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HomeMy WebLinkAboutGuigue 91-10-11 Original - 90C637 (S) IN THE MATTER OF AN ARBITRATION BETWEEN: ALGONQUIN COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCE OF G,. GUIGUE j BOARD OF ARBITRATION: JANE H. DEVLIN CHAIRMAN ALLEN S. MERRITT COLLEGE NOMINEE PETER KLYM UNION NOMINEE Stephen J. Shamie, for the College Peter J. Lukasiewicz, for the Union OPSEU FILE NO.: 90C637 DATE OF HEARING: September 12, 1991 LOCATION OF HEARING: Toronto, Ontario The issue in this case concerns the Grievor's entitlement to shift premium in addition to overtime pay. The subject of shift premium is dealt with in Article 7.5 of the Collective Agreement which provides as follows: 7.5 Shift Premium The College shall pay a shift premium of forty (40) cents per hour for all hours worked between 5 p.m. and midnight and fifty-five (55) cents per hour for all hours worked between midnight and 6 a.m. Where more than fifty (50) percent of the hours worked on any regular shift fall within the period attracting the higher premium, the higher premium shall be paid for all hours worked. Effective April 1, 1991, the shift premium shall be increased to forty-five (45) cents per hour for all hours worked between 5 p.m. and midnight and shall be increased to sixty (60) cents per hour for all hours worked between midnight and 6 a.m. The facts which gave rise to the grievance are not in dispute. The Grievor is one of a number of Computer Operators who work at the College's Computer Centre. Operators at the Centre rotate through four shifts on a weekly basis. These shifts are as follows: shift no. 1 - 0600 to 1400 hours - Monday to Friday Shift no. 2 - 1330 to 2130 hours - Monday to Friday Shift no. 3 - 2000 to 0600 hours - Tuesday to Friday Shift no. 4 - 2100 to 0700 hours - Monday to Thursday When a Computer Operator is regularly scheduled to work on either shift no. 2, 3 or 4, he is paid the appropriate shift. 2 premium in accordance with Article 7.5 of the Collective Agreement. There are, however, occasions when a Computer Operator is requested to work an additional shift in the absence of another Operator. When this occurs, the replacement Operator works for the entire shift and is paid overtime but is not paid shift premium. It is College's failure to pay shift premium in these circumstances which gave rise to the grievance of Mr. Guigue. The subject of overtime is dealt with in Article 6.2 of the Collective Agreement and this together with other relevant provisions of the Agreement are as follows: 6.2 Overtime 6.2.1 Office/Administrative/Computer/ Technical/Human Services Employees An employee in a classification referred to in Article 6.1.1 shall be paid at the overtime rate of time and one-half the employee's hourly rate for authorized work performed: - consisting of a work period of at least one- quarter hour in a day over the normal daily hours designated by the College of seven (7), seven and one-quarter (7 1/4) or seven and one-half (7 1/2) for the employees concerned; or - consisting of a cumulative work period of at least one-half hour over the normal work week of thirty- five (35), thirty-six and one-quarter (36 1/4) or thirty-seven and one-half (37 1/2) hours per week as may be designated by the College for the employees concerned; or - on an employee's sixth day of work in the week concerned· 6.2.3 Seventh Day - Double Time Employees referred to in Articles 6.1.1 and 6.1.2 shall be entitled to payment at the overtime rate of double the employee's hourly rate for all authorized work performed on the employee,'s seventh day of work in the week concerned. Employees engaged in continuous operations or on special shifts excluded from Articles 6.1.1 and 6.1.2 shall nevertheless be entitled to payment at the overtime rate of double the employee's hourly rate for all authorized work performed on what amounts to any second day of rest in their schedule provided they have completed their regularly scheduled days of work and performed work on what amounts to any first day in their schedule. Employees who have completed their regularly scheduled days of work but have not performed work on what amounts to any first day of rest in their schedule shall receive time and one-half their hourly rate for authorized work performed on what amounts to any second day of rest in their schedule. 6.2.4 Overtime Pay - No Pyramiding There shall be no duplication or pyramiding of overtime payment nor shall the same hours worked be counted as part of the normal work week and also as hours for which an overtime premium is payable· 6.3 Shift Schedules 6.3.2 Shift Rotation Where employees are required to rotate amongst shifts, the College shall endeavour to schedule shifts so that there will be a minimum of fifteen (15) hours between the end of the employee's regularly scheduled shift and the commencement of'his/her new shift. Where there is one (1) or two (2) days off between the change of shift, the College shall endeavour to provide for thirty-nine (39) hours and sixty (60) hours, respectively, between the end of the employee's regularly scheduled shift and the commencement of his/her new shift. 6.3.3 Notice of Shift Change The College will give at least two (2) weeks' notice with respect to changes in scheduled shifts except in circumstances beyond its control. The College further agrees that where major changes in shift schedules 4 (including new shift schedules) are to be implemented, it will first discuss such changes with the Union College Committee and hear any representations by it provided such representations are made promptly and will attempt, in any such case, to give at least three (3) weeks' notice. 