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HomeMy WebLinkAbout1988-1221.Speer et al.90-03-26 EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO '~ ONTARIO · GRI~/ANCE CQMMISSlON DE. SE'I-FLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8-SUITE2100 TELEPHONE/T~LI~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG ?ZB. BUREAU 2100 (416) 599-0688 1221/88 iN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before. THKGRIKVANCE S~TTLE~E~T BOARD BETWEEN= OPSEU (Speer et al) Grievor -an~ - The Crown in. Right of Ontario ~ (Ministry of Education) Employer BEFORE: T.H. Wilson Vice-Chairperson T.. Browes-Bugden Member' E. Orsini Member FOR'THE J. Kovacs GRIEVOR: Counsel Gowling, Strath¥ & Henderson Barristers & Solicitors FOR THE E.. Hipfner EMPLOYER: Staff Relations Officer Management Board of Cabinet HEARING: April 7, 1989 DECISION The grievors .claim that they have not received their rights under Article 19 of the Collective Agreement and specifically Section 19.3. The issue arises as a result of the unusual work schedule which the grievors follow as Residence Councillors at the W. Ross McDonald School in Brantford. The school operates' during the school year from September until June and as a result, a number of additional provisions appear in the Collect'ive Agreement to deal with these realities. Before examining the somewhat complex work schedule, % intend first to set out the relevant provisions of the Collective Agreement. ARTICLE 19 - holiday payment 19.L 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. 19.2 in addition to the payment provided by section 19.1, an employee shall receive either seven and one quarter (7 1/4) or eight (8) hours pay as applicable at his basic hourly rate or compensating leave of seven and one quarter (7 1/4) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. 19.3 ¥~en a holiday included under Article 4S (Holidays) coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to receive another day off. 19.4 Any compensating leave accumulated under sections 19.2 and 19.3 may be taken off at a time mutually agreed upon. Failing agreement, such time off may - 2 be taken in conjunction with the employee's vacation leave or regular day(si off, if requested one (1) month in advance. 19.5 Any compensating leave accumulated under sections 19.2 and 19.3 in a calendar year which is not used before March 31 of the following year shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 ~date may be extended by agreement at the local or ministry level. 19.6 Notwithstanding anything in Article 19, employees who are in classifications assigned to Schedule 6 and who are required to work on a holiday included in Article 48 (Holidays) shall receive equivalent time off. APPENDUM TO THE WORKING CONDITIONS AND EMPLOYEE BENEFITS COLLECTIVE AGREEMENT The parties hereto have agreed to the terms of this Addendum .covering employees in classifications of Residence Counsellor 1, 2: and 3 in the Institutional Care. Category and Nurses SpeciaI Schools in.the Scientific and Professional Services' Category. This Addendum shall be attached to and form part of the Working Conditions and Employee Benefits Agreement. The terms of the Settlement are as follows:. (a) The hours of work shall be established by the Ontario Schools for the Deaf and the Blind, and they may vary depending on the situations which exist at the different schools. The normal hours of work. per week shaI1 be forty (40) hours plus an additional number of hours of work for the purpose of coverage requirement without penalty, recognizing that twelve (12) hours between shifts and two (2) consecutive days off may not be possible to schedule. Normal scheduling of hours shall be September 1 to June 30. (b) Sleep-in is not work and shall only be compensated as specified herein. Scheduled sleep-in hours shall be credited at the rate of fifty percent (50%) to a maximum of four (4)' hoUrs credit for those hours on sleep-in duty per night toward the required annual accumulation. Sleep-in hours prior to or following a. period of work shall not form a part of the Work shift for any purpose under this Agreement. 3 (c) Authorized overtime work which is r~quired as a result of an emergency situation shall be immediately submitted for payment at time and one-half (1 1/2) the regular hourly rates. This emergency non-scheduled overtime work shall not be included when totalling the number of credit hours required for the year as per Schedule A. Payment will normally be executed within thirty (30) days of submission. APPENDIX 3 SCHEDULE A AVERAGING OF HOURS OF WORK The number of' hours of work per week prescribed shall be computed as a weekly average over one (1) year, where the duties of a civil servant require: -that. he work more than the number of hours per week Drescribed at regularly recurring times of the year, or - that the number of hours per week be normally irregular. Averaging Period: The averaging period for each class and/or position: ~ will conform to the twelve (12) month calendar period which reflects