HomeMy WebLinkAbout1989-1090.Henderson.91-06-26 ONTARIO EMPf. 0 Y£S DE LA COURONNE
CROWN EMPL 0 YEE$ DE L 'ONTA RiO
GRIEVANCE C.OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180, RUE OUNDAS OUEST, BUREAU 2;OO. TORONTO {ONTARIO). M5G ;~Z8 FAC$1MILE/TEL~'COP~E . (4T6} 325-~396
1090/89
IN THE M~TTER OF I~KltBITI~TION
THE CLOWN EMPLOYEES COLLECTIVE B~IN~N~ 1CT
Before ~
~ ~RIEV~CE SETT~~ BO~
oPsEu (Henderson)
Gr~evor
- alld -
The Crown in Right of Ontario (Ministry of Energy)
BEFORE: J. McCamus Vice-Chairperson
E. Seymour Member
R. Scott Member
FOR THE H. Law
GRIEVO~ Grievance Officer
Ontario Public Service Employees Union
FOR TKE J. Thomson
EMPLOYER Counsel
Hicks, Morley, Hamilton, stewart Storie
Barristers & Solicitors
HEARIN~ Januaury 15, 1990
Decision
This grievance concerns a question of an entitlement ito call-
back pay under Article 14 of the Collective Agreemen't. That
Article provides as follows:
ARTICLE 14-CALL BACK
14.1 An employee who leaves his place of Work land
is subsequently called back to work prio~ to
the starting time of his next scheduled shift
shall be paid a minimum of (4) hours pay at lone
and one-half (i½) times his basic hourly r~te.
The particular issue raised in the present grievance is w~ether an
employee who is assigned to "Schedule 6" for purl~oses of
to c 1
determining "normal hours of work" is entitled a 1-ba k pay if
he or she is required to return to work during vacation time. The
Employer argues that employees who are in classifications!assigned
to Schedule 6 are not entitled, as a general rule, to call,back pay
and that this general principle is applicable in the c~ntext~ of
vacation, as well. In support of this proposition, thefEmployer
relies on a series of articles in the Collective Agreementf that set
out special arrangements concerning Schedule 6 employeestland on a
previous decision of the Grievance Settlement Board lin OPSEU
(Krete] v. Ministry of Labour 1055/88 CVerity). It is contended
by the Union, on the other hand, that although Schedule 6 ~mployees
are not normally entitled to call-back pay under Article 14, call-
back pay should be avai~lable in the particular circumstances of the
present case, that is where an employee assigned to Schedule 6 is
on vacation.
The facts underlying'the present grievance were set out by the
parties in an Agreed Statement of Facts (Exhibit 1) in the
following terms:
1. The Grievor (Mr. Brian Henderson) is employed by the
Ministry as a Contracts and Grants Officer. His
hours of work are designated as Schedule 6.
2. On August 10, 1989, the Grievor was scheduled to
work a regular work day and did report to work.
3. At 1:20 p.m., the Grievor requested the rest of the
day off as a one-half day vacation leave, pursuant
to the Collective Agreement. This was agreed to by ~
Goldie Spencer, Manager of Staff Services.
4. Shortly after the Grievor left work, the office of
the Deputy Minister, Thomas ~Sosa, telephoned Ms.
Sharifa Pirbhat, a bargaining unit employee in the
Grievor's work area. Apparently Mr. Sosa had
reviewed the business plan consulting contract and
wanted some significant changes.
5. On Mr. Spencer's direction, Ms. Pirbhat called the
Grievor back to work about 1:45 p.m. She located
him in a nearby pub.
6. The Grievor returned to work and completed the
necessary assignments by 2:45 p.m.
7. Mr. Henderson's '"Premium Payment Report" claims one
hour actual time worked with entitlement to call-
back pay pursuant to Article 14~of the Collective
Agreement.
Although the Grievor, as the above statement indicates, was in the
unusual situation of being on vacation only for an afternoon, the
Employer concedes that the Grie~or was "on vacation" in. the full
sense for purposes of resolving the question of principle raised
in the present grievance.