6.4 Call Back Where an employee has completed his/her regularly scheduled hours of work and is subsequently called back before the commencement of his/her next ~egularly scheduled shift, he/she shall receive payment for all hours worked at the applicable overtime rate with a minimum guarantee of four (4) hours overtime at time and one-half his/her regular rate of pay except to the extent that such period of four (4) hours overlaps or extends into his/her regular hours of work. It is understood that this provision has no application in cases of change in an employee's regular hours of work or scheduled overtime including overtime commencing immediately following the completion of an employee's regular schedule of work. 6.5 Meal Allowance Where an employee is required to work more than three (3) continuous hours on completion of his/her regular shift and has not been given notice of such overtime on the prior day or before, he/she shall be entitled to a meal allowance not to exceed $5.00 It was the submission of Mr. Lukasiewicz, on behalf of the Union, that the language of Article 7.5 is clear in providing for the payment of a premium when an employee is required to work on a shift which involves less desirable hours. To this extent, it was contended that shift premium serves a different purpose than overtime pay which is designed to compensate an employee for working hours in addition to his regular shift. Mr. Lukasiewicz further submitted that although Article 6.2.4. proscribes pyramiding, this is restricted to overtime and does not preclude the payment of both overtime and shift premium when an employee 5 works on a shift which satisfies the requirements of Article 7.5. Accordingly, Mr. Lukasiewicz requested that we find that when the Grievor replaces another Operator and works throughout shift no. 2, 3 or 4, he is entitled to shift premium in addition to overtime pay. It was further submitted that shift premium forms part of the base for purposes of calculating overtime entitlement. In the alternative, Mr. Lukasiewicz contended that the amount of shift premium must be added to the Grievor's overtime pay. It was the submission of Mr. Shamie, on behalf of the College, that an employee is entitled to shift premium only when he is regularly scheduled to work on a shift which attracts premium pay as provided in Article 7.5. For this reason, it was submitted that the Grievor is not entitled to shift premium when he replaces another Operator and works an additional shift which is not his regularly scheduled shift. In these circumstances, Mr. Shamie contended that the Grievor is entitled only to overtime pay in accordance with Article 6.2. Mr. Shamie also pointed out that Article 6.2.4 provides that there shall be "no duplication or pyramiding of overtime payment" and he contended that this precludes the payment of any other premium in addition to overtime pay. In the alternative and in the event that the Board were to find that the Grievor is entitled to both overtime and shift premium when he replaces another Operator on shift no. 6 2, 3 or 4, it was submitted that shift premium does not form part of the base for purposes of calculating overtime pay. During the course of argument, both parties referred to the award in St Clair College and Ontario Public-Service Employees Union June 16, 1987 (Brent (unreported)) which also involved a claim for shift premium under Article 7.5. In that case, the Grievors regularly worked on the day shift from 8:30 a.m. to 4:00 or 4:30 p.m. and, on occasion, they were asked to work overtime and worked as late as 8:00 p.m. In such circumstances, the Grievors claimed shift premium in addition to overtime pay. In disposing of their claim, the Board which was chaired by Mrs. Brent, had this to say: The first matter to be determined is whether the grievors are entitled to shift premium at all. Only if it is determined that the hours which they worked and for which they claim shift premium could attract such a premium is it necessary to determine the pyramiding issue. The Union's claim is based on the fact that some of the hours which the grievors actually worked were between 5:00 p.m. and midnight. The College's assertion is that the premium only attaches to those hours when they form part of a shift which it has scheduled and which requires employees to work between the h'ours of 5:00 p.m. and midnight as part of their regular hours of work. Most of the portions of the collective agreement cited to us by the College were in support of its position that the collective agreement contemplates regularly scheduled shifts and that it has provided for a shift premium to be paid when a shift has been scheduled to include the hours set out in Article 7.5. Clearly, if the word "shift" were absent from the first sentence of Article 7.5, then the reasonable interpretation which could be given to the clause is that the College must pay a premium whenever an employee does any work after 5:00 p.m. and before 6:00 a.m. The presence of the word "shift" modifying "premium" does, in our view, change the thrust of Article 7.5 from being a premium payable for all hours 7 coming within the defined parameters.to one for hours on a shift which come within those parameters. What is payable is a "shift premium" not a "premium", and we agree that the collective agreement contemplates that the employees will have scheduled shifts or, in other words, that their regular hours of work will be scheduled for each working day and that such hours will constitute a shift. It is our view that hours such a those worked by the grievors here, which are in addition to their regular work day, are overtime hours and are not part of their shifts. Their shifts ended when their regularly scheduled hours of work for that day were over. In the instant case, therefore, since no part of the shifts worked by any of the grievors were worked between 5:00 p.m. and 6:00 a.m. no shift premium is payable. Such an interpretation is consistent with the purpose of shift premium, which is to compensate employees for having to work as part of their regular working hours those hours which are unattractive. Mr. Shamie submitted that based upon the passage set out, the Brent Board clearly found that shift premium is payable only when the hours specified in Article 7.5 form part of an employee's regularly scheduled hours of work. It was the submission of Mr. Lukasiewicz that the issue before the Brent Board was whether shift premium was payable when employees occasionally worked overtime for less than a full shift. The Board concluded that it was not and although the Board also referred to a shift in terms of an employee's regular hours of work, Mr. Lukasiewicz submitted that for purposes of Article 7.5, it is the regularity with which the shift is scheduled and not whether the shift forms part of the employee's regularly scheduled hours which determines entitlement to shift premium. 