HomeMy WebLinkAbout1991-1725.Simcoe et al.92-08-11 ONTARIO £MP[Q¥~S DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE C,OMMISSION DE
SE'FrLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE £1QO, ~'ORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELePHONE: [~16.1 226~I$88
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG fZ8 FACSIf.41Z.E/T~L~COPiE : (416) 326-t396
1725/91, 2376/91,
2377/91, 2513/91
IN THE MATTER OF ~ ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Simcoe et al/ Chapados et al/
Storey et al/ Coulson/Drake)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
BEFORE: M. Gorsky Vice-Chairperson
M. Lyons Member
I. Cowan Member
FOR THE J. Paul
GRIEWOR Grievance Officer
Ontario Public Service Employees Union
FOR THE S. Patterson
EMPLOYER Counsel
Legal Services Branch
Management Board of Cabinet
HEARING Febraury 28, 1992
May 21, 1992
1
DECISION
At the opening of the hearing, counsel for the parties filed
an agreed statement of fact (Exhibit 1), containin9 11 paragraphs.
By further agreement, counsel for the parties agreed to 7 more
paragraphs of agreed facts. All of the facts agreed to are as
follows:
~Agreed Statement of Fact
1) There are 3 groups of grievors involved in this
dispute, which the parties have agre'ed to
consolidate.
The groups are as follows:
(1) Simcoe et al. GSB# 1725/91
(2) Storey et al. GSB# 2377/91
(3) Chapados et al. GSB~ 2376/91
With the exception of two of the grievors, all the
grievors hold positions of Residential Counsellor
(Counsellor 2 Residential Life).
Two grievors hold positions of Residential Team
Leader (Counsellor 3 Residential Life)
2) The Simcoe et al. group is comprised of 28
grievors, (Grievances filed August 28 - September
2, 1991)
The Storey et al. group is comprised of 28
grievors. (Grievances filed October 26, 27, 1991)
The Chapados et al. group is comprised of 15
grievors. (Grievance filed October 31, 1991)
3) All grievors are employees workin9 in the
Residential Service Department of the Adult
Occupational Centre, Edgar, a Ministry of Community
& Social Services Facility for Developmentally
Handicapped Adults north of Barrie.
4) All grievors are scheduled 4.7 employees for which
the normal hours of work are 40 hours per week.
5) Ail grievors are classified members of the Public
Service with various dates of hire.
6) The grievors . are employe~ 'at a facility where
Compressed Work Week Agreements have been in effect
since August 5, 1987.
7) Two Compressed Work Weeks have been in effect at
the Adult Occupational Centre and are for terms as
follows:
Compressed Work Week #1 - (attached)
Effective Auguzt 5/87 - August 2/88 and by
agreement of the Local Union and Employer remained
in effect until June 24, 1991.
Compressed Work Week #2 - (attached)
Effective date June 24, 1991 - June 23, ~992
Compressed Work Week #2 is currently in effect.
8) The Local Union and Employer entered into
negotiations of the Compressed Work Week #2 as a
result of a GSB decision %1190/89 that dealt with
staffing levels at the Adult Occupational Centre,
This decision was released November 13, 1990.
9) The grievors hours of work are as set out in
Article 2 of Hours of Work of the current
Compressed Work Week Agreement,
Article 2 - Hours of Work
The normal Hours of Work for employees covered by
this 'agreement are:
(1) a) AM Schedule: 80 hours of work per two
week period consisting of six (12) hour
shifts and one (8) hour shift.
There are two groups of employees who work the AM
schedule. [Their] hours are as follows:
Group A: 06:45 a.m. - 7 pm (12 hours)
Group A: 10:~5 a.m. -'11 p.m. (12 hours)
Group A: 06:45 a.m. - 3 p.m. (8 hours)
Group A: 14:45 a.m. - 11 p.m. (8 hours)
Group B: WORK THE SAME ~OURS AS SET OUT FOR GROUP
A, WHEN GEOUP A ARE ON DAYS OFF.
(2) b) PM Schedule: 80 hours of work per two
week period consisting of five {12) hours
shifts and two (10) hour shifts.
There are two groups of employees who work the PM
schedule. Their hours are as follows:
Group A: 10:45 p.m. - 11 a.m. (12 hours)
10:45 p.m, - 9 a.m. (10 hours)
G~qup B: WORK THE SAME HOURS AS SET OUT IN GROUP
A, WHERE GROUP A ARE ON DAYS OFF.
10. The 'Employer issued a Memorandum on October
1991 (attached) to the Employees of the Adult
Occupational Centre indicating a change in %heir
practice of Holiday Payment and the 12 hours
Compressed Work Week. (Attached)
11. The Employer has paid out the following holidays
pursuant to the October 10, 1991 Memorandum from
Mr. Ba~tle~', in response to Mr. Chatterton's
Memorandum of October 8, 1991.
