HomeMy WebLinkAbout1994-0734BERNARD97_12_09
ONrARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (41tJ) 3~-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (41tJ) 32tJ-139fJ
GSB # 734/94
OPSEU # 94A958-61
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Bernard et al)
. Grievor
- and -
the Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE N. Dissanayake Vice-Chair
FOR THE J. Gilbert
UNION Grievance Officer
Ontario Public Service Employees Union
FOR THE B Loewen
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING September 30, 1997
2
DECISION
On September 20, 1995 six individual grievances were scheduled for
hearing before me As recorded in the decision dated October 13, 1995, at
the commencement of the hearing the parties "agreed to adjourn sine die the
grievances filed by Marlene Bernard, Theresa Gusek, Diane Kameda and Lori
Lee Matheson, and to proceed only with the grievances of Julie Northcott
and Sandra Ostman H The Northcott/Ostman grievances were heard and the
decision was released on October 13, 1995 The Board concluded that "the
employer contravened the collective agreement by failing to pay overtime
rates to the two grievors for the hours worked in excess of 36-1/4 per week
since they commenced their employment in the Dryden Fire Response Centre
.
The employer is directed to compensate the grievors accordingly, together
with interest H An application filed by the employer for judicial review
of this decision was dismissed by the Ontario Court of Justice (General
Division) Divisional Court on February 3, 1997
On September 30, 1997 the 4 individual grievances which had been
adjourned sine die, came back on for hearing before the Board There was
a dispute between the parties as to how the Northcott/Ostman decision would
impact upon these four grievances
To put it simply, the Northcott/Ostman grievances included claims for
overtime for work performed in classified positions as well under
unclassified contracts While the employer resisted those grievances on
other grounds, it did not make any distinction between overtime worked in
classified positions and that performed under unclassified contracts The
3
Board allowed the grievances and ordered compensation with regard to all
of the overtime
The employer implemented the Board order to Northcott/Ostman It
conceded that, having failed to argue that overtime pay did not arise with
regard to unclassified hours in excess of 37-1/4, but less than 40 hours
a week, it had waived its rights with regard to those two grievors
However, with regard to the 4 present grievances the employer sought to
raise that argument, which it had failed to raise in the Northcott/Ostman
grievances
.
The union disagreed with the employer's position on the merits
However, the union submitted that the Board ought not hear the merits of
that argument in the first place It was the union's position that the
employer, having failed to draw any distinction between overtime
entitlement for classified versus unclassified work in the Northcott/Ostman
grievances, should not be allowed to do so in relation to these 4
grievances
PRELIMINARY ISSUE
The union pointed to the fact that as a result of the employer's
failure to draw any distinction between the method of calculating overtime
for classified versus unclassified work, Northcott and Ostman received
overtime pay for all of their hours in excess of 37-1/4 Mr Gilbert
pointed out that all six grievances were filed around the same time and
raised the same claim The union agreed to proceed only with the Northcott
and Ostman grievances expecting that the Board's decision would be used by
the parties to resolve the other 4 grievances He argued that if these 4
--
4
grievors are not paid overtime on the same basis as the first two grievors,
that would result in unfairness and consequently create morale problems in
the workplace He submitted that unless the Board forces the employer to
apply the Northcott/Ostman result to the remaining 4 grievors, it would
discourage the practice of litigating representative grievances and
applying the result to resolve other similar grievances It would result
in litigation of every grievance
Mr Gilbert argued further that by not raising the argument in the
Northcott/Ostman hearing, the employer had waived its right to make that
argument It was submitted that the employer had further waived its rights
.
by not raising this argument during the grievance procedure Counsel also
made passing reference to estoppel and res judicata
The employer emphasized that what the Board had before it were
individual grievances by 6 grievors The employer had not made any
representation or undertaking that it would apply the Board's decision in
Northcott/Ostman to any of the other grievances Those were adjourned sine
die and had now come on for hearing The employer should not, in these
circumstances, be precluded from asserting a right under the collective
agreement with regard to these grievances merely because it had not done
so in the two earlier grievances
Although no evidence was led in support, there is no reason to doubt
Mr Gilbert's assertion that, as union representative, he expected that
once the Northcott/Ostman decision was obtained, the parties would be able
to resolve the other 4 grievances on the same basis That indeed would
have been a logical and reasonable expectation However, the Board cannot
5
help but conclude that it is not an expectation which can be enforced on
any of the grounds put forward by the union
Res Judicata cannot apply to these 4 grievances because they were not
heard by the Board On the contrary, they were expressly adjourned sine
die Estoppel cannot come into play because the union does not claim that
the employer made any representation, in writing or even verbally, that it
was agreeing to resolve these 4 grievances in accordance with the decision
in the first 2 grievances Nor has the union established any detrimental
reliance Similarly, waiver is a concept that the Board applies with
regard to procedural defects The employer here is raising a legal
.