Employees workinq in classifications assigned to Schedule 6
are in the unusual circumstance that they are essentially "on-
4
call". While they may have, in some sense, regular hours in which
they normally attend at a particular place of work, such employees
are not on a regular work schedule and can be called in to work at
other times. Whereas the Collective Agreemont normally st. ulates,
for employees assigned to other schedules, fixed numbers ~f normal
working hours per week, the Agreement simply sets a minimum number
of hours per week for Schedule 6 employees. Thus, A~ticle 7
provides as follows:
7.1 SCHEDULE 3 AND 3.7. ·
The normal hours of work for employees on these
schedules shall be~thirty-six and one-quarter (~6'~)
hours pe~ week and seven and one-quarter (7~) hours
per day.
7.2 SCHEDULE 4 AND 4.7
The normal hours of work for employees on t ese
schedules shall be forty (40) hours per weekland
eight (8) hours per day.
7.3 SCHEDULE 6
The normal hours of work fo~ employees on this
schedule shall be a minimum of thirty-six and 6ne-
quart.r (3~t) hour~ per
~urthor, and ¢ons~st.ngly with this~ arran~omont~' 'Scheduio
~mploy~s ar~ ~u~j~ct to ~p~cial treatment in thos~ ~rtic~ ~ of tho
~r~omont that provido.for overtime and hol±~a¥ pay. In o: ch cas~,
Schedul. 6 emplo¥oos are entitl.~ to oqu±val.nt t~o off or
timo rather than monetary compensation for work a~nm~nts that
would render other employees entitled to either overtime pay or
holiday pay. Article 13, pertaining to overtime pay provides, in
part, as follows:
13.1 The overtime rate for the purposes of this
5
Agreement shall be one and one-half (1½) times
the employee's basic hourly rate.
13.2 In this Article, ,'overtime" means an author, ized
period of~work calculated to the nearest half-
hour and performed on a scheduled working day
in addition to the regular working period, or
performed~ on a scheduled day(s) off.
13.7.1 Employees who are in classifications assigned
to Schedule 6 and who are required to work on
a day off, shall receive equivalent time off.
Article 13.72 then further provides an exception to Article 13.7.1
for Schedule 6 employees assigned' to "forest fire fighting or
related duties" entitling employees in this latter category to
overtime pay in certain stipulated circumstances.
With respect to holiday pay, Articles 48 and 19 provide, in
part, as follows:
48.1 An employee shall be entitled to the following
holidays each year:
. New. Year's Day Good Friday
Easter Monday Victoria Day
Canada Day Civic Holiday
Labour Day ' Thanksgiving Day
Remembrance Day Christmas Day
Boxing Day
Any special holiday as proclaimed by the
Governor General or Lieutenant Governor.
19.1 Where an employee works on a holiday included
under Article 48 (Holidays),- he shall be paid
'at t~e rate of two (2) times his basic hourly
rate for all hours worked with a minimum credit
of seven and one-quarter (7}), eight (8), or
the number of regularly scheduled hours, as
applicable.~
6
19.6 Notwithstanding anything in Article {~19,
employees who are in classifications assigned
to Schedule 6 and who are required to wor~ on
a holiday included in Article 48 (Ho!id~'ys)
shall receive equivalent' time off.
The nature of these arrangements is, of course, quite
consistent with the "on-call" nature of a Schedule 6 assignment.
schedule 6 employees are neither entitled to overtime pay rates nor
are they entitled to the convenience that flows from having a fixed
work schedule and an expectation that they will only be called in
on statutory holidays at premium rates. In the present case, the
Employer argues that it is similarly consistent with these
arrangements that Schedule 6 employees are not entitled to call-
back pay under Article 14 of the Article of the Agreement..
In support of this view, the Employer places considerable
reliance on the decision in OPSEU (Krete) v. Ministry f Labour
1055/88 fVerity). In that case this Board dealt specifically with
the question of whether Schedule 6 employees are entitled to call-
back pay under Article 14. The circumstances in which the
grievance arose were set out in an agreed statement of fac. s in the
following terms:
1. The Griever is classified as an Occupational Health
and Safety Officer II, whose hours of workiare
determined by Schedule 6 as contained in Articl~ 7.3
of the Collective Agreement.
2. On September 12, 1988 at 6:45 pm, he was called at
home by Mr. Leon Mylemans, Acting Administrator,
Industrial Health and Safety Branch, regarding ~[PCB
spill at the Georgian Bay Kennedy Company in Owen
Sound.
