of the .Emplo~;ment S'tandards Act can be used as an aid to interpretation in support the Union's position. In the further alternative, Mr. Ruby contends that there is an implied term that payment should be made within a reasonable time frame. The Union contends that payment two pay periods later constitutes an unreasonable delay. On behalf of the Employer, Ms. Galway submits that the matter involves the determination of "work methods and procedures" and is therefore within the exclusive jurisdiction of the Employer under s.~8(1)(a) of the Crown Employees Collective Bargaining Act. In addition, she contends that to introduce the implied provision of reasonableness would alter, amend or enlarge ~he Collective Agreement, contrary to the provisions of Article 27.16. Alternatively, if a standard of reasonableness can be implied, the delay in payment in these circumstances was not unreasonable. A review of the evidence makes it clear that the Ontario Government has in place an elaborate and complex system for the. processing' of pay cheques, where some adjustment to the~basie salary is required. Article 19.~ provides for premium payment for work ~on a holiday designated as such in Article 48. 1.9.1 is silent' on a time frame for the payment of holiday premium pay. Similarly, there is no other provision in the Collective Agreement which stipulates a time at or a period within which holiday premium must be paid. Simply stated, the parties have not addressed that issue. By way of contrast, however, Article 13.3.2 states that overtime' work must be paid within two months of the pay period in which the overtime was worked. This panel adopts the'rationale of Vice-Chairman Brunner in OPSEU (union Grievance) and Ministry of Community and Social Services 488/85. That case involved alleged late payments of shift premiums and entitlement to interest. At p. 6 Mr. Brunner made the following comments: ...there is nothing in the Collective Agreement which stipulates a time at or a period within which shift premiums must be paid. Article ~1, which deals with the subject matter of shift premiums, is completely silent on this subject. This is to be contrasted to "overtime" which by Article 13.3.2 must be paid within two months of the pay period in which the overtime was worked. It is accordingly clear that the late payment of the shift premiums did not constitute a breach of any express term of the Collective Agreement... In the instant matter, the Board is satisfied that Article 2.1 does not assist the Union. That provision deals with employee deductions for Union dues from "the regular bi-weekly pay". Article 2.1 simply states that employees are paid on a regular bi-weekly basis. It cannot be said that premium payment in any form is a regular component of bi-weekly pay. The evidence was to the contrary. Premium payment for holidays worked under Article'19.1 usually followed one or two pay periods later. Where the parties intended that a definite pay arrangement is required, they do so as they have done in Article 13.'3.2. The real issue before us involves the proper administration of the Collective Agreement. Obviously, that Agreement governs the day to day operations of the work place; however, the Parties cannot be expected to address every problem that may arise during the term of the Agreement. In our view, there is.an obligation on the Employer to reasonably administer and interpret the Collective Agreement from the standpoint of its own obligations. This is the position adopted by Arbitrator Shime in Re International Nickel Co. of Canada Limited and United Steelworkers, Local 6500 (1977), ~4 L.A.C. (2d) 13. At p. 18, Mr. Shime developes the following rationale: We are also of the view that the recent decisions of the Supreme Court of Canada in Re McGavin Toastmaster Ltd. v. Ainscough et al. (~975), 54 D.L.R. (3d) ~, ~1975] 5 W.W.R. 444, 4 N.R. 618; and Syndicat Catholique des Employes de Magasins de Quebec, Inc. 18 D.L.R. (2d) 346, [~959] S.C.R. 206 as well as Re Polymer Corl~. and Oil, Chemical and Atomic Workers int'l Un'ion, LOcal 16-14 (~962), 33 - D.L.R. (2d) 124, [1962] S.C.R. 338 Subnom. Imbleau et al v. ~askin; C.P.R. Co. v. Zambry (1962), 34 D.L.R. (2d) 654, [1962]-S.C.R. 609, require arbitrators to view the Collective Agreement not only as the boundaries of the bargain struck by two equal parties who become co-authors of the Collective Agreement and responsible for its administration, but also as containing wit?:in those boundaries an implicit assumption that the terms and provisions of the Agreement must be construed so as to operate reasonably and with good faith during the life of the Collective Agreement; and this implicit assumption of reasonableness and good faith negates any theory which suggests that a Collective Agreement which must be fleshed out by arbitration is cast in the context of an implied management rights theory. See also Re Council of Printing Industries of Canada and Toronto Printing Press and Assistants' Union No. 10 et'al (1983), 149 D.L.R. (3d) 53 (Ont.C.A.). We turn now to apply the theory of reasonable administration and interpretation to the facts of the instant case. From the time the grievor earned the premium pay under the provisions of Article 19.1, the Employer was under an obligation to pay the benefit earned within a reasonable period of time. ~hat may or may not c0nsti~ute an unreasonable delay in payment of premium benefits becomes a matter of factual determination. The onus is on the grievor to establish unreasonable delay. On the evidence adduced, we do not find that the delay in payment in these circumstances was. unreasonable. Clearly, management has the authority to develop procedures for the payment of supplementary wage benefits. These procedures are in place and the guidelines and priorities of the Ministry of Correctional Services' payroll division appear to be reasonable. If indeed any fault is to be attributed for perceived delay in the instant matter, it must rest with the Niagara Detention Centre and not with the Ministry's payroll office. However, it appears from the evidence before us that' payment for work on a designated holiday two pay periods later is not unus6al. It is to be hoped that with the introduction of the fax system at the Ministry's payroll office in the summer of 1988 that complaints concerning payment delays will be greatly reduced. For the above reasons, this grievance must be dismissed. DATED at Brantford, Ontario, this i6th aay of December, 1988. ~. L. VERITY, Q.C. c hAIRPERSON "I Dissent" (Dissent Attached) S. HENNESSY - MEMBER '. A. MERRITT - MEMBER DISSENT =557!gS with re~pecL~ d[sa~re~ ~,[1. i~ i~s are real. lets w]th]:~ ~hw ha~d~, o~' the ~Dployep. .If it :i:~ ~',~ei[' ]:~ ~:~j~']',i- ~':~', ~:'.:~ ',h,~y '.:~t:~t bea~ the :'~':-.~L;',;':,J~:~" ~' :. ? : .. ~':,~ ~:t.:: t~ :::,.~'~a~cttab!e d~t~,,~ r~atwi th':;: anrt:i ~ Lhe ddn;~ his tz':~t Lye diff'~cu.[ t les Or, my vie~, of th~ evidence that w~..- &dcl~c:.~.d to the Boar.~ 5he employer couJd, by the rea~'pange~enL of i. ts payment priorities or the sin,pie addition of a half-time c!epicai pe:"~o~, ~i:::i:...-~,,: t~e problem geltJn~ the requJl'~d ihf:;;~;...~' 'o~: to the central pays'oil operation in t. tme far it to be calculated into the apppopriate bi-weekly pay, ~ wou]d have found that the delay in payment was unreasonable and issued a declaration that the %:'ie','oz~ did not receive payments it] a timely fashion under the collective agreement.,