8 The issue, then, is whether Mr. Guigue is entitled to shift premium when he replaces another. Computer Operator and works throughout shift no. 2, 3 or 4. In this regard, Article 7.5 provides for a shift premium of 40 cents per hour for all hours worked between 5:00 p.m. and midnight and 55 cents for all hours worked between midnight and 6:00 a.m. Effective April 1, 1991, the amount of the premium was increased to 45 cents and 60 cents respectively. Article 7.5 further provides that where more that 50% of the hours worked on "any regular shift" fall within the period attracting the higher premium, the higher premium shall be paid for all hours worked. In this ~case, there was no dispute that when the Grievor replaces another Operator on either shift no. 2, 3 or 4, 50% of the hours worked fall within the hours specified in Article 7.5. Accordingly, the'only issue is whether, when' replacing another Operator, the Grievor is working on "any regular shift" within the meaning of the Article. In our view, when the phrase "on any regular shift" is given its ordinary meaning, it must refer to a shift which is regularly scheduled. In this regard, the language of Article 7.5 can be contrasted with Articles 6.3 and 6.4 in which reference is made to an "employee's regularly scheduled shift" or an "employee's regularly scheduled hours of work". In Article 7.5, on the other hand, the parties have not made reference to an individual 9 employee's shift schedule but instead have used the term "regular,' to describe the nature of the shift. Although the Board in St. Clair College and Ontario Public Service Employees Union (supra) appears to equate "shift" with an employee's regular hours of work, there is no indication that the Board was adverting to the words "any regular shift" which appear in Article 7.5. The issue before the Brent Board was whether the Grievors who were occasionally asked to work a number of hours beyond their regular hours were entitled to shift premium and the comments of the Board must be read in that context. In any event, in our view, the language of Article 7.5 is clear and unambiguous and we find that entitlement to shift premium is based upon the regularity with which the shift is scheduled and not upon whether the shift forms part of the individual employee's regularly scheduled hours of work. In this case, therefore, when the Grievor replaces another Computer Operator on shift no. 2, 3 or 4, he is working on a "regular shift" in the sense that the shift has been regularly scheduled and consequently, he satisfies the requirements of Article 7.5. The next issue, then, is whether the Grievor is entitled to shift premium in circumstances where he is also entitled to overtime. In this regard, it has been recognized 10 that shift premium serves a different purpose than overtime as shift premium is intended to compensate an employee for working less desirable hours whereas overtime is intended to compensate an employee for working hours in addition to his regular hours. Accordingly, absent some restriction in the Collective Agreement, it has been held that an employee is entitled to both shift premium and overtime pay: see Re Borden Chemical Co. (Canada) Ltd. and Allied and Technical Workers, Local 13491 (1973) 3 L.A.C.(2d) 383 (Weatherill); Re Texaco Canada Ltd. and Oil, Chemical & Atomic Workers, Local 9-599 (1975) 10 L.A.C.(2d) 221 (Shime) and Re Associated Freezers of Canada Ltd. and Teamsters, Local 419 (1979) 23 L.A.C.(2d) 40 (Burkett). It was the position of the College, however, that in this case, the payment of shift premium and overtime pay is precluded by Article 6.2.4 of the Collective Agreement. This Article provides that there shall be no duplication or pyramiding of overtime payment nor shall the same hours worked be counted as part of the normal work week and also as hours worked for-which an overtime premium is payable. Given the language of Article 7.5, the submission of the College cannot prevail. Article 6.2.4 refers only to the pyramiding or duplication of "overtime payment" and makes no reference to any other premiums. To this extent, the language is distinguishable from the provision in Re St Thomas-Elgin General 11 ~ospital and Ontario Nurses' Association (1984) 17 L.A.C.(3d) 202 (Burkett) where the Collective Agreement provided that overtime premium was not to be duplicated, nor was there to be pyramiding with respect to any other premiums. In contrast, in this case, the Collective Agreement makes no reference to any other premiums and, accordingly, we find that Article 6.2.4 cannot be interpreted to proscribe the payment of shift premium and overtime pay. In the result, the grievance is allowed. The Board finds that when the Grievor replaces another Computer Operator and works throughout shift no. 2, 3 or 4, he is entitled to shift premium in addition to overtime pay. In our view, however, shift premium does not form part of the base for purposes of calculating overtime pay. In this regard, Article 6.2.1 provides for an overtime rate of time and one-half the employee's "hourly rate" for authorized work performed. The employee's hourly rate, we find, is a reference to the rate specified in Appendix "E" and does not include shift premium which is payable pursuant to Article 7.5. 12 The Board shall remain seized for purposes of implementation of this award. DATED AT TORONTO, this llth day of October, 1991. Chairman '!Allen S. Merritt" College Nominee "Peter Klym" Union Nominee