7
3. As a result, the Grievor made three telephone calls
from his residence in order to deal with the
problem.
4. Resolving the issue took one hour.
5. The grieuor is seeking call back in accordance with
Article 14.
The thrust of the Union's argument in Krete was that Schedule 6
employees should be entitled to call-back pay under Article 14
since Article 14 does' not itself specifically deny such
entitlement. The Board came to the contrary conclusion, however,
and in so doing adopted an interpretation of the Agreement which
is indeed supportiv~ of the position taken Dy the Employer in the
present grievance. Two points are of significance. First, the
Board placed some emphasis on the "scheduled shift" language.in
Article 14. Call-back pay is available to an employee who is
called back tO work "prior to his next scheduled shift." In the
Board's view, a S~hedule 6 employee is not an employee who has a
"scheduled shift" and therefore does not come within the reach of
Article 14. The Board, explained this point in the following terms
at page 7:
DesDite the Union's able submission, the Board
cannot accept its argument on the merits. In these
circumstances, the grievor, although performinq work, is
not entitled to call back pay. Briefly stated, under the
current wording of Article 14.1 the essential elements
to qualify for call back pay are not present. Article
14.1 contemplates an employee workinga scheduled shift,
and that an employee has left his place of work and that
he or she is called back to work prior to the next
scheduled shift. In our view, Schedule 6 employees
required to work a minimum of 36-1/4 hours per week are ·
not shift workers in the traditional sense. Article 7.3
makes no reference to the number of hours worked in a
given day~
The second point made by the Board concerned the nature of call-
back pay. Having noted that Schedule 6 employees are notlentitled
to either overtime pay or to holiday pay, the Board we~t on to
observe that, "Clearly, call-back pay is a form of p ent for
overtime work". In support of this proposition, the Board relied
on a number of previous decisions of the Grievance Settlement Board
and quoted the following passage from page 8 of the decision in
OPSEU {McGreqor~ et al. v. Ministry of Community an Social
Services 069/85 CWilson~:
...Clearly Article 14 is functionally part of Article 13
and could without any violation of its function have
simply been number 13.8. The reference to rate ofilpay
in Article 14, as union counsel pointed out is in exa6tly
the same language as the language of 13.1..'..
In Krete, the Board went on to say at page 8 that:
It is now well established that Schedule 6 emplo?ees
are not entitled to overtime. If those employees are
disentitled to overtime pay, except for those employees
referred to in Article 13.7.2, it would seem illogical,
we think, that such employees would be entitled to call
back pay, which is a form of overtime pay.
Understandably, the Employer has argued in the pre~ent case
that the ~ogic of the Krete decision is applicable to thl present
·
situation. If, as the Board held in Krete, Schedule 6 mployees
are simply not entitled to claim call-back pay under Article 14 as
a matter of the proper interpretation of Article 14, t~i$ would
appear to be disposltive of the present grievance as well.i For its
part, however, the Union argues that the Krete dec~slon can be
distinguished from the circumstances of the present griev ce. The
Union has offered an interpretation of the Agreement which takes
the view that a Schedule 6 employee who is on vacation is .3o longer
an "employee who is in a classification assigned to Schedule 6".
Rather, such an employee is simply an "employee" and as such can
'~ qualify as an "employee" under Article 14 for Call-back pay. In
order to qualify under Article 14, of course, the employee must be
able to sustain the argument that he has been called back to work
"prior to the starting time of his next scheduled shift". It will
be recalled that the Board held in Krete that a Schedule 6 employee
does not have a "scheduled shift" in the requisite sense. In
response, the~Union argues that such employees normally have a de
facto shift in the sense that they have a normal work day, albeit
it one which is subject to change at the option of the Employer.
