HomeMy WebLinkAbout1989-1500.Crowder & Holmgren.90-06-06~" ONT.4R,~O EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1500/89
IN THE MATTER OF AN ARBITRATION
Under
CROWN EI~PLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIE~JANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (Crowder/Holmgren)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
- and -
BEFORE: M.R. Gorsky Vice-Chairperson
M. Lyons Member
F. Collict Member
FOR THE A. Ryder
GRIEVOR: Counsel
- Ryder, Whitaker, Wright and Chapman
Barristers & Solicitors
FOR THE W. Emerson
EMPLOYER: Employee Relations Advisor
Ministry or Community &
Social Services
HEARING: April 12, 1990
DECISION
The Grievors claim the option of receiving either payment or
compensating leave in lieu of payment for "stand-by time" under
Article 15 of the Collective AGreement. The facts are not in
dispute and are as follows:
i. Both Grievors are employed at the Rideau Correctional Centre
in Smith Falls, Ontario, Crowder as a Recreation and Crafts
Instructor and HolmGren as a Registered Nurse.
2. During the summer of 1989, both Grievors were assigned to
work at the Grippen Lake camp which is operated by the
Centre, the assignment being for a period of approximately
five months, Crowder was temporarily assigned to the
position of Acting Team Leader, which is a management
classification, however, pursuant to Article 6.5, it was
agreed that he would retain his rights and obligations under
the Collective Agreement during the temporary assignment.
Holmgren continued to function as a Registered Nurse.
3. Both Gr~evors were assigned to work every alternate week.
When the Grievors were "on" they performed their regular
duties during regular workinG hours, For the balance of the
24 hours in the day they were required to be on standby and
available for work if called upon.
4. As a result, both Grievors accumulated a large number of
stand-by hours.
5, Both Grievors, purporting to rely on the provisions of
Article 13.5, requested the Employer to Grant them
2
compensating leave in lieu of pay for part of their stand-by
hours.
The Employer declined to consider the request on the grounds
that Article 13.5 did not apply to stand-by hours.
The issue, therefore, is whether an employee, who has an
entitlement to receive stand-by payment pursuant to
Article 15, is entitled, if a request is made to the
Employer, to consideration for the receipt of
compensating leave in lieu of the payment to which she
is entitled.
Article 15 is as follows:
"ARTICLE 15 - STAND-BY TiME
15.1 'Stand-by time' means a period of
time that is not a regular working
period during which an employee
keeps himself available for
immediate recall to work.
15.2 Stand-by time shall be approved in
writing and such approval shall be
given prior to the time the
employee is required to stand by
except in circumstances beyond the
Employer's control.
15.3 Where an employee is required to stand
by for not more than the number of hours
in his normal work day, he shall receive
four (4) hours' pay at his basic hourly
rate.
15.4 Where an employee is required to stand
by for more than the number of hours in
his normal work day, he shall receive
payment of one-third (1/3) of the
stand-by hours at one and one-half
(1 1/2) times his basic hourly
rate."
3
Article 13 is as follows:
"ARTICLE 13 - OVERTIME
13.1 The overtime rate for the purposes
of this A~reement shall be one and
on,-half (1 1/2) times the
employee's basic hourly rate.
13.2 In this Article, 'overtime' means
an authorized 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.
13.3.1 Employees ~n Schedules 3.7 and 4.7
who perform authorized work in
excess of seven and one-quarter
(7 1/4) hours or eight (8) hours as
applicable, shall be paid at the
overtime rate.
13.3.2 Overtime shall be paid within two
(2) months of the pay period within
which the overtime was actually
worked.
13.4' Employees in Schedules 3 and 4 who
perform authorized work in excess
of seven and one-quarter (7 1/4)
hours or eight (8) hours as
applicable, shall receive
compensating leave of one and
one-half (1 1/2) hours for each
hour of overtime worked, at a time
mutually agreed upon. Falling
agreement, the ministry shall
reasonably determine the time of
the compensating leave.
13.5 ~ Where there is mutual agreement,
employees may receive 'compensating
leave in lieu of pay at the
overtime rate or may receive pay at
the overtime rate in lieu of
compensating leave.
13.6 Compensating leave accumulated 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
1978, the March 31 date may be
extended by agreement at the local
or ministry level.
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.
13.7.2 Notwithstanding 13.7.1 and Article
19.6 (Holiday Payment), employees
who are in classifications assigned
to 'Schedule 6 and who are assigned
to forest fire fighting or related
duties shall be paid one and
one-half (1 1/2) times the
employee's basic hourly rate, to be
calculated on the basis of thirty-
six and one-quarter (36 1/4) hours
per week, for all such work after
eight (8) hours in a 24-hour
period."
Articles 23.1 and 23.6 were also referred to in argument.
Article 23 is as follows:
"ARTICLE 23 - TIME CREDITS WHILE TRAVELLING
23.1 Employees shall be credited with
all time spent in travelling
outside of working hours when
authorized by the ministry.
