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HomeMy WebLinkAbout1990-1134.Hill.91-02-05 ~...~~ - ~; '1 , [i ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE CONT ARlO 111111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARfO, M5G 1Z8 THEPHONEIT!:LEPHONE: (416! 326- 1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8 FACSIMILE/r~LECOPIE : (416) 326-1396 1134/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hill) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE: M. Wright Vice-Chairperson J. c. Laniel Member R. Scott Member FOR THE D. Harris GRIEVOR Counsel Ryder, Whitaker Wright & Chapman Barristers & solicitors FOR THE W. Kenny ',' .EMPLOYE~~~~' ; . .': C.ounsel Hicks Morley Hamilton stewart Storie Barristers & Solicitors HEARING: November 23, 1990 r.' ~. , The Grievor is a Helicopter Pilot who is ømployed by the Minist~r of Natural Resources. The Grievor has sta'ted his grievance in thl::! following language: "I grieve that the employer has violated Article 14.1 of the Collective Agreement by denying me "call back" pay for work performed on April 2/90 I prior to the :scheduled working hours II The remedy requested by the Grievor reads: . "I request 4 hours pay at a rate of time and one half my hourly rate". Counsel both for the Grievor and the Ministry agree that the Grievor is a Schedule 6 employee. The employer's answer to the grievance is that in the circumstances of this case a Schedule 6 employee is not entitled to call back pay. The Grievor bases his claim on Article 14.1 of the Collectiv4::! Agreement which reads as follows: "An employee who leaves his place of ~gork and is subsequentl:y called back to work prior to the starting time of his next scheduled shift shall be paid a minim"urn of 4 hours pay at one and one half (1 1/2) times his basic hourly rate". - -~~ Certain other provisions of the Collective Agreement ar,e significant. I 13.7.1 Employees who are in classifications assigned to Schedulle 6 and who are required to work on a day off, shall receive equivalent time off. (i.e. - time off instead of pay) 00001-91.023 tjal, ~ 4:¡ f - 2 - 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. (i.e. - time off instead of pay) 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. (i.e. - time off instead of pay) A Memorandum of Understanding has been entered into between the Ministry of Natural Resources and OPSEU which deals with the work practices of pilots employed by the Ministry. The preamble to the Memorandum of Understanding indicates the type of flexibility which is required of pilots. The language is significant:- "In recognition of the fact that pilots assigned to operating bases may operate under irregular hours of work necessitated by the Ministry's role in air transport, the following conditions will apply..." ':""~~'~." ..*.... ,.... ....... And there th;~ follows a number of important provisions dealing with the "normal work schedule of pilots". For our purposes the provisions of Article 1 and the provisions of Articles 2.1, 2.1.2 and 2.1.3 of the Memoran~um of Understanding are ilnportant:- 00001-91.023 101l , ! - :I - Article 1 Normal Work Schedule 1.1 Where Air Service operating conditions permit a normal pre-scheduled 40 hour work week, the appropriate provisions of the Public Service Act and Regulations and the Working Conditions .~greement will apply. (Personnel at operating bases where a normal work week will be in effect will be advised). 1.2 The work week will be 5 consecutive days of work and 2 consecutive days off. 1.3 There will be 30 days advance not.ice of the work schedule with the possible exceptions of the initial period. 1.4 If it is necessary that pilots work on the sixth or seventh day or a statutory holidélY, other than during the fire season, they will receive 1:ime off at one and one- half times the number of hours worked with a minimum credit of 8 hours. If time off is not granted wi th mutual consent prior to March 31 of the following calendar year, they will be paid one and one-half their basic hourly rate of all accrued hours. Article 2 work Schedule - Fire Season 2.1 Pilots assigned to fire duties will have a pre-scheduled 5 day work week and a daily schedule of 10am to 6pm during the fire season. The hOUJ:s in a day could be more or less than 8 hours. If it is necessary that Pilots work on the sixth or seventh day, or statutory holiday, they will receive time off at one! and one-half the number of hours worked with a minimum credit of 8 hours. If time off is not granted by the end of the fire season, they will be paid one and one-·hal f times their basic hou~ly rate for all accrued hours. The payroll for this tima-is to.be submitted within one.month after the end : " .