HomeMy WebLinkAbout1994-1063MARCHIO97_01_02
ONTARIO EMPL aYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE CpMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (476) 326- 388
780 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELf~COPIE 1,116) 326-1396
GSB # 1063/94, 1661/94
OPSEU # 94E189, 94E588
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Marchio)
Grievor
- and -
The Crown in Right of ontario
(Ministry of the Solicitor General &
Correctional Services)
Employer
BEFORE H Finley Vice-Chairperson
FOR THE L Yearwood
GRIEVOR Grievance Officer
ontario Public service Employees Union
FOR THE M Mously
EMPLOYER Grievance Administration Officer
Ministry of the Solicitor General &
Correctional Services
HEARING October 25, 1995
DECISION
Bernard MarchIO a CorrectIOnal Officer 2 at the NIagara DetentIOn Centre has grIeved that
Management has violated the collective agreement by not balancing [his] hours
of work when changing from one schedule to another schedule
Mr MarchIO does not dIspute whether or not the balancIng took place, but rather, the results of
the balancIng. He further claims, accordIng to Lester Yearwood, the Umon's representatIve, that
It IS the Employer's responsibIhty not to schedule hIm to work more that 40 hours per week and
that he should not have been scheduled to work a hundred hours In two weeks With the
approval of hIS Employer, the GrIevor used 16 hours from hIS credits and 8 hours of unpaid
leave under the Social Contract In order to free hImself from workIng on August 27th and August
28th, thereby offsettIng the extended work assIgnment. He beheves that It should not have been
necessary for hIm to use these credIts He IS also askIng for payment at the overtIme rate of 1 Y2
for hours worked over 40 hours per week. The Umon acknowledges that Mr MarchIo was
scheduled for 2 days off In the week of August 22nd and 2 days off In the week of August 26th.
The follOWIng SectIOns of The Crown Employees Collective Bargaining Act and ArtIcles of
the CollectIve Agreement are relevant to thIS SItuatIOn,
The Crown Employees Collective Bargaining Act s. 18 1 sets out the functIOn of the
employer
18.--(1) Every collective agreement shall be deemed to provide that it is the exclusive function of
the employer to manage, which function, without limiting the generality of the foregoing, includes
the right to determine,
(a) employment, appointment, complement, organization,
assignment, discipline, dismissal, suspension, work methods
and procedures, kinds and locations of equipment and
classification of positions. and
(b) merit system, training and development, appraisal and
superannuation, the governing principles of which are subject
to review by the employer with the bargaining agent,
and such matters will not be the subject of collective bargaining nor come WIth the jurisdiction of
a board.
1
Accordmg to the CollectIve Agreement which was In effect at the tIme of the alleged VIOlatIOn
(January 31, 1992 to December 31 1993 extended), CorrectIOnal Officers are Schedule II
employees whose hours of work schedule IS 4- 7 as set out In ArtIcle 7 2
The normal hours of work for employees on these schedules shall be forty (40)
hours per week and eight (8) hours per day
TheIr entItlement to days off IS set out In ArtIcle 8
ARTICLE 8 - DAYS OFF
8 1 There shall be two (2) consecutive days off which shall be
referred to as scheduled days off, except that days off may be
non-consecutive if agreed upon between the employee and the
ministry
ArtIcle 9 addresses the sItuatIOn of ShIftS WhICh take in more than a sIngle calendar day'
ARTICLE 9 - SCHEDULED TOUR OF DUTY OR SHIFT
9 1 A shift which does not commence and end on the same
calendar day shall be considered as falling wholly within the
calendar day on which the shift commences.
CertaIn parameters respectIng ShIft schedules are dealt WIth In ArtIcle 10
ARTICLE 10 - SHIFT SCHEDULES
10 1 Shift schedules shall be posted not less than fifteen (15) days in
advance and there shall be no change in the schedule after it has been
posted unless notice is given to the employee one hundred and
twenty hours (120) in advance of the starting time of the shift as
originally scheduled. If the employee concerned is not notified one
hundred and twenty (120) hours in advance he shall be paid time and
one-half (I 1/2) for the first eight (8) hours worked on the changed
shift provided that no premium shall be paid where the change of
schedule is caused by events beyond the ministry s control.
10.2 Every reasonable effort shall be made to avoid scheduling the
commencement of a shift within twelve (12) hours of the
completion of the employee's prevIOus shift provided
however, that if an employee is required to work before
twelve (12) hours have elapsed he shall be paid at time and
one-half (1 1/2) for those hours that fall within the twelve (12)
hour period. It is understood that the term shift" does not
include any period of time in respect of which an employee IS
entitled to overtime payments or compensating leave in
accordance with Article 13 (Overtime) or Article 14 (Call-
Back)
2
10.3 A shift may be changed without premium or penalty if agreed
upon between the employee and the minIstry
104 It IS the intent of the parties that there shall be no split shifts
provided however that in circumstances where split shifts are
currently In existence reasonable efforts shall be made to
eliminate the split shifts.