argument with regard to a substantive right. A party is entitled to do so
at a hearing before the Board, whether or not such an argument had been
made during the grievance procedure
While the Board understands the union's argument that it is unfair
to deny these 4 grievors the same benefits as those given to Northcott and
Ostman, that does not empower the Board to preclude the employer from
asserting that under the collective agreement it had no obligation to pay
overtime to those Grievor's for certain type of work Therefore that issue
must be determined on its merits
MERITS
The employer's basic position is that under the terms of the
collective agreement read together with the Public Service Act, the rules
for determining overtime pay entitlement are different for unclassified
employees than for classified employees Based on that argument, it is
contended that these 4 grievors are entitled to overtime, for work
.,.
6
performed in an unclassified position, only if they worked in excess of the
normal hours specified in the applicable unclassified contract, i e 40
hours per week Appointments to Unclassified Staff Group 3 Seasonal
contracts ("unclassified contracts") for each of the grievors were filed.
Each contract specifies that "The hours of work will normally be 40 hours
per week" (One says "8 hours per day")
In addition the parties relied on the fOllowing provisions
Public Service Act
1 In this Act,
"civil servant" means a person appointed
to. the service of the Crown by the
Lieutenant Governor in Council on the
certificate of the Commission or by the
Commission, and "civil service" has a
corresponding meaning;
"classified service" means the part of
the public service to which civil
servants are appointed;
"unclassified service" means the part of
the public service that is composed of
positions to which persons are appointed
by a minister under this Act
8 1 (1) An individual is not considered to be a civil
servant unless he or she has been expressly appointed
as such by the Commission or by the Lieutenant
Governor in Council on the certificate of the
Commission
7
Regulation 977 under The Public Service Act
1 (1) In this Regulation,
"regularly scheduled hours of work", in the case of a
full-time employee, means the hours of work per week
prescribed for a classification by subsection 9 (1)
and, in the case of a part-time employee to whom
clause 9 (4 ) (a) applies, means the hours or, in the
case of a part-time employee to whom clause 9 (4) (b)
applies, means the number of full days in four
consecutive weeks specified for the position
6 (1) The unclassified service consists of employees
who are employed under individual contracts in which
the terms of employment are set out and is divided
into,
.
(c) Group 3 consisting of employees appointed
on a seasonal basis for period of least
eight consecutive wee ks but less than
twelve consecutive months to an annually
recurring position where the contract
provides that the employee is to work
either 36-1/4 hours per week or 40 hours
per week;
9 (1) The hours of work per week which shall be
performed by civil servants of the classifications set
out,
(a) in Schedule 3, shall be 36-1/4 hours;
(b) in Schedule 4, shall be 40 hours;
(c) in Schedule 5, shall vary in accordance
with the requirements of the position but
shall not be less than 36-1/4 or greater
than 40 hours; and
8
(d) in Schedule 6, shall vary in accordance
with the requirements of the
classification but shall not be less than
36-1/4 hours
Collective Agreement
3 1 The only terms of this Agreement that
apply to employees who are not civil
servants are those that are set out in
this Article
3 2 Sections 3 3 to 3 16 apply only to
unclassified staff other than seasonal
employees
3 17 sections 3 18 to 3 37 apply only to
seasonal employees
3 16 A seasonal employee is an employee
appointed for a period of at least
eight (8 ) consecutive weeks to an
annually recurring full-time position
in the unclassified service in a
ministry For purposes of this
definition full-time means a minimum
of thirty six and one quarter (36-1/4)
or forty (40) hours per week, as
applicable
3 23 2 In this section "overtime" means an
authorized period of work calculated
to the nearest half-hour and performed
on a scheduled working day in addition
to the regular working period or
performed on a scheduled day(s) off
3 37 The following articles shall also
apply to seasonal employees Articles
A 1, 4 1, 4 4, 6, 9, 11, 12, 15, 16,
17, 18 5, 21, 22, 23, 27, 29, 32, 33,
34,35, 36 nd 86
9
It is common ground that these 4 grievors were seasonal employees
The dispute relates to their entitlement for overtime for work performed
in unclassified positions The union claims overtime for hours in excess
of 36-1/4 per week The employer contends that since by their contracts
their normal weekly hours were specified to be 40 hours, no overtime was
payable because they did not work in excess of 40 hour per week
DECISION
The parties urge very different conclusions based on the applicable
provisions of the Act, the regulations and the collective agreement
Having carefully considered he respective submissions I have concluded that
.