In our view, there are a number of difficulties that stand in
the way of the interpretation of Article 14 contended for by the
Union in this case. In the first place, the analysis' offered by
the Union runs directly counter to the reasoning of the Board in
Krete. If, as~the Board held in Krete, a Schedule 6 employee does
not have a "scheduled shift" in the requisite sense during the
period of time when the employee is not on vacation, it is
difficult to see how such an employee could be said to have a "next
scheduled shift" while on vacation. Further, the Bo&rd expressed
the view in Krete that call-back pay is a form of overtim~ pay and
it is therefore part and parcel of the proposition that Schedule
6 employees are not entitled to overtime pay and that they are also-
not entitled to call-back pay. Thus, while we accept the Union's
submission that the Krete decision did not deal with the very point
in issue here - entitlement to call-back pay while on vacation -
there can be no doubt but that the reasoning adopted by the Board
in that case precludes eligibility by Schedule 6 employees for
call-back Day as a general proposition, t
Further, we are not persuaded by' the suggestioni that a
Schedule 6 employee while on vacation is no longer an "iemployee
whose classification is assigned to Schedule 6".'I The no~!ion that
an employee goes off Schedule 6 when he goes on vacation nd comes
back on it when he returns from vacation does not correspon~ to the
practical realities of the situation. No evidence was led to
suggest that a reassignment of any kind actually takes lace in
fact at the conclusion of a vacation. During vacation thelemployee
continues to.hold'a position and, of course, continues t6 receive
wages. The position has a classification and that class fication
has been and, in our view, continues to be assigned to Schedule 6.
Moreover, the interpretation contended for by the Union lleads to
the unattractive conclusion that if a Schedule 6 employee was
called back from vacation in two steps rather than in lone, the
employee would not be eligible for call-back pay. Thu~., if the
Employer first called the Schedule 6 employee on'vaca%ion and
notified him or her that the vacation was cancelled for some reason
and that the employee was now on Schedule 6 g ' .,~ l~hat the
employee would be.later notified as to when he or she should come
into work, there could be no question but that the employee was now
an employee "whose classification is assigned to Schedule 6".
11
ThuS, when the Employer called back h~lf an hour later to inform
the employee that it was now time to come into ~ork, there could
be no question of an entitlement under Article 14 to call-back pay.
We are not attracted by an interpretation of the~Agreement which
leads to the conclusion that if the Employer makes two phone calls,
the employee is not entitled to call-back pay wh'ereas if the
EmplOyer makes one phone call, the employee is.
In short, we are not persuaded that it is possible to
interpret Article 14 in such a way as to carve out an exception
that would have Article 14 generally not apply to Schedule 6
employees but, exceptionally,.would have it apply to them while on
vacation. The express language of Article 14 does not, in our
view, yieldsuch an interpretation. Further, as we have indicated
above, the reasoning of the Board in Krete is directly opposed to
such an interpretation. We find the reasoning of the Board in that
ca~e to be persuasive.
The Union has urged upon us that the interpretation contended
for by the Employer, which we believe to be the correct
interpretation, leads to the unattractive conclusion that whereas
regular employees are entitled to call-back pay while on vacation,
Schedule 6 employees are not'similarly entitled and are therefore
more vulnerable to the inconvenience of capricious recall during
vacation time. In support of the proposition that employees not
on Schedule 6 are entitled to call-back pay while onvacation, the
Union relies on two decisions, one of which is a decision of the
Grievance Settlement Board:~ Re Newfoundland Association ~ Public
Employees v. The Queen in Riqht of Newfoundland (1977), L.A.C.
(2d) 272 and OPSEU (Koncz~ v. Ministry of Community a Social
Services 0748/88 CVeritv). Thus, the Union argues t~at non-
inet the
Schedule 6 employees have call-back pay as a protection ag
inconvenience of call-back while on vacation and Schedule 6
employees are unfairly deprived of a benefit of this ki~ by the
interpretation of Article 14 contended for by the Employer in the
b t t
present case. We have a number of o serve ions o make with
respect to this submission. First, although it is not ~ecessary
for this Panel to rule on the question of the availability ~ of call-
back pay to non-Schedule 6 employees while on Vacation, we accept,
for the purposes of argument at least, that the KonczI case is
correctly decided and that non-Schedule 6 ~mployeesI are so
entitled. Indeed, the Employer appeared to accept this pr~osition
in the present case. Secondly, we have no reason to believe that
arbitrary, capricious or unreasonable call-back of empl)yees on
vacation is a practice that the Employer engages in or likely
to engage in. It is difficult to conceive of a practi¢~ that is
more likely to incur the bitter and justifiable wrat~ of. the
employees. Further, it seems very unlikely that representatives
of the Employer would come to the conclusion that suc~! conduct
would be immune from scrutiny in the grievance process.t In the
unlikely event that the Employer was disposed to engag~ in such
practices, however, the application of Article 14 ~oes not
13
represent a very effective device for curtailing such practices.
