HomeMy WebLinkAboutBoughen-Jenkins Group 17-03-14 1
IN THE MATTER OF AN ARBITRATION BETWEEN:
FRONTENAC YOUTH SERVICES
(The Employer)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The Union)
RE: Group Grievance – Paid Lunch Period – 2011-0361-0014
For the Union: Katherine Ferreira
Counsel
Koskie Minsky
Sheila Boughen-Jenkins
Brenda Sporrell
Grievors
Richard Catton
Local President
Janet Gould
OPSEU
For the Employer: James N. Aitchison
Counsel
Aitchison Law Office
Margaret Craw
Executive Director
Rebecca Cook
Human Resources Manager
Frontenac Youth Services
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Hearings in this matter were held in Oshawa, Ontario on April 24 and August 8,
2013
DECISION OF PAMELA A. CHAPMAN, SOLE ARBITRATOR
This grievance deals with the hours of work and pay of Intensive/Crisis
Service Workers at Frontenac Youth Services. Since this classification was first
introduced, employees have worked 7 hours per day, on a flexible work
schedule, without a clear lunch break. In a labour-management meeting in
October 2011, the employer advised that this practice was, in their view, contrary
to the requirements of the Employment Standards Act, 2000, S.O. 2000, C. 41
(“the ESA”), as a 7-hour shift requires an eating period of 30 minutes. It began
to require employees to take an unpaid 30-minute eating period, thus increasing
their hours of work – but not their pay - to 7.5 hours per day. The union objected
to that practice, and filed a group grievance on behalf of the affected employees,
seeking payment for the 30 minutes per day for all affected employees.
The parties agreed to the basic facts and argued the case without calling
evidence.
FACTS & ANALYSIS
Intensive/Crisis Service Worker Duties and Hours of Work
As noted above, this case was argued with only limited evidence about the
work and schedules of the Intensive/Crisis Service Workers.
They do somewhat similar work to the Youth and Family Counselling
Employees – working to support youths and their families - but on a
crisis/intensive basis rather than having regular interactions with clients. They
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work out in the community, at hospitals, schools and other locations, meeting
with clients, who are largely families in crisis. They are on-call more than other
workers, carrying cell phones, and sometimes required to work on an urgent
basis. At the time the grievance was argued, there were three employees in the
Intensive/Crisis Service Worker I position, and another three in the
Intensive/Crisis Service Worker II position, which requires a Master’s degree.
These positions were created with specific government funding, in
collaboration with other social service agencies, so the hours of work for the
positions were set to match the hours of work of those agencies, at seven hours
per day. However, it is agreed that these employees work flexible hours, as
referenced by the Collective Agreement (see Article 14.01(D) below). The
regular work day was 9:00 a.m. to 4:00 p.m., prior to the change implemented by
the employer, when the day was extended to 4:30 p.m.. However,
Intensive/Crisis Service Workers II are required to work one evening per week,
for which they take off an equal amount of time during day shifts within a two
week period. And the hours of all workers depend on what work they are doing
with particular clients, meaning they could start earlier or work into the evening,
as required.
Importantly, there was no clear evidence about whether or not employees
took breaks, including lunch breaks, inside their 7-hour shifts, before this issue
arose in 2011; similarly, there was no evidence about what instructions
employees were given by supervisors about taking breaks. The parties agreed
that some meetings with youth would occur at coffee shops or fast food
restaurants where food might have been consumed, during working hours. But it
seems that generally employees worked 7 straight hours without clear breaks or
an eating period, until the change announced by the employer in 2011.
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Collective Agreement Provisions
The Intensive/Crisis Service Worker classification was introduced in or
about 2000 – it was a new classification - and the language establishing hours of
work has been unchanged through 3 or 4 collective agreements. It reads as
follows (emphasis added):
14.01 (D) Intensive/Crisis Service Workers
The normal work day for these Employees shall be seven (7)
hours per day and thirty-five (35) hours per week, exclusive of a
one-half (1/2) hour paid meal period. It is understood by the
parties that these Employees follow a flexible work hours schedule
approved by the Executive Director or designate.