~" ..,.,~;.,.".._;."t<.'",:,,~}.-~:tAe,;~fire:::season. <·;-I'f,,,,'however,.they, prefer :,time of'f and ît can be granted before March 31st of the following calendar year, then time off mal' be qranted. 2.1.2 The definition of "assigned to fire and related duties" for the purposes of this agreeme!nt means: 1) While on red alert for fixed wing aircraft 2) while on yellow or red alert for helicopters 3) when dispatched to a forest, fire 4) when ferrying to position for fire deployment 00001-91. 023 r;~', . ¡ - 4 - ~ ~ . 'i- S) when assigned to fire transport (of crews and/or equipment) 6) when assigned to reconnaissance, birddog, or fire detection (after 8 hours in a day). 2.1.3 When assigned to the duties outiined in Article 2.1.2, Articles 13.7.2 and 14.1 of the Collective Agreement with respect to Working Conditions and Employee Benefits shall apply. The Grievor works in accordance with the Pl?ovisions of the collective agreement and the Memorandum of Understanding. The facts of this case are not in dispute. The Grievor testified that he has been employed as a pilot with the Ministry since February 1981. He is a helicopter pilot at Dryden, Ontario, and he flies visual flight rules only; that is to say, he does not fly at night. He works ten days on and four days off for 11 months of the year and in the 12th month, which is in November, he works Monday to Friday inclusive. As provided for in Article 1.1 of the Memorandum of understanding he works "a normal pre-scheduled 40 hour work week". Pursuant to Article 1.3 of the Memorandum of Understanding he receives "30 days advance notice of the work schedule ", which indicates to him the days on which he will work and' - . ",' thE:l,~:days ;.~;þe~;wilL be. off . . , . --~ ,- On April 1, 1990, the Grievor received written instructions covering his work duties for April 2, - the following day. Those instructions called for him to fly to Ignace to transport certain blocks. He was to report at Ignace at 10:00 a.m. and complete his 00001-9 L 023 lIlI : - !) - work by 2:00 p.m. Since Ignace is 50 miles from Dryden his plan was to report to the base at Dryden at 0:00 a.m. on April 2 in order to prepare for the trip and to get 1:0 Ignace by 10: 00 a.m. However, at about 9:00 p.m. on April 1, the Gr ievor received a phone call at his home from his supervisor instructing him to be in Red Lake, Ontario by 7:00 a.m. on the morning of April 2. In order to get to Red Lake by 7:00 a.m. the Grievor considered it necessary to report to the Dryden base at 5:30 a.m. It is important to note that the Griever was asked to join a search and rescue operation which the Ontario Provincial Police were conducting in the Red Lake area. The Grievor's work at Red Lake was finished in about 2 hours after whÜ:h the Grievor flew t4:> Ignace and did the work that he had been instructed to perform there. He reported back to the Dryden ai.r base and went home a't about 5:00 p.m. Under cross-examination, the Griever agreed. that his hours of wor:k are not prescribed for him in the sense that he does not have b:> report to or leave his work base at specified times. It is clear, - . " . '.' as, ,providéð'::~~~.·.the ~(preamble e'to ..the' MemoJ::'andum " of " Understandini;J above referred to, that the Grievor works "under irregular hours of work" and pretty well arranges his own time schedules provided that he performs the work which is required of him by the Ministry. Indeed, in his evidence he stated "I dec ide when I come in". He 00001-91. 