Loading...
HomeMy WebLinkAbout1990-1733.Ford.92-05-05 ONTARIO EMPLOYES OE LA COURONNE CROWN EMPLOYEES DE L 'Ot',ITA RiO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 O~JNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG IZ8 TELEPHONE/TELEPHONE: 1733/90 IN THE ~TTER OF ~ ~XT~TION Under THE C~ EHP~YEES COL~CTI~ B~G~ININ~ ~CT BefOre TH~ GRIE~CE 8ETT~~ B0~ BE~EN 0PSEU (Ford) - a~4- The Cro~ in Rich2 off On2ario (~inist~ off Co~vnit~ and Social Se~ices) ~plo~er BEFOg: R. Verity Vice-Chai~erson P. Ki~ Me. er .. R. Scott Me.er FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE S..McDermott EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING August 26, 1991 October 9, 1991 2 DECISION Kirk Ford is employed with the Ministry's Technology Support Branch in the classification of Systems Officer 3. As such, he is a Schedule 6 employee pursuant to Article 7.3 of the collective agreement. In a grievance dated August 15, 1990 Mr. Ford claims entitlement to stand-by pay under Article 15, rather than on-call pay under Article 16 for mandatory duty beyond his regular work schedule during the week of July 2, 1990, and when so assigned in subsequent weeks. The relevant provisions of the collective agreement read: 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. ARTICLE 16 - ON-CALL DUTY 16.1 "0n-call duty" means a period of time that is not a regular working period, overtime period, stand-by 9eriod, or call-back period, during which an employee is required to be reasonably 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 all hours such employee is assigned to on-call duty. Initially, management adopted the position that Schedule 6 employees have no entitlement under Articles 15 or 16. The instant grievance was delayed pending a decision in OPSEU (Graham et al) and Ministry of Labour 160/90. On April 2, 1991 Vice-Chairperson Kennedy found that, in appropriate circumstances, Schedule 6 employees who have ended.their regular working period are entitled to payment under the provisions of Articles~15 and 16. In the instant matter, we were advised that following the decision in Graham, the Employer acknowledged the grievor's entitlement to on-call pay under Article 16. The narrow issue on the particular facts of this case is whether the grievor, while performing what the Employer characterizes as "on-call duty", is required to make himself "available for immediate recall to work" or "reasonably available for recall to work". 4 The grievor provides technical computer expertise in the maintenance of a number of government projects including the "Comprehensive Income Maintenance System" (CIMS). In 1990, there were approximately 450,000 welfare recipients entitled to payments under the provisions of the Ontario Family Benefits Act. CIMS is the principal computer system used by the Ontario Government to collect, retain, organize and up-date information and to provide for the issuance of cheques or direct deposits for some 350,000 welfare recipients. The system functions on a 24 hour basis with some 1,200 field workers or case workers, both municipal and provincial, accessing the system on a daily basis Monday to Friday between 7:30 a.m. and 6:30 p.m. These workers access the system to enable them to make daily decisions on entitlement to payment. Apparently there are approximately 15,000 transactions posted daily. In addition, there are print-outs of CIMS information available to case officers. After 6:30 p.m., during non-working hours, the system processes or integrates the daily information. There is an operational requirement that the system be "up and running" for the next working day at 7:30 a.m. The grievor provides on-going maintenance for the CIMS system. He works 9:00 a.m. to 5:00 p.m. Monday to Friday at the computer terminal at Queen's Park. A system "abend" occurs when the computer cannot continue processing a transaction and as a result the entire system comes to a halt. Transactions cannot be posted if the system is down with an "abend". The consequence of the 5 system malfunctioning includes the lack of availability of accurate information to field workers and case workers and delay in the processing of cheques or direct deposits. The Operations Branch runs and monitors the CIMS system. Systems Officers are not required to monitor the program at any time. This grievance arises from the Employer's decision to implement a new system of duty for the grievor and others in early May of 1990. The grievor was advised by his supervisor, CIMS Project Co-ordinator Rose Reeve, that he would be placed on a rotating ten week schedule to provide "production on-call support" one week out of ten from 6:00 p.m. to 8:00 a.m. Monday to Saturday. Mrs. Reeve stated that during on-call assignments the grievor would be provided with a pager or "beeper" and a portable computer terminal for home use. According to the grievor, Mrs. Reeve told him to talk to his co-workers for instructions as to the use of equiPment. The supervisor confirmed her expectations in a memorandum dated May 7, 1990. That memorandum reads as follows: As per our conversation on Monday, you will be required to provide production on-call support for the CIMS system. This support consists of being "on-call" for one week approximately every ten weeks. As per the attached schedule, Kirk you will be on call the week of July 2, and Fred you will be on-call the following week, July 9. For your general information, Production on-call support consists of the following: ~ being available from 