The union argues that this language is clear, and that it provides for seven hours
of paid work, plus an additional ½ hour paid eating period. It reads the
expression “exclusive of” to mean “not including”, and argues that the ½ hour
paid meal period referenced must then be added to the 7 hours of working time,
resulting in employees being paid for 7 ½ hours per day and 37 ½ hours per
week.
Interestingly, the employer takes much the same view of the meaning of the
term “exclusive of”, agreeing that it means “not included”. However, it stops
there: it says that the intention of the language is to clarify that these employees
work a 7 hour work day without a paid ½ hour meal period.
The limited evidence of scheduling practices prior to the change announced
by the employer in 2011 supports the employer’s interpretation. It appears that
employees worked 7 hours per day, did not generally take a meal break, and
were paid for 7 hours per day. This practice continued, apparently without
discussion, negotiation, or complaint, for approximately 10 years, through several
collective agreement terms.
Other collective agreement language concerning hours of work also supports
the interpretation of the employer. It is a well-established principle of collective
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agreement interpretation that individual clauses must be interpreted in the
context of the collective agreement as a whole. The rest of Article 14.01 sets out
the hours of work for other classifications of employees, as follows (emphasis
added):
(A) Youth and Family Counselling Employees
The normal work day for these Employees shall be seven and
one-half (7 1/2) hours per day and thirty-seven and one-half (37
1/2) hours per week, inclusive of a one-half (1/2) hour paid meal
period. It is understood by the parties that these Employees follow
a flexible work hours schedule approved by the Executive Director.
(B) Day Treatment Child and Youth Workers
The normal work day for these Employees shall be seven and
one-half (7 1/2) hours per day and thirty-seven and one-half (37
1/2) hours per week, inclusive of a one-half (1/2) hour paid meal
period. It is understood by the parties that it may not be possible
for all employees to be scheduled to a responsibility-free meal
period, and, where this is not possible other arrangements may be
entered into between the employer and that employee. The hours
of work shall be 8:30 a.m. to 4:00 p.m..
(C) Residential Child and Youth Workers
The normal work day for these Employees shall be forty (40) hours
per week, as averaged over a five (5) week period.
The normal work day for group C employees shall be eight (8)
hours per day, inclusive of a one (1) hour paid meal period. It is
understood by the parties that these employees normally eat
meals with clients and may not be provided with a responsibility-
free meal period.
These provisions all make reference to paid meal periods, of either a ½-
hour or one-hour duration. But, unlike Article 14.01(D), they all use the same
formula to describe the paid meal period vis-à-vis the normal work day: each
provision says “inclusive of a….paid meal period”. These provisions are all clear,
and there is no dispute between the parties as to what they require: employees
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work either a 7 ½ hour day inclusive of a ½ hour paid meal period, meaning they
are paid for a full 7 ½ hours per day, or they work an 8-hour day inclusive of an
hour-long paid meal period, so that they are paid for a full 8-hour day.
What then to make of the different language adopted when Article
14.01(D) was added to the collective agreement, in the absence of bargaining
history evidence about the parties’ intentions? Read in light of the formula
adopted in Articles 14.01(A), (B) and (C), it is impossible to accept the union’s
argument that this language means precisely the same thing as the language of
Articles 14.01(A) and (B): that employees were intended to be paid for 7 hours of
working time, and an additional ½ hour paid meal period, for a total of 7 ½ hours
per day. I reach that conclusion for three reasons:
(1) First, if the same meaning was intended, the parties already had
established (and much clearer) language to implement that
intention, and could easily have adopted it. Instead, they
adopted different language;
(2) Second, the natural meaning of the expression “exclusive of” in
14.01(D) is the opposite of “inclusive of” in Article 14.01(A), (B)
and (C). That suggests that it was likely intended to express the
opposite – that there would be no paid meal period – rather than
being a convoluted way to convey the same thing – that there
would be a paid meal period; and,
(3) Third, if the union’s interpretation is correct, then these employees
have been paid 30 minutes less than they were owed for each
day since approximately 2000. There is nothing about the
employer’s decision to require a ½ hour meal period because of
the ESA that changes the language in Article 14.01(D), so if I
am to accept the union’s argument, it has always meant what
they now claim it means. It is hard to believe that the
employees and the union would have failed to complain of that
kind of massive failure to appropriately remunerate several
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employees for more than 10 years, if that was the intended
meaning of the Article.