the appropriate interpretations are as follows
There is no dispute that unclassified employees are not civil
servants and are not part of the civil service section 6 (1) of the
Regulations does two things First, it defines the unclassified service
as consisting of "employees who are employed under individual contracts in
which the terms of employment are set out" Second, it divides the
unclassified service into 4 groups and defines each group. The grievors
were appointed to group 3 of the unclassified service, which according to
S 6 (1) (c) means that they work "either 36-1/4 hours per week or 40 hours
per week"
The collective agreement draws a clear distinction between the terms
and conditions of employment of classified employees and that of
unclassified employees Article 3 1 states that the only terms of the
agreement that apply to employees who are not civil servants (classified
employees) are those in article 3 Moreover, the collective agreement
~o
draws a distinction between seasonal employees and other unclassified
employees Not all of article 3 applies to unclassified seasonal
employees Only articles 3 18 to 3 37 and the articles specifically set
out in article 3 37 apply to them
Article 3 23 contains the provisions relating to overtime that govern
seasonal employees Article 3 23 2 in part defines "overtime" as "an
authorized period of work performed on a scheduled working day in
addition to the regular working period" (Emphasis added)
The answer to the dispute hinges on whether, the four grievors, when
.
they worked 40 hours per week under a group 3 seasonal unclassified
contract, worked any hours in addition to their "regular working period"
That in turn raises the question, what was their "regular working period"?
The collective agreement contains a number of provisions relating to
overtime in article 13 However, that is not one of the articles that
apply to seasonal unclassified employees
Regulation S 9(1) sets out the hours of work per week for the
classifications in the various schedules However, that provision is
explicitly limited to hours of work performed by civil servants, which the
grievors were not when employed as unclassified seasonal employees
The provision in the Regulations that does address the issue of hours
of work of unclassified seasonal employees is S 6(1)(C) which provides
that Group 3 employees appointed on a seasonal basis, (which these grievors
11
were) work under a contract which "provides that the employee is to work
either 36-1/4 hours per week or 40 hours per week"
In turn, the collective agreement defines the hours of work of a
full-time unclassified seasonal employee as meaning " a minimum of thirty
six and one quarter (36-1/4) or forty (40) hours per week, as applicable"
(Emphasis added)
The Board does not accept the union's argument that the phrase "as
applicable" in article 3 18 is a reference to a corresponding schedule in
S 9 (1) of the Regulations As noted, S 9(1) is explicitly limited in
. by definition,
application to civil servants Seasonal employees, are not
civil servants If the parties intended in a provision dealing
specifically with seasonal employees to cross reference to a provision of
the Regulation which clearly did not apply to seasonal employees, they
would have done so in much clearer and explicit language
On the other hand, there is a more logical and rational explanation
for the use of the phrase "as applicable" In the Board view, that phrase
is a direct reference to the hours of work of seasonal employees set out
in S 6 (1) (e) of the Regulations That section recognizes that a contract
for a Group 3 seasonal employee may provide for either 36-1/4 hour per week
~ 40 hours per week In the Board's view, the reference in article 3 18
to "a minimum of 36-1/4 or 40 hours per week, as applicable" is a reference
to the two types of contracts recognized in S 6(1) (C) of the Regulations
The outcome of all of the foregoing is as follows Under article
3 23 2 seasonal employees are entitled to overtime only for work performed
12
on a scheduled working day "in addition to the regular working periodu
The regular working period of a seasonal employee in accordance with
article 3 18 depends on whether the particular employee was appointed to
a contract specifying 36-1/4 hours per week or 40 hours per week An
employee is entitled to overtime pay on a scheduled working day only for
hours worked in addition to the regular working period as specified in his
or her own contract
In the case at hand, the grievors' contracts explicitly specified the
normal hours to 40 a week That would be their regular working period
If, while working under these contracts, the grievors did not work beyond
.
40 hours per week, they would not be entitled to overtime
Because no evidence was led, it is not clear to the Board what exact
hours were performed by each grievor and which of those hours were
performed under Group 3 seasonal unclassified contracts It is hoped that
the parties would be able to agree upon the entitlements to overtime if
any, of each grievor, in accordance with his decision However, if any
disputes should arise, the Board remains seized in order to deal with them
Dated this9thday of December, 1997 at Hamilton, ontario
~~~~J:
"-- "/
N Dissanaya~
Vice-Chairperson