6:00 pm to 8:00 am Monday to Saturday to solve Production problems (a beeper and 6 portable terminal will be available for your use) - providing system support to the Operations group if there is an abend in CIMS processing, by solving the problem (a helpful hints guide is avaflable which outlines procedures and options available) - consult/inform your supervisor before any major steps are undertaken to solve Production )problems encountered - ensure proper follow-up is taken the next morning following any CIMS Production p:roblems - record any time spent responding to Production problems separately on your timesheet under Production On-call support - If you are unable to provide on-call support for a particular day you may arrange alternate coverage with a collegue (sic) and it is your responsibility to notify the operations group and your supervisor accordingly. As an additional work alternative to on-call support we can discuss the possibility of changing your working hours during your week of on-call, operations pe:=mitting. For example, work 4:00 pm to 12:00 am instead of 9:00 am to 5:00 pm. If you have any questions or comments, please feel free to see me. The grievor testified that he is required to respond "immediately" to the beeper by calling the Operations Branch at 5140 Yonge Street to ascertain "the problem". He is then required to connect the portable terminal into his private home telephone in order to log onto the Queen's Park computer system. This "log-on procedure", as it was called, takes some 10 to 15 minutes. The grievor is then required to identify and resolve the problem. In the event that a problem can't be resolved, there is a back-up procedure whereby the grievor is required to contact Supervisor Reeve or team leader Bruce Babin or any co-worker. The grievor maintains that with the requirement tkat the system must be operable by 7:30 a.m., there is an immediatR response required to correct problems arising overnight. The grievor testified that he is called "at least once a week" and cited in particular, one example of a telephone call at 3:00 a.m. on July 4, 1990. The grievor expressed concern about taking work home, the possibility of increased hours of work or discipline if he refused on-call duty, the fact that his telephone would not be available when the portable terminal was in use, and his understanding that there was no compensation for on-call duty. Project co-ordinator Rose Reeve testified that she has been required to provide production on-call support for approximately four years. In May 1990, she established the rotational schedule for on-call duty to achieve maximum flexibility whereby the schedule can be re-arranged to accommodate vacations, duties can be switched among Systems Officers or regular working hours can be changed from 9:00 to 5:00 to 4:00 p.m. to midnight. Mrs. Reeve testified that there were no instructions given to Systems Officers to be immediately available for recall to work. In cross- examination, she agreed that any on-call employee is expected to call Operations "as soon as they can" and "within a few minutes of receiving the beeper call". According to Mrs. Reeve, the initial contact with Operations provides the information to make a decision 8 as to what action, if any, should be taken. Mrs. Reeve explained that while Operations Personnel do not have the technical expertise of Systems Officers, they routinely attempt to resolve a problem prior to contacting on-call Systems Officers. In her words: "the purpose of on-call duty is to deal. with situations that Operations can't deal with". The beeper is provided to allow a Systems Officer the flexibility to leave home, as for example, to attend a movie, go shopping or go out for dinner. Mrs. Reeve's expectation was that an on-duty Systems Officer will respond promptly and attempt to deal with the problem "as soon as possible". However, she stated that where a Systems Officer is away from home and unable to respond, she expected to be so advised by telephone. According to her evidence, most abends occur prior to midnight or at about 2:00 a.m. The longest period of time required to correct an abend was said to be three to four hours. ~In cross-examination, she acknowledged the operational requirement that the system be "up and running" by 7:30 a.m. She also acknowledged that where an abend occurred close to 7:30 a.m. there is "more pressure in dealing with the problem". Mrs. Reeves confirmed that the CIMS system normally finishes data processing between 2:00 a.m.. and 3:00 a.m. The Union argues that, based on the importance of the CIMS system in the administration of welfare benefits in Ontario, the 9 operational requirement to have the system in order by 7:30 a.m., the Ministry required an "immediate response" by Systems Officers and accordingly payment should be made under the stand-by provisions of Article 15. In support, the panel was referred to the following authorities: ADpelle and Ministry of the Environment 147/78 (Swan); OPSEU (P. Walker and Wayne TaYlor) and Ministry of the Solicitor General 417/82, 418/82 (samuels); and OPSEU (Bedard et al) and Ministry of Health 1281/85 (Brandt). The Employer contends that in the absence of an emergency situation, there was no need for an immediate response. Ms. McDermott contends that the only possible immediate response was in reply to the beeper and that stand-by was meant to deal exclusively with emergency situations. The following cases were brought to the panel's attention: OPSEU (Graham et al) and Ministry of Labour, supra, OPSEU (Jamieson, Bgll, Cooper, Rowe, Marshall, Wood, Jermey) and Ministry of Community and Social Services 162/77 (Prichard); and OPSEU (Monqrain et al) and Ministry of the Environment 939/86 (Slone). The definition of "on-call duty" in Article 16.1 is similar to the definition of "sta~d-by time" in Article 15.1. Both provisions refer to periods of time that are other than regular working periods. The significant distinction is the stated requirement'in Article 15.1 that an employee on stand-by time is "available for immediate recall to work" as opposed .to "reasonably available for 10 recall to work" under 16.1. 