HomeMy WebLinkAbout1988-0648.Cuomo.88-12-19 ONTAR.~O EMPLOYES DE LA COURONNE
" ~ CROWN EMPLOYEES DE ~.'ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT R GLEMENT
180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 -SUtTE 2100 TELEPHONE/T~LL6PHONE
180, IRUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG IZ8 - BUREAU2100 (416) 598-0688
: 648/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES BARGAINING ACT
Before
THE GR!EVA~CE SETTLEMENT BOARD
Between: OPSEU (S Cuomo)
~ Griever
- and -
'the Crown in Ri2ght of Ontario
rMinistry of Correctional Services)
i Employer
Before: P. Knopf i Vice-Chairperson
J. Solberg I Member
D. Montrose i Member
For the Griever: M. Bevan ]
Grievance OffiCer
Ontario PublicI Service Emmloyees Union
For the Employer: M. Galway t
Staff Relations Officer
Human Resource~ Management
Ministry of CoPrectiona] Services
HEARING: November 22, 1988
DEC tS ION
Th~s case involves a question of interpretation of
Article 19.4 of thy collective agrem3nt. Article 13.4
prov ides;
Any comoensatin~ leace accumulated under
sections 19.2 and 19.3 may 3e taken off at a
time mutually agreed upon. Faiiin~ a§reement,
such, time oft may be taken in conjunction
with the employee's vacation leave or regular
daf(s) off if requested one (1) month in
advance.
?he pa~ties agree that if 30 days' notice is .Diven by the
crop!oeec of a desire to take a ~ay off in conjunction with
his regula_~ days off, his request must be hoaoured. However,
~he issue in this case is whether the employee is entitled to
more than one day off if the requisite notice is given.
The carries are simply seekin9 a declaration to gl'ce
them .assistance in the interpretation of the collective
agreement. However, the agreed facts which gave rise to this
question are as follows. The grievor had accumulated a
number o~ days o~ "compensating leave" ~o his credit. He
gave 30 days' notice that he wished to have five. da~s off in
a row. Specifically, his regular days off were July 5, 6, 12
and 13. His request concerned July 7, B, 9, 10 and 11. The
grievor was told that he could have one day off but mot the
other four because they were not "in conjunction" with his
regular days off. Specifically, he was told he could have
3uly 7 nsf because it was in conjunction with July 5 and 6
and that he could perhaps be given July 11 as well because it
was "in conjunction with" July 12 an] 13. But the grievor
was told he would not be alloweJ July ~, 9, and 10 off
Dec.~use they were ,ct in conjunction with
o f
, The Un,on argues than Article 19. i sets out only two
oaram~ters for the utilizau:on of compensating leave.
it is acknowledged that the time must h~ze ~e~n accumulated.
Sscondly, it is acknowledged that at least 39 days' notice
re.sst be given. ~heceaftes, the Union aP~u~s that any amount
no l~mi~ on the amount of tim~2. I~ is s~ossed that i~ only
eno day was ailow~d to De %aKe:% in Cor%jdF~ctlon w~ Lh
Ministry operate on a i2-nour compressed wo~ week.
they earn only eight hours in the "bank" of lieu nime for any
statutorf holigay. Thus, if the Employer were correct to say
that only one day may be taken in conjunction with
regular days off, if aa employee exercises his rights under
A~ticle 19.g he would only be allowed %o use eight ho.gus
on the day he wanted to De off. ?herefore, the Union argue~
that as long as the time was accumulated and pro,er notice
given, and that the time is to be taken in one ~rouo of lime
in conjunction with r~Gular days off, then nothing i~ the
collective a~reement prohibits what this gri~vo~ was seeking.
In response to ~he Union's argument, uhe Employer
offered two main 9roun~Js of ~efence. First, it was arDued
that if the purpose of Article 19 and the collective
agreement as a whole is £ecognize,], then we should accept
that the number of days an employee has unilateral sche~Juiin~
rights over she.eld be limi t~d ~o the circumstances
which ghe lieu ,Ja~s were earneJ. Specifically, if %~le lieu
d~y3 w~.~ ea~neJ for a s~n.~]a iso!a~ed hot,lay, EheR
day rlDhts sl~ou]d only ne in res?,)ct of a single isolat~J
(l~f. We were asked to re~J Artirle 19 as .:~ whole an.] to
it in coajuncCion with Article 43 which spe}.[s out the
statutory holidays. We were reminded that .holiday pay is
de$igne~ to compensat~ for the loss el the opportunity to
celebrate on the designated Jay and to compensate [o'r th~
loss o~ a break in the regular working routine. We were
referred to the cases of M_.a_s_~_y-Harris-Fer[lu~so_n- (1955), L.A.C.