For all of these reasons, I conclude that the language in Article 14.01(D)
was in fact intended to differentiate this group of employees from the others who,
by the terms of (A), (B) and (C) were being paid for a longer work day inclusive of
a paid meal period. Instead, the Intensive/Crisis Service Workers were to work
a shorter day, without a paid meal period.
The employer offered an explanation for this differentiation, pointing to the
different hours of work and hourly wages of the Intensive/Crisis Service Workers
compared to Youth and Family Counselling Employees to argue that it was
intended that the two groups of employees would earn equivalent salaries.
Counsel noted that the effect of the Youth and Family Counselling Employees
working longer hours at a lower hourly rate, compared to the Intensive/Crisis
Service Workers at a higher rate of pay for ½ hour less per day, is that the two
groups of employees earn the same income. Given that there was no bargaining
history evidence called to establish that this was a deliberate outcome of
negotiations, this is of no significance in determining how to interpret the
collective agreement language.
I conclude that the language of the collective agreement as a whole,
including a careful reading of all of the language in Article 14.01, means that
Article 14.01(D) must be read to provide for a 7-hour work day, without a paid
meal period, for Intensive/Crisis Service Workers. This interpretation gives
meaning to the second clause in the disputed sentence of 14.01(D), which
otherwise does not make sense, and appropriately considers the language in the
overall context of Article 14.01. It is also consistent with the long-established
practice, for approximately 10 years, and through the renegotiation of several
collective agreements, of these employees working and being paid for 7 hours
per day, and not taking meal periods.
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Effect of the Employment Standards Act
If this grievance were only about the collective agreement, and had
nothing changed from the long-standing practice described above, then this
conclusion would be the end of my analysis. However, the employer did change
this long-standing practice and began requiring employees covered by Article
14.01(D) to work a 7 ½ hour day, inclusive of a ½ hour unpaid meal period,
because of the Employment Standards Act. It is this change – rather than a
dispute over the interpretation of Article 14.01(D) – which is really the issue in
this grievance.
The Employment Standards Act provides that employers must give
employees an eating period of at least 30 minutes after five hours of work:
Eating periods
20. (1) An employer shall give an employee an eating period of at
least 30 minutes at intervals that will result in the employee
working no more than five consecutive hours without an eating
period. 2000, c. 41, s. 20 (1).
Exception
(2) Subsection (1) does not apply if the employer and the
employee agree, whether or not in writing, that the employee is to
be given two eating periods that together total at least 30 minutes
in each consecutive five-hour period. 2000, c. 41, s. 20 (2).
This provisions means that the Intensive/Crisis Service Workers must be given
one 30-minute eating period in each shift, as they work longer than 5 hours. It
also means that the eating period must be taken inside their shift, no later than 5
hours after the shift starts; the ESA language does not permit the notional
scheduling of a 30 minute unpaid period at the end of the 7-hour shift, for
example.
The ESA does not require that employees be paid for taking the required
eating period, although of course this can be provided for in an employment
contract or collective agreement (as it has been for the other employees
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described in Article 14.01). The only way an employer and employee can alter
this obligation is through section 20(2), which permits the 30-minute eating period
to be divided into two portions upon agreement. The ESA sets minimum
standards that cannot be contracted out of by employers and employees (s.5(1));
a collective agreement may depart from the ESA only by the provision of a
“greater right or benefit” (s. 5(2)), which cannot be said to apply here. There are
regulations that exempt certain categories of workers from the application of the
eating period requirements (see for example O.Reg. 285/01) but they do not
apply to the work performed by the Intensive/Crisis Service Workers.
Given these requirements, Article 14.01(D) is clearly in conflict with the
ESA. Neither party, or the affected employees, were apparently concerned by
that conflict for many years, but in 2011 the employer raised it with the union, and
began requiring employees to take a 30 minute unpaid eating period. The
employer chose to add that 30 minutes to the existing 7 hour shifts, so that
employees continued to be paid for 7 hours of work per day, inside a 7 ½ hour
shift: 7 hours of paid work, plus 30 minutes of unpaid eating period.