the work cycle of that class and/or position, and - will be reported to the bargaining agent. Prorating: Periods of employment of less than twelve (12) months in an averaging period (e.g due to appointment, transfer, separation, etc.) will be prorated. Hours Per Averaging Period: The hours of work required shall correspond to a thirty-six and one-quarter (36 1/4) hour per~ week or a forty (40) hour week averaged over the twelve (12) month calendar period. Changes to Hours Per Averaging Period: If at any time, a ministry requires a different hours base for a class or for a position within a class (e.g. equivalent of forty (40). hours per week instead of thirty-six and one-quarter (36 1/4) hours per week ), the ministry must: - alter the'affected employee's salaries proportionately, and - notify the Staff Relations Branch, Human Resources Secretariat, and the Union of any such changes. Records of' Hours Worked: A record will be maintained for each employee affected showing a running total of hours worked: - on his regula? working days, and - during the averaging period. Excessive Buildup of Hours Worked When an employee's buildup of hours worked is becoming excessive,· he: - may be required to take time off on an hour-for-haur basis', in order to bring his hours accumulation into Iine ~with the hours requirement for the averaging period, and · - will be given reasonable notice, where circumstances permit, of any such time off. Calculation of Hourly Rate: In all cases, the basic hourly rate of pay for employees on averaging is to be determined by dividing the weekly rate of the class by thirty-six and one-quarter (36 1/4) or forty (40) as applicable, unless the basic hourly rate of pay already exists. Hours Worked Over Annual Requirement: At the end of the averaging period, any excess hours standing to the employee's credit over and above the annual hours require- ment will be considered as overtime. Normally, the employee shall be paid for his overtime credits. Such payment shall be based on the basic hourly rate he was receiving on the last day of the averaging period. Compensating time off may ~ be substituted for payment of overtime credits as follows: (a) Where there is insufficient work for an employee to the extent that his presence is not required for a period of time, i~ which case: 5 - a ministry has the authority to direct that the employee take time off rather than receive pay for the overtime credits, and - such time off must be taken commencing during the first month of the next averaging period. OR (b) In circumstances other than the above and where the employee and his supervisor mutually agree to compensating leave, in.which case the time off will commence: - within the first month.of the next averaging period, or - at an otherwise mutually satisfactory time. Hours Worked on Holidays or Other Than Regular Workdays: (a) All hours worked on a holiday included under Article 48 (Holidays) shall be paid at the rate of two (2) times the basic hourly rate that the employee was receiving when the .holiday was worked., (b) ~All hours worked' on a day that is not a regular working day for the employee will be treated as overtime and based on the rate he was receiving when'the overtime was worked. We also refer to Article 8 - DAYS OFF 8.1 There shall be two (2) consecutive days off which shall be referred to as scheduled days off, except that days off may be non-consecutive if agreed upon between the. employee and the ministry. Because the school year is ten months, a 12 month year of hours is divided and applied to the ten month school year. Each year is docketed and leave time is subtracted from that hourly budget. In Chandler et al and Ministry of Education (G.S.B. 2338/87 decided 30 June i988), this Board decided that Section 19.3 of the Collective Agreement could be applied to Residential 6 Councillors and the parties agreed before this panel that consequently these grievors are subject to Section. 19.3 but the Ministry takes the positions that on the facts the grievors cannot bring themselves within Section 19.3. The 1987-88 schedule was filed by the parties as Exhibit 3 and the Board was asked to decide whether according to Exhibit 3 there are scheduled days off that correspond with the statutory holidays. To better understand the issue I have attached the Work Schedule as Appendix "A" to this Decision. It is the union's position that the schedule reflects a pattern of working days and days off and that from that pattern, you determine which are scheduled days off and where they correspond with statutory holidays under Article 48 so as to'invoke or trigger Section 19.3. Normally the Counsellors do not work on statutory holidays. The students go home every other week-end and the Counsellors usually do not work on Professional Development (PD) days which are usually added on to long week-ends. Although the parties agree that the schedules run on a fairly regular basis, the Ministry takes the position that there is no entitlement to that. regularity. The Schedule: The Counsellors form two groups which for convenience we refer to as Group A and Group F. If for example, we look at the week of October 5 to 11, we see that Group F began at 11:30 am on Monday. It was on duty until 9:00 am Tuesday. Then A Group began at 11:30 am. on Tuesday (Oct. 6) and was on duty until 9:00 am Wednesday. F Group returned at' 11:30 7 Wednesday and was then on duty until Thursday at 9:00 am. The A Group returned at 11:30 am and was on duty until Friday at 9:00 am.