Indeed, it seems most unlikely that the Employer would call an
employee back froTM vacation in order to undertake an assignment
which would require 'less than the four hours minimum set out in
that Article. A much more effective device fOr curtailing such a
practice would be a recognition that some sort of reasonableness
test or hurdle must be met by the Employer. when it wishes to
deschedule or terminate or interrupt an employee's vacation. .In
the present case, we should add, counsel for the Employer appeared
to concede that such a test is probably applicable. Finally, we
note that we well appreciate that the inability of the Schedule 6
employees to claim call-back pay under Article 14 whether on
vacation or not is viewed by the ~nion as a disadvantage to the
Schedule 6 type of assignment. Indeed, it is only one of a series
of disadvantageous arrangements that are part of the Schedule 6
arrangement. As we have seen, Schedule 6 employees are not
entitled to either overtime or holiday pay. These or similar
disadvantages do, however,-appear to flow from a determination that
certain types of positions require the holders of~those positions
to be "on-call" to deal with emergencies and other similar
situations. .We presume, however, that'offsetting advantages of
some kind'have been built into the compensation packages for such
employees. While we offer no comment on the adequacy of those
arrangements, of course, we do suggest ~hat tinkering with the
application of Article 14 and giving it a construction 'which, in
our view, it cannot reasonably bear, is neither a substantial nor
an appropriate means for trying to redress any alleged unfairness
inherent in the terms of employment set out in the Collective
Agreement for Schedule 6 employees.
For the foregoing reasons, then, this grievance is dismissed.
Dated at Toronto this ~6th~ day of ~J~ne', 1991
f'
~3~nn D.'~ccdmUs
V~ce Chai~rson
E. Seymour, Member
R. Scott, M~mber
I.
RE: GSB FILE 1090/89 - OPSEU VS MINISTRY OF ENERGY
DISSENT
EDWARD E, SEYMOUR
? have ~-=~.~ ~b= ~ma~ori~v awa~,? and ~nd I must dissent ~ would
have found that the ~rievor is entitled to call back ~y in this
particu!=_r circumstance.
The grievcr~ as stated in the majority decision was scheduled to
work a regular work da}' on August !0. His request for a half day
off as oart of his vacation entitl'ement was granted, following
which he was called in to perform work.
Article 14 of the Collective Agreement does not distinguish between
employees. There are ~no exclusions. It refers %o "an employee"
which should be interpreted to mean "any employee~' This is in
contras% to Article 13 which has clauses specifically referring to
Schedule 6 employees. Like Article 14, there is no distinct
reference to Schedule 6 employees in Article 47 - the Vacation and
Vacation Credit Article.
Article 48 is specifically referred.to in Article 19.5 and provides
that Schedule 6 employees "who are required to work on a holiday
included in Article 48 (Holidays) shall receive equivalent t~me
off" Any'reference to Article 47 is noticeably absent.
The specific reference' to the treatment of Schedule 6 employees
with respect to compensation for work performed on a holiday; and
the absence of any similar reference to their treatment while on
vacation, in itself indicate~ to the writer that these
situations are to be treated differently.
it is patentiy unreasonable to permit the emo!oyer to recaii a
vacationin.g employee into ,zorn ~=,T~o~z ca~ i back pay. iFurther~
anyone '.~zu!d be expecte'i tc work d~.,:ring +_heir vacation.
in my opinion, zhe union is quite correct in its argument that the
int.erpretation contended by the employer, "leads ~o the
unattractive conclusion that whereas regular employees are
~o ¢ai~ back pay while on vacation, ScheduIe 6 employee~ are no~
similar3y entitled and are therefore more vllJnerabl~ to the
inconvenience of. capricibu$ recall during vacation ~i,e." The
majority dismissed this argument by concluding that the employer is
unlikely ho engage in such a practice. I do not sh re ~hah
I,
confidence.
For %ho above reasons I would have granted %he grievance.
E. Seymour, ltember