August 5/91 Civic Hblsday
September 1/91 Labour Day
October t4/91 Thanksgiving Day
November 11/91 Remembrance Day
December 25/91 Christmas Day
December 26/91 Boxing Day
January 1/92 New Year's Day
12. Employees~(~l) not working on a statutory holiday
(art.48), or (2) on a regular day off as defined in
art.8(1) are paid under clause (d) of Exhibit 4.
This clause interprets art.19.4 to state that a day
is an 8 hour day. The Union position is that a day
should be the length of an employee's shift be that
8, 10 or 12 hours.
13. Employees not working on a statutory holiday
(art.48) because they have requested, and been
granted, leave under art.48, are being paid under
clause (c) of Exhibit 4. They are paid 8 hours and
are given the option of using accumulated credits,
either vacation or compensating leave, of 4 hours
or 2 hours respectively to reach' a total of 12
hours or 10 hours. The Union position on this
point is that paid holiday and hours assigned for
an employee on that day (the scheduled shiftl are
the hours they should be paid to allow for SO hours
in a bi-weekly pay period.
14) For the purpose of this proceeding, the parties
agree that each employee in a given year will be
scheduled to work apprOximately one half of the
statutory holidays identified in art.48.
15) Historically the Employer had paid benefits under
art.48 and art.19.4 and compressed work week number
1 (Exhibit 2) of 10 hours. The parties agree that
in the circumstances the prior conduct does not
provide grounds for an estoppel.
16) The parties requested that the board give a ruling
on the appropriate interpretation of these articles
(48 and 19) in the context of compressed work
weeks. The parties request that the board remain
seized of all grievances and the parties reserve
the right to. lead evidence, if necessary, at some
subsequent date on the impact for each individual
Grievor in the event that a violation is found.
17) Refer to art.29 - Leave Without Pay. The parties
agree: should employees request a leave of absence
without pay, for example, one day or one shift
during a bi-weekly pay period, and the shift with
respect to which the request was made has a value
of 12 hours, that is what the Employer would deduct
as l~ave without pay. By way of further example,
if a two-day leave without pay was granted and the
shift had a value of 12 hours, 12 hours would be
deducted as leave without pay on both days. If the
shift value, in the circumstances described had an
8 hour valve in the bi-weekly schedule, that would
be the shift value deducted from the empl0yee~s
pay.
18) Refer to art.28 - Leave For Union Activities -
specifically art.28.1. As in th~ examples 9iven in
paragraph 17 of the agreed statement of facts, if a
shi.f~ has a value 12 hours, that is the value that
the Employer deducts from the bi-weekly pay of each
employee period on the basis of a hypothetical
example of a 4 day leave granted under art '28, with
3 of the days having a shift value of 12 hours per
day and 1 with a ~kift value of 8 hours per day,
the amount that would be deducted .from the
employee's by the Employer would be 12 hours per
day for each of the 3 days leave and 8 hours pay
for the shift with the 8 hour shift value.
The memorandum of October 10, 1991 referred to in paragraph 10
of the agreed statement of facts was filed as Exhibit 4 and is as
follows:
Re: ~olida¥ Payment And
The 12 Hour Compressed Work Week
In the past we have reviewed the Ministry's
interpretation of some of the variations of holiday
payment. Recently, some nuances have surfaced which
suggest we need to capture all the .combinations and what
staff entitlements are. We.need to then ensure that all
staff are aware of these interpretations. This
information is e~peciatly importan% since we have been
overpaying staff in some instances in the past. Thus, we
have to be clear that our current interpretations may be
a change from past practice.
Therefore, with respect to holiday payment, the following
represents all the possible scenarios:
a) Where an employee is regularly scheduled to work on
a holiday, he/she will be paid 2 x 12 hours* plus 8
hours of compensating leave.
b) Where an employee is regularly scheduled to work on
a holiday but calls in sick, the attendance record
will show an 8 hour stat day and 4 hours of sick
leave for that employee for that day.
c) Where an employee is regularly schedule to work on
a holiday but asks for the day off, the employee is
credited with an 8 hour stat (ie: is paid for 8
hours) but must apply 4 hours from other
accumulated credits if pay for a full 12 hours is
desired.
d) Where an employee is regularly scheduled to be off
on a holiday, the employee will receive an 8 hour
stat day in his/her bank of accumulated credits
(ie: the employee may have an 8 hour day off in the
future).