~ The week-end was the Thanksgiving week-end so that the students went home. October 9 was a Travel Day so no counsellors were needed on duty after the conclusion of the Thursday shift by Group A at 9:00 am Tuesday, October 13 was a Professional Development day and a Travel Day so the F Group reported for its first shift at 5 pm.. On Wednesday A Group began at 11:30 am. Thursday, F Group began at 11:30. Friday !6th October preceded a week-end in which some students remained in residence and E and A of A Group reported at 11:30 am and were on duty until Saturday 9:00 am. On Saturday B and C reported at 11.:30 am and the rest. of ~ Group returned at 5 pm Sunday so that A Group' was there until Monday at 9:00 am. On Monday October 25, the F Group began at 11:30 am. and the sequence carried through the week. The next statutory holiday was Remembrance Day. Then on December 18 the students travelled home for their Christmas holidays. On January 3, 1988 at 5 pm the A Group returned and on January 4, 1988, the F Group began the cycle again. The next statutory holiday was Good Friday on April 1 and the schedule picked up again on a full regular basis on April 6. In the cycle when there· are no students staying at the~ School over the two day week-end and the Friday is a travelling day, the evidence is that part of a group will work in the Friday from 11:30 am until 3 pm.. The grievor Speers is "F" in F Group. Monday, October 12, ~ 8 1987 was Thanksgiving. If it had been a regular day instead in the sequence, the.A Group would have worked that day and in the union's submission, it. should be characterized as F Group's scheduled day off. That coincided with the statutory Thanksgiving day. The Ministry admitted that the schedules run fairly regularly but that there is no entitlement to such a regular schedule. The MiniStry can create an irregular pattern while still complying with the need for two days off in every seven day period. There is no right to two consecutive days off. Furthermore, the schedule in fact is interrupted by 'empty week- ends. Also the Ministry noted that the schedule altered in the new year: the F~ Group should have checked in on January 4 but in fact the A group did. The Union replies to that point that it was just the beginning of a new cycle. To understand the issue more fully, it is necessary to examine the case of Candler (G.S.B. 2338/87) whose grievance was allowed by a panel chaired by R. J. Roberts (30 June 1988). Candler was a Counsellor at Sir James Whitby School in Belleville. The day in question was Thanksgiving, October 12, 1987. Candler did not work that day for it coincided with his regular day off. At page 8 vice-chair Roberts writes with respect to Candler's grievance: 9 "Turning to the grievance of Mr. Candler, however, the Board reaches a different conclusion. It was acknowledged by the parties that no specific provision in either the Addendum or Schedule A of the Collective Agreement precluded recourse by Mr.. Candler to the provision of Article 19.3 of the Collective Agreement. Article 19.3 reads as follows: When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to receive another day off. It also was acknowledged by the Ministry that because the Thanksgiving Holiday fell on his regular day off, Mr. Candler would end up working more hours in that week than another employee who did not work on the Thanksgiving Holiday and had his regular day off on another day of the week, e.g. Wednesday.· It was indicated, that at the same time,, this would increase the number of hours that Mr. Candler had to credit against the 1,840 hours (yearly total) that he was scheduled to work in the ten-month period and that under Schedule A, he would either be required to take time off on an hour for hour basis to bring his accumulation into line or b~ paid overtime credits for excess hours left outstanding att the end of the averaging period. It was agreed that under this scheme, Mr. Candler would not be entitled to receive'a day off. Whether he received time off or overtime credits instead, it was submitted, was left to the discretion of management. Mr. Candler did not have absolute entitlement to a compensating day off unde--~ Article 19.3, it was submitted, because the Addendum and Schedule A of the Collective Agreement were intended to function as a complete code superseding Article 19 in its entirety for Residential Counsellors in the position of Mr. Candler. We do not agree. We cannot help but think that if the parties intended for these provisions to supersede all of Article 19, a not insignificant exclusion, they