10.5 The current practice of giving notice of shift schedules in advance
under existing agreements where notice is in excess of fifteen (15)
days shall be maintained.
MIke Mously, the Employer's representatIve, stated that the Gnevor IS paId for the hours he
works, and the hours worked and the pay received should "match up" Mr MarchIO receIves a
cheque every two weeks, based on 80 hours for 2 weeks and that IS a constant. When the Gnevor
IS not subject to the Compressed Work Week Schedule, he works 40 hours each week and IS paId
for 80 hours' work, every 2 weeks. Mr Mously explaIned that under the Compressed Work
Week, employees work longer ShIftS to have more tIme away from the workplace, and there IS,
accordIngly, no restnctIOn to 40 hours per week, nor to 8 hours a day Under thIS agreement,
an employee IS stIll workmg the number of hours for which he/she IS receiVIng pay, that IS, 40
hours per week. Mr Mously stated that It IS the Employer's pOSItIOn that It has scheduled Mr
MarchIo WIthIn the parameters of the Collective Agreement and that the Gnevor has no claim for
credIts or for overtIme pay under tIme under the CollectIve Agreement.
Mr Yearwood and Mr Mously prepared the follOWIng statement of agreed facts In advance of
the hearIng and sIgned It on the date of the hearIng. CertaIn amendments were agreed to and
they are reflected below'
I The grievor is employed as a Correctional Officer at the Niagara Detention
Centre and has been so employed Since July 11, 1972.
2 At the Niagara Detention Centre, the Umon and the Employer have in place a
Compressed Work Week Agreement which provides twelve (12) hour and eight
(8) hour shifts for its Correctional Officers.
3 In the penod up to and including August 28, 1994, the grievor was on a rotating
schedule which combined both twelve (12) and eight (8) hour shifts. The hours
worked per week on this particular schedule vary from zero (0) hours to sixty
3
(60) hours. In any case, by working the full rotation, Correctional Officers will
work an average offorty (40) hours per week whIch is the requirement of their
position Attached as Appendix A is a copy of this particular schedule reflectIng
the grievor's scheduled shifts for the period August 15 1994 to August 28
1994
4 In July 1994 the grievor was re-assigned to a schedule ( Utility Schedule)
which provided for strictly eight (8) hour shifts. As a result, a Correctional
Officer working the Utility Schedule is scheduled to work forty (40) hours per
week, every week. The re-assignment was to take effect on August 29, 1994
and was in response to the grievor's request for workplace accommodation
based on his having diabetes mellitus. Attached as Appendix B is a copy of the
UtIlity Schedule reflecting the grievor's scheduled shifts for the period August
29 1992 to September 18, 1995
5 As a result of the change in schedule, the grievor was assigned to the following
shifts for the period August 22, 1994 to September 4, 1994
MON TUE WED THU FRl SAT SUN
August 22-28 3 3 0 0 3 3 3
August 29 - September 4 2 2 2 2 2 0 0
0 Regular Day Off
2 1445 to 2315 hrs. (8 hours)
3 1900 to 1700 hrs. (12 hours)
While the schedule reflects that the grievor was to work night shifts (1900 to
0700 hrs.) for the period August 26 to August 28, he was, in fact, assigned to
day shifts (0700 to 1900 hrs.) for that period. This was in response for his need
for accommodation.
7 The reassignment of the grievor prior to the end of the rotation required a
balancing of hours. The balancing of hours requires a calculation to determine
whether the employee has worked.
I An average offorty (40) hours per week for the period on the compressed
work week; or 2. An average of less than forty (40) hours per week for the
period of the compressed work week; or 3 An average of more than forty (40)
hours per week for the period on the compressed work week. In the event that
situation 2 applies, the employee would be required to work addItional hours or
forfeit attendance credits in order to achieve an average of forty (40) hours per
week. In the event that situation 3 applies, the employee would receive
additional attendance credits to reflect the number of hours worked in excess of
the hours required. Situation I Requires no action.
8 In the grievor's reassignment in August 1994 it was determined that the grievor
had worked sixteen (16) hours in excess of the hours required and these hours
4
were added to the grievor's attendance credits. Attached as AppendIx C are the
Employer s calculations regarding the balancing of hours.