Please share the above information with your staff. As
you are aware,.' these interpretations have been challenged
via the grievance process. Therefore, ultimately, the.
interpretation of holiday payment wil~ be upheld or
revised by an arbitration board,
* {or 2 x 10 hours or 2 x 8
hours, depending on
length of shift)
Six awards were filed by the Union and three by the Employer,
with some of the cases filed by the Union also being referred to by
counsel for the Employer. The facts in most of the cases filed are
insufficiently similar to those in the case before us so as to make
them very helpful in deciding the issue before us. However, in the
cases relied upon by both parties, reference is made to an excerpt
from the oft cited case of Re Sealed Power Corp. of Canada Ltd.
(1971)~ 22 L.A.C. 371 at 373 {Shime), which is as follows:
Whatever the original social or religious reasons,
certain statutory holidays are now a basic part of the
Canadian industrial fabric and employees expect to
receive the statutory holiday with payment or added
compensation to their usual wage rate if they work on
that day, while employers anticipate granting the
statutory holiday or paying compensation in addition to
the usual wage rate if.they require their employees to
work on those days .... In most case~ certain stg~utorY
holidays have become so entrenched that an employee Will
consider the day off with pay as a right rather than a
privilege. The holiday is as an opportunity to engage in
social or religious activity without loss of income, but
it is also viewed as an opportunity for relief from the
normal work pattern and its attendant pressures.
The grievances filed dealt with two situations:
1o Where an employee would normally have been scheduled to
work on one of the paid holidays provided for in art.48.1
an~ where the scheduled shift was for 12 hours.
7
2. Where the holiday included under art.48 coincided with an
employee's scheduled day off and he did not work that
day, as is provided for in art~lg.4.
.In the first case, it was the position of the Union that the
Employer had violated the provisions of the collective agreement by
only paying the employee on the basis of an eight.hour shift. In
the second case, it was the position .of the Union that the Employer
had violated the provisions of art.19.4 by treating the employee as
only being entitled to receive as another day off one limited to
eigh5 hours for payment purposes.
If the position of the Employer were accepted then: "The
holiday ... as an opportunity to engage in social or religious
activity without loss of income," referred to in sealed Power,
would be adversely affected.
The presenter for the Union. referred to Fri~ell, 367/87 (A.
Barrett), where reference was made, at p.4, to the fact that the
local agreement applicable in that case specifically amended parts
of the main collective agreement to provide for instances where
proration and the converting of days into hours occurred in certain
circumstances. In the case before us, overtime pay commences only
after hours have been worked in excess of the regular working
period specified in art.2.i, establishing the compressed work week
hours of work. Certain entitlements where an employee works on a
holiday specified in art.48 and opts for compensating leave under
art.19.2 are prorated to take account of the employees' compressed
work schedule for the day in question. The short term sickness
article was amended to change days to hours and vacation credits
and Worker's Compensation benefits are also converted from days to
hours in the local agreement. As was noted in the Frizell case, 'at
pp.4-5: "Clearly the parties' attention was drawn to the issue of
pro-rating and converting days into hours where deemed a~plicabte
and therefore the failure on the part of the parties to convert [in
that case] bereavement leave from days into hours should be
presumed intentional." Here, too, there is no basis for a proration
and, as' ha~ been noted, treatin9 a day as a day is consistent with
the underlying purpose of granting a holiday with pay under the
collective agreement.
There was no suggestion that an employee under the compressed
work week was obtaining a benefit akin to that which would be
obtained where pyramiding existed.
Counsel for the Employer argued that there is no requirement
under the collective agreement that an employee work 80 hours per
week, or "more importantly" that employees should be paid for 80
hours in a bi-weekly period. He gave a number of examples under
the collective agreement where an employee would not receive pay
for 80 hours on a bi-weekly basis. He referred to art.29 of the
collective agreement dealing with leaves without pay. The example
being of an employee electing to take a leave of absence without
pay who then receives less than 80 hours pay During a bi-weekly
period. He also referred to the similar situation under the short-
term sick leave provisions of art.52 where the employee had placed
himself in a position where he would receive tess than 100 per cent
of sick leave and would be paid less than 80 hours pay for a bi-
weekly period. The example specifically referred to was one
arising out of art.52.1(ii) where:
An employee who is unable to attend to his duties due to
sickness or injury is entitled to leavE-of-absence with
pay as follows: ...
With seventy-five percent (75%) of regular salary for an
additional one hundred and twenty-four (124) workin9 days
of absence, in each calendar year.
Counsel for the Employer also referred to art.32 dealing with
jury duty leave where it was possible for an employee to be on
leave without pay and thereby receive less than 80 hours pay in a
bi-weekly period but still to be considered to be scheduled for 80
hours, without the Employer being in violation of the provisions of
art.2 of Exhibit 3.