23.2 When travel is by public carrier,
time will be credited from one (1)
hour before the scheduled time of
departure of the carrier until one
' (1) hour after the actual arrival
of the carrier at the.destination.
23.3 When travel is by automobile and
the employee travels directly from
his home or place of employment,
time will be credited from the
assigned hour of departure until he
reaches his destination and from
the assigned hour of departure from
the destination until he reaches
his home or place of employment.
23.4 When sleeping accommodation is
provided, the hours between eleven
(11:00) p.m. and the regular
starting time of the employee shall
not be credited.
23,5 When an employee is required to
travel on his regular day off or a
holiday listed in Article 48
(Holidays), he shall be credited
with a minimum of four (4) hours.
23.6 All travelling time shall be paid
at the employee's basic hourly rate
or, where mutually agreed, by
compensating leave."
Both counsel referr, ed to the case of Mcgregor et al.
(Wilson), 857/87, 858/87, 695/85. In the Mcgregor case the
grievors claimed compensating leave in lieu of payment for work
performed on call-back.
Certain other articles which were relevant ~n that case are
as follows:
"ARTICLE 14 - CALL BACK
14.1 An employee who leaves his place of
'work and is subsequently called
back to work prior to the starting
time of his next scheduled shift
shall be paid a minimum of (4)
hours pay at one and one-half (1
1/2) times his basic hourly rate.
ARTICLE 16 - ON-CALL DUTY
16.1 'On-call,' duty means a period of
time that is not a regular working
period, overtime period, stand-by
period, or call-back period, during
which an employee is required to be
reasonable available for recall to
work.
16.2 On-call duty shall be approved
prior to the time the employee is
required to be on call.
16.3 Where an employee is required to be
on call he shall receive twenty-
five cents (25] per hour for ail
hours such employee is assigned to
on-call duty,
ARTICLE 17 - MEAL ALLOWANCE
17,1,1 An employee who continues to work
more than two (2) hours of overtime
_ im~nediately following his scheduled
hours of work without notification
of the requirement to work such
overtime, prior to the end of his
previously scheduled shift~ shall
be reimbursed for the cost of one
(1) meal to four dollars ($4.00)
except where free meals are
provided or where the employee is
being compensated for meals on some
other basis.
17.1.2 A reasonable time with pay shall be
allowed the employee for the meal
break either at or adjacent to his
work place.
[rest of Article 17 omitted]
In the McGrecor case:
" ... counsel for the Ministry took the position that
clause 13.5 does not apply to an Article 14 situation
and in refusing to consider that provision the Ministry
was correctly applying the Collective Agreement."
(McGreqor at po 4.)
As in this case, the Board in the Mcgregor case identified the
issue as being: " ... strictly one of the interpretation of the
Collective A~reement." (Ibid)
At pp, 4-5 of the McGreqor case, the Union's argument was
set out:
"The union's basic argument is that call-back under
Article 14 creates overtime within the definition of
clause 13.2, i.e. it is
an authorized period of work calculated to
the nearest half hour and performed on a
scheduled working day in addition to the
regular working period.
and that' therefore 13.5 applies. It is also recognized
as overtime under Public Service Act Regulations 10(4)
when it was in existence. In the union's view Article
13.2 defines overtime in the generic sense for
inclusion within Article 13 not to create overtime
within Article 13. There are many overtime situations
within the collective agreement b~yond Article 13,
meal allowance under Article 17.1.1. Special overtime
situations are dealt outside Article 13. Another case
is Article 19 dealing with Holiday Payment ....
The Board set out .the Ministry's argument at p. 6 of the
Mcgregor award:
"The Mfnistry's principal argument is that Article 13.5
applies only to Article 13 and that Articles 13 and 14
are distinct and separate: Article 13 is overtime
while ArticLe 14 is call-back. The wording of Article
16 maintains this distinction,"
Further at pp. 6 and 7 of the Mcgregor case, the Board
elaborated upon the M~nistry's position:
"Basically the Ministry.'s position is that the words
'shall be paid' are mandatory and if the parties had
intended that the alternative of in lieu time had been
intended it would specifically have been so provided in
Article 14 or by reference to Article 13.5. By analogy
Article 7 which sets out the compressed week model,
specifically therein provides:
Article 3.1 [of the Model Agreement set-out
in Article 7] Authorized periods of work in
excess of the regular working periods
specified in Article 2.1 or on scheduled
day(s) off will be compensated for in
accordance with Article 13 (Overtime) of the
Working Conditions and Employee Benefits
Agreement.