2123 <MacRae), McGreqor et al. a_nd_ MJD_!~st_Lry of Community__&_
Sociai Services, GSB File 857/87 (Witsom) and Bell and
Ministr_ii of Communi__~y and Social Services, GSB File 1t.3,/7~
(Sw zn ~on ).
nth-shift workers. It was pointed out that of[ice wet,ecs
almost invariably will De given the statutory holiday o~f
wilt be requir~ to take them when they fall. Only
Christmas an~ Boxtag Day or Good Friday amd Easmer Mon~ay
cier~cal workers get any extende~ breaks. Otherwise, the
s~a~o~y holidays simply ~ive ~h~m on~ ~ay w~[hin tnt mid~ie
of 5he week or a lon9 weekenJ. However, it was submitte~
that if the Union's argument were to prevail, shift workers
could conceivably accumulate 11 lieu days am~ ga~a the
benefi~ of an extended vacation that wo~ld not De available
~o o[fice workers. It was ~rgued ~bat ~his would sub,esl
~nequity gham ought not to be considered to have Peen the
in~ent~on o~ the parties. We were referred to Sears an~
Minisnr~ of Communi%~and Social Services, GSB File 1129/~6
(M, G. Picher), to suQQest that unless there' is a reason for
a fis[inction between two groups of employees, the contract
shou!~ not be r~ad to imply such a ~istinc%ion.
The Employer's other arO~nent in Jefence of the
~jrievance was that Article 19.4 ou!4ht to 1o.~ ~'e~'J to contain
an implied requirement of reasona;)lencss ~,n the ex~clse of
the employee's rights. It w3s sa].] t.,~t .-~ {~ilu?~ to
exorcise the rights affotdo'i t:o thc ,'*;:}:~[;,:'.'~.3 :.lnd,':'
ArLic/e L9.4 wiZhi~ a re-~sona',).[e period of cJm,~, ougi~c zo
amount to a Z~SS off ~hose [ighzs. th was argued chat
Article 19 as a whole provided for how and when holiday
payment sJ%ould be accumulated dy taken. Article 19.4 merely
provided for the circumstances upon which an employee may
unilaterally have the right ~o take time off if ~e mee~s the
conditions of Article 19.4. It was said :hat unless those
conditions were met and unless the request was made for that
time within a r~asonable period of time, then the
compensatin~ leave which may have been accumulated woul~ then
simply 9e paid out under Article 19.5. The Employer argues
taat ghe ~.)asis of the assertion that ~he~e ~s an ~mp~e~ d~ty
of reasonaDieness in Article 19.4 comes from Zhe declaratory
order issued in the Tremblav ~ecision, SSB ?ile 185/31
'~',.'er~ty). ~ha5 order concluded:
In the event that the employee fails to exercise
his discretion in selecting lieu day or days, and
the scheduling thereof, within a reasonable time
after the failure to reach a mutual agreement unde~
Article 19.4, ~he provisions of Article 19.5 shall
De deemed to apply.
It was suggested that a "reasonable period of time" in which
the rights under Article 19.4 can be exefcised should be
accepted as 30 days as a result of the TremDlay decision.
The Decision
The Employer has asked us to read Article 19.4 as
containing an implied duty of reasonableness as well as a
limitation on the amount of days which may be taken off. It
is readily acknowledged t!%at there is no specific language {n
Article 19.4 which would suggest such a reading but wa are
urged to look at the collective agreement as a whole and the
purpose of the Article to reach such a conclusion. We agree
with the Ministry ~hat the Article must not De read in
'iso!atioa and must be read as part o[ the collective
agreement as a whole. We also a.~ree that a board of
arbitration should ~ive a purposive interpretation to
provisions of a collective agreement. However, with the
9rea~test of respect for Ms. Galway's thoughtful, analytical
and skillful argument, we do not agree that the collective
agreement contains the restrictions which were suggested.
There are several reasons for our conclusion. First,
the langua§e in Article 19.4 does put some restrictions on
wh.=n compensa%in.~ leave .may be taken. As acknowledged D'f the
Union, unless the par%i-~s a~ree, compensating leave may not
De ~a~.e.q off u,nless it has 'o.~en accumulated, is in
conjunction with the emploaxee'$ vacation leave o.~ re~.~!ar
days o~, and is requesnad one month in advance, these are
the only three restrictions which have been placed upon when
an employee may utilize compensatin~ leave. The parties
could have easily specified the maximum amount of leave which
may be taken at one given period. However, they chose nor. t.o
do so. On the contrary, the !anguage of Article 19.4 speaks
of "any compensatin9 leave ac.c_umulate~ .... " [~mphasis
added]. There would De little or no purpose to the words
"any" or "accumulated" if leave could not be accdmulated.