61SB decisions have addressed that distinction in a number of different ways. We adopt the approach taken by Arbitrator Samuels in OPSEU (Walker and Taylor) and Ministry of the Solicitor General, supra, where after reviewing a number of decisions, he states at p. 13: While each of these cases turned on its own facts, there are some general conclusions which can be drawn from the jurisprudence. Firstly, the matter is not decided simply on the language which the Employer uses. Merely calling the pager system "on-call" does not make it an Article 16 situation. The question is what :are the real requirements of the duty. Secondly, one gets at these real requirements by examining the circumstances of the job, and the written and verbal instructions to %he employees. In our view, the Employer's expectation is crucial to determine entitlement under either Articles 15 or 16. That expectation will be established on the ewidence adduced as to the nature of the job and the written and verbal instructions given by management. In the instant matter, it may well be that the Employer was influenced in the first instance in the belief that Schedule 6 employees were not entitled to payment under either Article 15 or 16 and therefore did not.issue specific instructions as to the required response time. The parties agree that there is an operational requirement that the CIMS System be "up and running" by 7:30 a.m. Monday to Friday inclusive. Further, it was agreed that once the grievor connected the portable terminal into his home telephone, he was deemed to be at work. The onus is upon the Union to establish its case on the usual preponderance of evidence. The grievor testified that his' understanding was that he must respond "immediately". However, the memorandum dated May'7, 1990 made no reference to response time. Further, Mrs. Reeve gave the grievor no instructions as to management's expectations in that regard. The grievor appears to have made no effort to clarify the issue with his supervisor. On the evidence of Mrs. Reeve, we cannot find that the Employer expected an immediate response for those required to perform CIMS on-call support assignments. We are satisfied that the only immediate response management required was a prompt response to the beeper signal. In our.view, that expectation is not inconsistent with the requirement to be "reasonably available" for recall to work. We are satisfied that the evidence supports a finding that the Employer has provided considerable flexibility for those required to pprform the support assignment in question. In that regard, we adopt the rationale of Vice-Chairperson Prichard in the Jamieson, Bell case, supra, where he states at p. 8: ...By providing both Article 15 and Article 16, the parties have indicated their intention to create two different statuses. To give the agreement integrity in its interpretation we must recognize that by creating the category 12 of on-call duty, the parties must D. ave intended to restrict the application of stand-by time in Article 15 to situations where there is little flexibility in the requirement that the employees be immediately available. The on-call duty provisions must then contemplate a relatively wide array of arrangements for ensuring that employees will be available for recall. The grievor testified that while performing on-call support, the odds were that he would get a call. "at least once a week". The Union was able to cite three such incidents when the grievor received calls from Operations while on on-call duty; namely, July 4, September 10 and November 15, 1990. In our view, the frequency of actual recall to work is not a factor as to whether the assignment was stand-by (Article 15) or on-call (Article 16). Clearly, management has the authority to place employees on on-call duty as they appear to have done in this case. However, having done so, management cannot now demand an immediate response. With the burgeoning number of welfare recipients in Ontario in these difficult economic times, the ratic.nale of Vice-Chairperson Swan in the Cloutier case, 128/77 merits repetition: .... We are uneasy at a management style which leaves critical contractual interpretation issues to individual employees and does not even attempt to explain what is expected of them. It may be appropriate to issue a warning that the Employer may well run the risk of expensive and possibly dangerous delays by adopting such an approach, and that the Employer's right %0 rely on the provisions of Article 16 in disciplinary cases may be considerably affected by such a clear failure to manage." In the result, the grievance is upheld to the extent of a 13 finding that the grievor is entitled to on-call pay under Article 16 of the collective agreement. DATED at Brantford, Ontario, this 5th day of May, 1992. R. L. VERITY, Q.C. -VIcF/CHAIRPERSON . BER ~. SCOTT -