The essential position of the Employer was that the provision
with respect to the scheduling of 80 hours of work over a two week
period as set out in art.2 of exhibit 3 must be differentiated from
the obligations of the parties under the provisions of art.19 of
the collective agreement. We agree with counsel for the Employer
that there is no obligation to schedule employees if to do so would
impose an additional financial burden on the Employer. An example
of this proposition is found in D_~, 383/83 (Samuels), where it
was held ,at p.6, that there was no provision in the collective
agreement which prohibited management from ordering the grievor to
take the day off on a statutory holiday, even though he was
scheduled to work.
In the several examples given by counsel ~or the Employer the
collective agreement itself provides for wages less than the amount
that would be earned if the weekly schedule had been worked. In
the case before us there is no such provision, nor is s~ch a
conclusion implied.
When ar%.48.1 refers to "paid holidays" it does not provide
that payment will be only based on a working day of a stated
length. Consistent with the basis for granting a holiday with pay,
the nttmber of hour~ for which payment is to be received is based on
the hours that would be worked. In the circumstance, we have
attempted to comply with the request of the parties, limiting our
findings to an interpretation of the number of hours to be paid to
an employee pursuant to art.48.1 and 19.4 under the compressed~work
week schedule provided for in Exhibit 3. The parties indicated,
that with this interpretation they would attempt to work out the
remaining differences between them with respect to the grievances
that were filed. If they are unable to do so, then, as was agreed,
we would retain jurisdiction to deal with such differences.
11
It is significant that arts. t9.1 and 19.2 which deal
respectively with payment of premium pay when an employee works on
a holiday [art. ig.tt, and additional pay at straight time or
compensating leave to an employee who has worked on a holiday [art.
19.2] provide:
(a) In the case of premium payment for working on a holiday, the
payment is for seven and one-quarter, eight "or the number of
regularl~ scheduled hours applicable." In the case of an
employee working the compressed work week where the applicable
hours are 12, the premium would be paid for those hours,
In the case of the the additional pay at straight time or the
in lieu day, the hours with respect to which pay or
compensating leave are calculated are seven and one-
quarter or eight and there is no reference to "the regularly
scheduled hours, as applicable."
It would have been possible to do the same thing in arriving at the
number of hours compensation payable to an employee who did not
work on the holiday under art. 48 or whose regular day off
coincided with the holiday. Unfortunately, they did not, and we
must deal with the issue presented to us on the actual language
negotiated.
In the case of payment under article 19.2, if employees who
worked a compressed work week received 12 hours pay where those
12
were the "number of regularly scheduled hours ... applicable," then
such employees would recieve a greater entitlement than other
employees. This is a point that was made in an interest arbitration
where the matter was considered: Participating. HgsDitals and O.N.A.
(Simmons) dated November 7, 1986, unreported, where the majority of
the board ruled that nurses on compressed work weeks would "receive
11 lieu days off to consist of the non-compressed daily hours,
being seven and one-half hours. The majority of the board stated,
at, p.29, that as the nurses, whether on the compressed or regular
work week will "all work the same number of hours," it seemed to
them "that over a period of one year the nurses must alt receive
the same entitlement." Similairly, in the case of payment for
holiday pay for the holiday and an in lieu day under art. 19.04,
employees, whether they work a compressed or non-compressed work
week, will over the year work the same number of hours. They should
al/ receive the same entitlement with respect to holiday pay in the
sense that no employee Should be penalized by suffering loss of
income because she enjoyed a holiday. If the argument of the
Employer was to prevail, the result would be that the employees
would be dealt with differently and the employees on the compressed
work week would not enjoy the holiday without toss of pay as is
universally accepted. As a result of entitlement to ho. lday pay
under art, 48, and under art. 19.4, an employee who works a
compressed work week should be paid the number of hours for a
stipulated holiday so that'she would suffer no loss of income, when~
compared with an employee working the regular work week. The number
13
.of .hours· pay for which the employee would, be entitled would be
those applicable so as to insure that all employees are treated
equally and do not suffer a loss of income because they have a day
off on a~holiday.
The parties can, of course, by appropriate language create a
disparity between the entitlement to.holiday pay under arts. 19.4
and 48 between employees who work compressed and non-compressed
work weeks. It would require clear language 'to find that they had
intended to do so. For the reasons stated above, they have not done
so. Our reference to the Participatin~ Hospitals case was for the
purpose of showing some of the labour relations principles that
must be considered in negotiating provisions relating to aspects of
holiday pay. The Sealed Power case was cited to show how
arbitration boards have viewed holiday pay in the absence of
specific language that departed from the rule there enunciated. In
the case before us, the conclusion tha~ an employee working a
compressed work week is entitled to be paid for the number of hours
on a designated holiday that would result in no loss of income is
supported both by the jurisprudence that has been consistently
followed~as'well as by our analysis of the language they have
negotiated.
Dated at Toronto this .1lthday of Au§ust,1992.
M. Gorsky - Vice Chairperson
I. Cowan Member