Further, the wordin~ of the Article 'makes it clear that "any
compensa~in,~ leave accumulated ... may be taken off ...".
This clearly implies that any amount of leave may be taken
of~. The parties could have specifie~ that one .Jay be taken
off at a time or one ~ay be utilized at a time but again,
they declined to do so. Thus, we can see nothin~ in the
Article that restricts the amount ~hat should be taken off
when it nas accumulated in %he "Dank" of compensatin~ leave.
We also do not accept that the collective a~reement
requires that the rights under Article 19.4 must De utilized
within 30 days oc within any other period except as specifi~{d
in Article 19.5. A~-%icle 19.5 provi.Jes:
Any compensating lea'ce accumulated under
sections 19.2 and 13.3 in a calendar year which is
not use,i before March 31 of the foiiowin~ year
shall De paid at the rate it was earned. Effective
March 1, 1978, the March 31 date may be extended by
a~reement Of the local or at the local or Ministry
level.
!n Article 19.5 the parties have specifically turne'~ their
minds [o how long compensating leave may accumulate and what
si]ould i~appen at .qarcn 31 of each calendar year.
Spesi~!ca![~], ti~e oarLies have agreei zhat the amounz %h1%
has asc'~mulabed should be paii out snless it was ~til[zel.
Having made this specific agreement, we $.~e n,..~ basis for zhe
suggestion that the parties have impliedly agrsed that
Article 19.4 must be utii~zed in a less or restricted time.
The Tremblay declaration which the Employer relies ~pon does
say that if an employee fails to exercise his discretion zo
select a lieu day "within a reasonable time after the failure
to reach a mutual a~reemcnt under Article 19.4, tho
provisions of Article 19.5 shall be deeme~ to apply."
However, since the ~re_m_.b_.l_a_~ decision, the ~arties negotiated
the one-month advance notice provision in Article 19.4. The
TremDlay declaration was clearly an attempt by that Boar~ to
r~uire that reasonable notice be given the Employer. The
parties have since defined that reasonable period be as one
month. But we do not read %he declaratory order in the
?remb!a~_ decision-as creating a further restriction on
Article 19.4 that says chat unless the rights under
Article 19.4 are utilized within one month then they are
lost. Such a readin_o would De a significant curtailment of
the rights contained ~n the Article and, absent express
language in that regart, such a readin~ is not appropriate.
%';a ara s,ympat, hettc ~o th.e .~i.qlSt. r'/'S argumen~ that
success o~ the Un~on's ads{ t~on ~n this :iasc wou]:'] resu]t
in shi~t employees ~heoreticallj being able [J
prolonged periods of absence tl]a[ clerical employees would
never be able to replicate. We agree that a collective
agre~ement should De interp~e~e~ as much as possible ~o insure
equity to all the workers cover~ by its terms. However,
there are ~wo answers to this argument. First, w~ere
parties have specifically diffe~ent~ate~ b~tween the rig~.~s
of shi~t an~ non-shift workers, those ~i~hts m~st ~e
nonoured. Clearly, special Drovisions in Article 1~
which grant ex~ra compensation an~ rights to compensation to
employees w~o are r~quire~ to wo~'K o~ StaLed'D2i'
This is most certainly deslgnef to compensat-z for
employees' loss et opportunity to a=~ winh thelt~ families .~n:~!
celebrate statutory holidays such as 'C~irists~as, ~'i~.5%a
Remembrance Day on the designated ~ays. Second, the
granted under Article 19.4 to uaLlaterally scheJule lieu days
off, even in a group, may be small comfort to a shift-work
employee and his/her family as compensation for ~he loss
=he ability to celebrate the designated holi:i~ys together.
?~%us, =ilcr.3 may nj% De such a lar.}e inequality between the
two groups of employees as is suggested by the Ministry.
However, in any event, we conclude that the .language
of Article 19.4 must be given its clear meaning. The only
restrictions on ~he scheduling of compensating leave wher~
mutual agreement is not possible is that the t~me must be
taken in conjunction with ~he employee's vacation or renu!ar
days off, and the time r~dst be r'e~uested one month in
aSvance. Where the employee desires and the osher
raquirements of Article 19.4 are m~t, mor~ than one ~ay at a
time may be demanded.
We t~uet that this declaration wJ. ll be of assistance
to the parties. We remain seized with the matter should any
further assistance be required.
DATED at Toronto, Ontario this 19thlay of December,
19B~.
'~liSn~r S~e, Member