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HomeMy WebLinkAbout1990-1501.Huard & Alldread.91-03-01 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 D~JIVOA..S STREET WEST, SUITE 2100, TORONTO, ONTARrO. MSG 1Z8 TEL. EPHONE/TELEPHO~E; (4~6~ 326-;388 180, RUE DUNOAS OLJEST, BUREAU 2100, TORONTO (ONTARIO], MSG 1.~$ FACSIft~.~LE/TI~LECOP/E : (4:~6) 325-1396 1510/90 IN THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES' COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Huard/Alldread) Grievor - and - The Crown .in Right of Ontario (Ministry of Health) Employer BEFORE: B. Fisher Vice'Chairperson J. C. Laniel Member D. Walkinshaw Member THE M.A. Kuntz GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE C. Edwards EMPLOYER Counsel Stringer, Brisbin, Humphrey Barristers & Solicitors HEARING: · January 8, 1991 This case/nvolves the determination of overtime for the regular part-time civil servants under S.64.1 The parties agreed on the following facts: The Employer, Whitby Psychiatric Hosl>ital, employs both full- time andregular part-//me (RPT} employees, tl~e majority of whom are coverer by the Collect~ve .Agreement between the parties. The Hospital currently employs approximately 730 classified full-time employees, and approxamately 54 classified RPTs. Effective January 1, 1986, across the public service the position of RPT was converted from an unclassified to classifier/status, and amendments to the Collective Ag[.eement which are applicable exclusively to RPTs, came into effect. These provisions a~c.tuatly fi?st appeared in the Collective Agreement which was ettecti~e from January 1, 1984, to January i, I985. Of the RPT workers at the Hospital. the majority work full dy shifts of seven and one-quarter [7 1/4) or eight (8) hours, on a, fixed number of days per week. Thet'e a.[e,fiowever, RPT's ' employed in a/mmber of departments ot the Hosloital who work part days (i.e. less than seven and one-quarter (7 1/4) or eight (8) hours on a set number of days per week. Those departments at the Hospital which employ RPTs who work part days are as follows: (a) Patient Services Department: (Two Ward Clerks and one Community Nurse Clinician); (b) Clinical Records Department: (One Assessment Data Clerk and one Record Data Clerk); (c) Laboratory Department: (Approximately two Lab Assistants); (d) Dietary Department: pp roximately five hell~ers, one manual worker, two Dietary Clerks, one er-k Cashier, and one Dietary Assistant); (e) Plant Services: (one Clerk Powerhouse Worker). -2- The two gr_ievors work as RI>T's in .the Food Serv/ces (also known as Dietary) Department within the Hospital. Ms. Gloria Huard is employed as a Clerk Cashier. Ms. Huard works the following set schedule: Monday - 5 hours Tuesday - 4 hours Wednesday - 7 hours Thursday - 4 hours Friday - 4hours The grievor, Ms. Gloria Alldread, is employed as a Dietary Assistant, and works on a set schedule of five (5) hours on each day, Monday through Friday. Following the amendments to the Collective Agreement in 1986, a practice d_e. velope~ with respect to the gr/evors, and all RPT's in the Dietary Department, of payingovertime at the rate of time anct one-h~f (1 1/2) for hours worked in excess of the regularly scheduled hours on a given day. This practice was not followed consistently throughout the institution; some departments have consistently interpreted the collective agreement as requiring that RPT's who work less than full days be paid at straigtit-time for hours worked in excess of their regularly sched-filed hours up to 7 1/.4 or 8 hours (and at time an;:l one-half for hours beyond 7 i/4 or 8 hours). The practice which has been followed with respect to the grievors and the Dietary Department, which occurred as a result of oversight, was brought to the attention of the Hos¢ital's Human Resources D. epartment' in approximately August, r990.~ By correspqndence 0ated Aug,_ st 21, 1990, the Admimstrator ot the Hospital . informed the Local OPSEU President that it had come to tl~e attention of the Hospital that some regular part-time employ, ees had been paid overtime' for all hours worker in excess of'their scheduled'work week. The Union was notified that, effective October 1, 1990, all regular part-t/me employees will be paid. overtime strictly in accordance with Article 64 of the Collective Agreement. Since O~'tober 1, i990, the grievors have been paid at a straight-time rate for any hours worked in excess of their scheduled hours on a party day up to 7 1./.4 or 8 hours (and at time and one-half for hours beyond 7 1/4 or 8 hours). The grievors a.nd other regular part-time employees are paid overtime tot those hours worked in excess of seven, and one- quarter (7 1/4) or eight .(8) hours on a normal working day, and for all hours worked on a non-working day. -3- I In essence, the issue is whether or not the grievOrs, who regularly work less than seven and one-quarter hours a day, are entitled to overtirae rates when they work more than regular hours but less than seven and a quart.er hours in a single day. Article 64.1 reads as follows: "Overtime" means an authorized period of w,~rk} calcalated to the nearest half- hour, and performed in excess of'seven and one4quarter (7 1/_4) or eight (8) hours, as applicable~ on a n,o..rinal working day for all hours worked on a non-working day." The Union did not put forth any estoppel argument nor did either party indicate that any extrinsic evidence or bargaining history ~vas necessary to interpret this clause. The Union's argument is based primarily on the premises that the term "normal working day" means any hours beyond the employee's normal working hours. In other words, if the grievor was. scheduled to work on a Tuesday from 9:00 a.m. to 1:00 p.m., and in fact she worked to 3:00 p.m. then the fi~ne from 1:00 to 3:00 p.m. was not part of her "normal working day". Thus, Article 64.1 requires that all her extra hours worked be overtime. In support of this proposition the Union relies upon Re: Northern Telephone Ltd. and Communications Workers of Canada 24 LAC (3d) 343 (M.G. Picher). In that case the applicable clause was as follows: "26.06 Except as otherwise provided in this agreement, the p.ayment for alt work performed outside the regular hours shall be made at the employee's regglar hourly rate multiplied by one and one-half (1.5) times the hours worked as defined in Article 26.08." Despite the .able argument of the Union representative, it seems clear that Article 64.1 is drafted so as to take into account two separate occasions upon which overtime is paid for regular part-time civil servants. 1. On normal working days only when the performed hours are in excess of 7 1/4 or 8, or, 2. On a non-working day, all hours worked. © © Article 63 defines a non-working day as "a day on which the employee is not scheduled to workto complete his regularly scheduled hours". This clearly then excludes counting a regular work day as a non-working day, even if the employee works extra hours on that particular day. ThUS for these grievors, since they are regularly scheduled to work from Monday to Friday, any extra hours put in or those days can only qualify for overtime if they exceed 7 1/4. Moreover, had the parties intended to negotiate a clause along the lines suggested by the Union, they would have undoubtedly suggested' language more like the following excerpts from the same collective agreem&nt: "3.4(c) One and one-half (1 1/2) times the basic hourly rate shall ,b.e paid · for authorized hours of work performed: in excess of the employee s regularly -' ' scheduled work week," .. 3.23.2 - In this Section, "overtime" means an authorized l~riod of work calculated to the nearest half-hour and performed on a scheduled.working day in addition to the regular working period of performed on a scheduled day off.. 13.2 -' In this Section, "overtime" means an authorized period of work calculated to the nearest half-hour and performend on a scheduled working day in addition to the regular working period of performed on a scheduled day off- For the reasons above, the grievance is dismissed.  DATED at Toronto this lsllay of ~ro ,1991. er , Vice-Chairperson _ D. Walkinshaw ,