023 "-;l "'" ¡ - 6 - added that this is probably about 8:00 a.m. but the decision is I his. I , The Grievor considers that he was called back on April 2 and is entitled to call back pay pursuant to Article 14.1. The employer denies the claim and points to the fact that when the Grievor was employed at Red Lake on April 2, he had not been assigned to "forest fire fighting or related duties" and, therefore, he was not entitled to call back pay. It will be noted that the Memorandum of Understanding defines what is meant by being "assigned to fire and related duties". Those duties are specifically set forth in Article 2.1.2 of the Memorandum of Understanding supra, and it is obvious that the search and rescue work in which the Grievor was engaged at Red Lake did not constitute an "assignment to fire and related duties". Indeed, the Grievor does not claim to have been assigned to fire and related duties while at Red Lake on April 2. .At least two panels of this Board have considered the question of . . - -' .' ,. enti t:l~me~ga'- Schedule" -6, employee to, call- back pay. Those cases .' r __ ---- are OPSEU (Krete) GSB 1055/88 (Veri tv) and OPSEU (Baker/Elliott) GSB 90/89 (Kirkwood) . In both cases, the panels addressed themselves to the same question that confronts us in this f grievance, namely, whether a Schedule 6 employee is entitled to call back pay under Article 14.1 of the Collective Agreement. In 00001-91.023 t- ! - "/ - both cases the grievances were dismissed ,. In Baker/Elliott the panel posed the question before them in the, following words at page 6:- tiThe issue is whether or not the grievors as Schedule 6 employees are entitled to call back pay under Article 14.1" The panel in that case reviewed the decisi,on of the panel in Krete and agreed with the conclusions reached there. In the result, both the Krete and Baker/Elliott cases held that Schedule 6 employees are not entitled as of right to call back pay by virtue of the provisions of Article 14.1. In both cases, the panels concluded that a Schedule 6 employee is not employed on "shift work" and we agree with that finding for the reasons stated in both those cases. The finding that a Sched.ule 6 employee is not employed on shift work is highly signific¡;mt since, under Articl,e 14.1, if he is to qualify for call back p¡;~, the employee must be called back to work"... pr ior to the sta.rting time of his nex't scheduled shift ... tI . If a Schedule 6 employee is not employed on shift work, then there can be no basis fox' claiming call back pay under Art!~7:if4. 1. In the context of t,he case before us, the -".:'- -- Grievor, when he was directed to report to Red Lake on April 2 wal3 not called back to work ".. . prior to the s1;arting time of his nex~ scheduled shift..." We see no purpose .in repeating the same legal conclusions and the underlying reasons which were reached in Krete and in Baker/Elliott. We are in agreement ,'lith the conclusions and. with the underlying reasons. The simple félct is, as stated in thE:! 00001-91.023 (1 I' ._- - 8 - . Memorandum of Understanding, "...that Pilots assigned to operating bases (may) operate under irregular hours of work. . . . II It is understandable and significant that in the Class Salary Schedule of the Ministry's employees rates of pay for Schedule 6 employees are set out only in terms of their annual and weekly rates but not hourly rates as is the case with other employees. The Grievor, as a Schedule 6 employee, by reason of the nature of his duties is truly a "salaried" employee. Because we agree .with and adopt the reasoning in Krete and Baker/Elliott we see no purpose in setting out once again herein at length the jurisprudence on the subject. That would be unnecessarily repetitive. We come to the conclusion, for the same reasons as are stated in Krete and in Baker/Elliott that pilots, because they are Schedule 6 employees, are not entitled to call back pay except in accordance with the provisions of the Memorandum of Understanding. In this regard the provisions of Article 2.1.3 of the Memorandum of Understanding are particularly significant, namely: - '. . ,'''Wheñ~Öqned ,to the duties 'outlined ,in 'Article 2"..1.2, [fire related duties], Articles 13.7.2 and 14.1 of the Collective Agreement with respect to working conditions and employee benefits shall apply". As previously stated, when the Grievor went to Red Lake he was not assigned to fire related duties as specified in Article 2.1.2 of the Memorandum of Understanding. The proviSions-of Article 14.1 00001-91.023 " ,\ - 9 - of the Collective Agreement have no relevance given the facts of this case and cannot be used as the basis for invoking a claim for call back pay. For the above reasons, the grievance is dismissed. DATED at Ottawa the 5th day of February 1991. ~:./?,;-- M. W. Wright"l.--o:-c. Vice-Chairperson ¡{¿¿ <- , It' ~ J .t. -. -.----::!!Iem er ~ A ~i1.t- R(!;~ Member .~~", ~i 00001-91.023