I agree with the union that this change, imposed unilaterally by the
employer, appears inconsistent with the collective agreement on its face: Article
14.01(D) says that the work day of the Intensive/Crisis Service Workers is 7
hours in length, not 7 ½ hours. However, as noted above, I do not agree that the
collective agreement requires the employer to provide these employees a paid
30-minute eating period in addition to their 7 hours of paid work; I conclude that it
clearly says the opposite. So how can the collective agreement be reconciled
with the requirements of the ESA?
I conclude that it cannot be reconciled. The provision as negotiated was
in breach of the ESA, in that it appears to make no provision for an eating period
of at least 30 minutes in the 7 hour shift – paid or unpaid. The employer
attempted to correct that conflict by imposing the 30-minute unpaid eating period
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on top of the employees’ 7-hour shifts, but this is in conflict with the collective
agreement as written as it requires employees to work beyond what is described
as the “normal work day”. Another option might have been to require employees
to take a 30-minute eating period inside the 7-hour shift. However, there is no
requirement, in the ESA or the collective agreement, for that eating period to be
paid time: that was simply not negotiated. And having employees work 7 hours
per day inclusive of an unpaid eating period of 30 minutes would also arguably
be in breach of the collective agreement, which seems to require 7 hours of paid
work per day for these employees.
An ideal solution for this problem would have been for the union and
employer to negotiate a solution to the conflict, as both parties are required to
abide by the provisions of both the collective agreement and the ESA. That
means that they must negotiate hours of work and pay provisions that are in
compliance with the ESA.
However, I have no power to order the parties to bargain new language on
this issue. I also have no power to alter or change any of the provisions of the
collective agreement, to substitute any new provision, or to give a decision
inconsistent with the terms or provisions of the agreement, as confirmed by
Article 12.13 of the collective agreement. My jurisdiction is limited to enforcing
the collective agreement language as it has been bargained.
I do also have jurisdiction to enforce the ESA: section 99(1) says that this
Act is enforceable against the employer as if it were part of the collective
agreement. However, the union has not asked in this group grievance that I
enforce the ESA against the employer – it asks instead that I find that the
collective agreement prevents the employer from enforcing the ESA as it has
done, on the basis that this is in contravention of the collective agreement. The
remedy sought by the union is that all Intensive/Crisis Service Workers be paid
7.5 hours per day/37.5 hours per week, from the date of the grievance.
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Neither party addressed me on this particular issue – how the ESA should
be enforced in this case, in light of the ruling I have made on the interpretation of
Article 14.01(D). As well, this issue is complicated by the extreme delay in
having this matter resolved – the grievance was not heard until several years
after this change was implemented by the employer, and then I caused
significant delay by not releasing a decision in a timely fashion. When the
grievance was heard it was considered under the collective agreement expiring
in X 2011, and since then the parties have likely engaged in bargaining several
times. Because of the passage of time since the grievance was filed, and then
heard, I do not know whether the disconnect between Article 14.01(D) and the
ESA has been resolved by the parties in bargaining.
I conclude that I should not attempt to issue a ruling interpreting the ESA
obligation to provide a 30-minute eating period and how best it may be reconciled
with the hours of work language in Article 14.01(D), without hearing further from
the parties. As noted above, they did not address this issue directly in their
submissions at the hearing. If there is an ongoing dispute over what the hours of
work should be for these employees, and in particular how the requirement to
provide a 30-minute eating period under s. 20(1) of the ESA should be reconciled
with the collective agreement under s. 14.01(D), then I invite the parties to write
to me to address how best we can quickly organize submissions on this issue,
and provide for a final resolution. I will undertake to organize a conference call or
in-person hearing quickly, without cost to the parties, and to issue a decision
immediately, orally if possible. But if the parties advise that they have resolved
this issue to their satisfaction in the time following the grievance, or wish to have
it resolved in another way, then this decision will be final and no further steps
need be taken.
For the reasons set out above, the grievance is denied to the extent that it
is addressed above: that is, I conclude that the Intensive/Crisis Service Workers
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are not entitled to be paid for 7.5 hours per day (37.5 hours per week), and no
order issues. However, I remain seized to deal with any further issues arising
from that decision, to the extent the parties wish me to take any further action.
DATED AT TORONTO THIS 14th DAY OF MARCH, 2017
_________________________________________
Pamela A. Chapman, Arbitrator