Also Article 4 [of the said Model Agreement] deals with
an election for holiday pay or in lieu time, And
Article 23 of the collective agreement specifically
Article 23.6 provides specifically for an optional
compensating leave for travelling time credits, This
is to be contrasted with on-call duty which in Article
16.3 provides only for payment. Article 23.6 was the
subject of interpretation in Snider v. Ministry of
Transportation and Communications (G.S.B. 509/83).. In
.that particular case, Vice-Chairman Brandt at page 9,
specifically rejected treating Articles 13.5 and 23,06
similarly specifically because they used different
language~ namely 'at the rate ... earned' [13.5] and
'basic hourly rate'
The basis for the Board'~ decision is found at pp, 8 and 9
of the McGregor case:
"It is I believe important in understanding the
issue to note the purpose of Article 14. What does it
do? It guarantees a minimum amount of pay if called
back to work. Namely'four hours at time and one half~
So if the employee leaves work at shift end at 4:00
p.m., is called back at 5:00 p,m., arrives back at his
work place at 5:20 p.m. and does 10 minutes of repair
work, he gets six hours pay. If he actually works, for
example, six hours on call-back, he will get six hours
times time and one-half - not because of Article 14 but
under Article 13. Article 14 does not create the
overtime. It only sets a minimum amount. It is all
overtime under Article 13; Article 14 simply creates a
minimu~n. Clearly Article 14 is functionally part of
Article 13 and could without any violation of its
function have simply been numbered 13.8. The reference
to rate of pay in Article 14, as union counsel pointed
out is in exactly the same language as the language of
13.1. If an employee on call-back works six hours, he
gets a wage of nine hours - or he can ~lect under 13,5
and then the management has to decide on pay or
in-lieu time. It makes no sense to say that he cannot
ask for that option if he works less than four hours on
call-back. In my view he is in any event paid overtime
under Article i3: and 14 only guarantees a minimum if
he actually works less than four hours on the call-
back."
It is clear that the Board in the McGreqor case viewed
Article 14 as being "functionally part of Article 13" and that it
9
viewed that Article as applying to an employee who performed some
work on a call-back: "It makes no sense to say that he cannot
ask for that option if he works less than four hours on call-
back."
The Board viewed work performed on a call-back in excess of
four hours as being overtime paid under Article 13: "In my view
he is in any event paid overtime under Article 13 .... " That
is, call-back pay is directly provided for under Article 13 and
all Article 14 does is to~ "[guarantee] a minimum if he actually
works less than four hours on the call-back."
Looking at the purpose of Article 14, it is not to guarantee
a minimum amount of pay for work performed. I emphasize, that is
how the Board in the Mcgregor case viewed Article 14. The Board
in the Mcgregor case did not address the situation where no work
was performed on the call-back, as where an employee was called
back to work prior to the starting time of his next scheduled
shift, and he. performed no work. In any event, the stand-by pay
in Article 15 is provided for only under that Article, unlike the
case of call-back pay (as described by the Board in the Mcgregor
case), which exists" ... not because of Article 14 but under
Article i3. Article 14 does not create the overtime period it
only sets a minimum amount .... " In fact, this was acknowledged
by the Union in the Mcgregor case at p. 7:
"The Ministry and the union counsel disagreed on
Article 17.' The Ministry argued that Article 17 is
also outside Article 13 and there is no in-lieu time
available, i,e. 13.5 does not apply to either Article
14 or Article 17. The union argues they both fall
within Article 13. By ~ay of comparison, replied the
union, neither Stand-By Time (Article 15) nor On-Call
Duty (Article 16) are overtime ....
It is Significant that the work referred' to in Article 17
can be viewed as overtime. The provisions of Article
refer to the work as overtime and it is.work performed
"immediately following his scheduled hours of work .... " It is
also significant that on-call duty is similar to stand-by time
that. unlike work performed on call-back, it would not represent
overtime as defined in Article 13.2.
It is also significant that the Board in the Mcgregor case
was (at p. 9): "... satisfied that 13.5 does include overtime
worked on a call-back." The Board was consistent in viewing the
application of Article 13.5 as being based on the fact that there
was "overtime worked"
Also, while the Board cautioned against a slavish~adherence
to rules of interpretation derived from the law of statutory
interpretation, it, nevertheless, observed, at p. 9, that:
"References to such concepts or methods of interpretation are
not, however, invalid or inadmissible .... " It did not (at p.
9): "... look at the other articles in the collective
agreement," because it found that : "(Articles 13 and 14 are
entirely understandable together as physical and functional
neighbours .... " (ibid~) I find that Articles 13 and 15 are not
"functional neighbours", nor are they in the same proximity as
Articles 13 and 14.
Accordingly, and for all of the above reasons, the Grievance
is denied.
DATED AT To~-~to, On%ratio
th~s 6th day of June, 1990.
~. ~. c, or~,
Vice
.~. ., / /')'" ' (Addendum attached)
./
ADDENDUM
G.S.B. 1500/89
OPSEU (Crowder/Holmgren)
and
Ministry of Community and Social Services
Although I concur with the decision in this matter, I am
at a loss to understand the Employer's apparent reluctance
to come to a mutually satisfactory agreement as to how
Employees could be compensated for Stand-By Time.
It seems to me that if they would agree to a provision
similar to Article 13.5 of the Collective Agreement, then
both parties could benefit from'greater flexibility and
goodwill.
Dated at Toronto this 29th day of May, I990.
M.fchaet Lyons,i.'~ember