would have said so. They did not. This leads us to conclude that while the parties might have intended the provisions of the Addendum and Schedule A - focused as they are upon Residential Counsellors - to act as the primary determin- ants of the rights of the parties in the areas that they addressed, they did not exclude applicability of the broader provisions of the Collective Agreement in the absence of conflict. Here, there, is nothing to exclude the appIicability of Article 19.3. It does not conflict with the Appendix. The provisions of the Appendix to which the Ministry referred -- those dealing with excessive build-up of hours and credits for hours worked over the annual requirement -- merely express the mechanics of handling build-ups of hours. There is nothing in them to prevent application of a provision such as Article 19.3 entitling an employee to receive another day off when a holiday coincides with his or her scheduled day off. Accordingly, the grievance of Mr. Candler is allowed." The Ministry Counsel before us challenged Vice-Chair Roberts' reliance on the fact that the result of not applying Section 19.3 would be that different Counsellors would work different numbers of hours per week on several grounds: 1 - it is not relevant because their time is scheduled over a 10 month year by numbers of hours, and 2 --it often happens in any event that Counsellors work different numbers of hours, per week. The Ministry~says that Article 8'.1 applies-. The Union says it~ is superseded by paragraph (a) of the Addendum. The provisions of 8.1 require agreement between the employee and the Ministry to schedule non-consecutive days off. The Addendum specifically provides that both the 12 hours period between shifts and two consecutive days off "may not be possible to schedule"., In the case of Speers (F) that appears in the period October 19 right though to October 29 with respect to consecutive days off. I am satisfied that with respect to such scheduling the Addendum paragraph (a) does supersede Article 8.1. When the Ministry submitted that it decides how to schedule, it is correct and it may do so in conformity with the Addendum. It may diverge from the requirements of Article 8.1 two consecutive days off. It has done so from time to time. The language of the Addendum 11 alters the requirements but is does not end the possibilityP of the existence of scheduled days off. BUt it provides that the Minis'try need not obtain the employees' consent. Indeed the Union is correct when it submits that the Addendum paragraph (a) recognizes that scheduled days off do exist. There is no dispute about what the actual schedule was and in my opinion an employee is entitled to two scheduled days off per week subject to the qualification that the Ministry may not be able to schedule two consecutive days off.~ In deciding how to schedule employees the Ministry of course must be guided by the needs of the operation of the school. The defeat of a. contract entitlement to statutory holidays is not part of that decision making process. The question of' whether or not an empIoyee's scheduled day off coincides with a statutory holiday is in each case a pure question of fact. Accordingly, I find that where a grievor's scheduled day off coincided in fact in the 1987-88 schedule with a Statutory Holiday, he was entitled to his rights under Section 19.3 of the Collective Agreement. There are a number of grievors and it is my decision now to remit the matter back to the parties to determine in each individual case what specific entitlement any individual grievor may have had and been denied. This panel will remain seised of the matter should the parties be unable to agree on this Decision's application to the individual grievors. Accordingly, the grievances are allowed subject to the above. A final note: There was some discussion in argument about the timeliness of the grievances. However, since the Ministry had not raised it at an earlier period in the grievance, MiniStry Counsel did not raise any jurisdictional issue on this point. There is no real reason in my o~inion to say anything further on that point. I also do not feel the 20 day rule applies to the remedy on these facts: see Aubin and Ministry of Correctional Services (G.S.B. 515/88) and' Morris and Ministry of Health (G.S.B. 7'60/85). The decision in Candler was not issued until June 30, 1988 after the- summer vacation' began. The grievors~would not know that the Ministry would not implement the decision in their favour. Speers testified that he did not know that his overtime would not be paid out in August, 1988. Indeed, the parties still have to determine how the adjustments in the scheduling should be made. Finally, these grievors should not be in a worse position than Candler merely because in their cases the Ministry decided 13 to argue yet another issue. Accordingly, the 20 day rule does not apply. DATED at Toronto this 26 day of March , 1990. 'Thomas H. Wilson Vice-Chaiz-pers0n · Browe s- Bugde~' ,Member E. Member ~- A P P E N D I K A ~ ,.r : ~