9 The grievor requested time off for his shifts on August 27 and 28, 1994 To
cover his absence, the grievor asked that the sixteen (16) hours referred to in
paragraph 8 be used as well as an additional eight (8) hours of UnpaId Leave
provided for by the Social Contract. Attached as Appendix 0 is a copy of the
grievor's request. The request was granted by the Employer
No eVIdence was called, and explanatIOn and argument were presented wIth the exceptIOn of
submIssIOns on JUrIsprudence It was agreed that these would be made In the form of wntten
submIssIons and thIS was done The follOWIng addItIOnal InfOrmatIOn was presented at the
heanng by Mr Yearwood and Mr Mously and IS not In dIspute
The Compressed Work Week Agreement apphes to all CorrectIOnal Officers at the Niagara
DetentIOn Centre which means that employees on the Compressed Work Week Schedule and
employees on the UtIlity Schedule, are all subject to the Compressed Work Week Agreement.
Two schedules from the Niagara DetentIOn Centre were submitted in evidence the RotatIng
Schedule from August 15, 1994, to August 28, 1994, and the UtIhty Schedule from August 15,
1994, to September 18, 1994 The Compressed Work Week Schedule IS a fixed, rotatIng
schedule from Mondays to Sundays WIth 50 slots as 50 staff persons are covered. It contaInS
aSSIgnments to mInImUm, maXImum and utIhty of 50 employees. It is a mIxture of 12 hour and
8 hour ShIftS and contaInS weeks WIth zero hours, 24 hours, 32 hours and 60 hours. The majority
of CorrectIOnal Officers are on thIS schedule AccordIng to Mr Mously, there IS no stIpulatIOn
In the Compressed Work Week Agreement or In the CollectIve Agreement settIng out the
maXImum number of ShIftS whIch can be worked Employees are slotted Into a pOSItIOn on
thIS schedule as reqUired and then move up one slot each week. It does not matter, accordIng to
Mr Mously, whIch lIne you start on. Once an employee has gone through a complete 50-week
rotatIOn, he or she should have completed 2000 hours, that IS, 40 hours x 50 weeks The pattern
of the schedule for Mr MarchIO was alternatIng weeks of 24 and 60 hours When an employee
comes off the Compressed Work Week Schedule, a balanCIng process IS undertaken to determIne
If the total number of hours worked, reflects the average of 40 hours per week. If the employee
5
has worked more than 40 hours per week, the Employer must reImburse tIme If the employee
has worked fewer hours than an average of 40 hours per week, then the employee has to make up
the hours, SInce he or she WIll have been already been paId.
On the UtIhty Schedule, an employee works 40 hours each week, wIth the normal, regular days
off beIng Saturday and Sunday One can conclude from the UtIhty Schedule submItted In
eVIdence that IndIVIduals who are on that schedule work occasIOnal Saturdays and Sundays The
UtIhty Schedule contaInS assIgnments to utIhty dutIes of 5 employees. There are 4 dIfferent
ShIftS on the UtIhty Schedule each of WhICh IS 8 Y2 hours In duratIOn. The Y2 hour relates to the
unpaid lunch penod. There IS no issue of balanCIng on thIS schedule SInce the hours are, in
effect, balanced at the end of each week.
The Gnevor began to work on the Compressed Week Work Schedule March 6, 1992, and at that
pOInt hIS schedule was balanced, FollOWIng two 50-week cycles on this schedule, Mr MarchIO'S
hours were once agaIn balanced, thIS time on February 7, 1994 He contInued working on the
schedule untIl August 28, 1994, and In a projected balancing of 29 weeks on July 6, 1994, hIS
hours were balanced startIng the week of February 7, 1994, to the week begmnIng August 22,
1994, that is, to August 28th. AccordIng to the Employer's memorandum he worked 1176
hours during that penod, and was paId for 1160 hours. The balancing then gave the follOWIng
result
In conclusion, on Aug 29/94 the schedule
owes you 16 hours of compensating time.
On thIS same day Mr MarchIO moved to the UtIhty Schedule, the regular 40-hour-per week, 8-
hour -per-day schedule, and had from the balanCIng of hIS Compressed Work Week Schedule, 16
credIt hours WhICh would allow hIm to take tIme off In future Mr MarchIO's assIgnment to the
UtIht) Schedule, accordIng to Mr Mously, was based on the recogmtIOn that Mr MarchIO'S
medIcal condItIon would best be served by so dOIng, and the startmg pOInt schedule was the one
whIch was aVailable when he was due to ShIft.
6
AssumIng that Mr MarchIO worked all the ShIftS noted on the schedule, and there was no
eVIdence to IndIcate that he had not done so The eVIdence submItted In AppendIces A and B
show the follOWIng hours assIgned and worked
From - To Number Duration Hours Hours
Shifts Shifts Assigned Worked
Assigned Assigned
August 15 to August 21 2 ShIftS @ 12 24 24
August 22 to August 28 5 ShIftS @ 12 60 36 (24)*
August 29 to September 4 5 ShIftS @ 8 40 40
September 5 to September 11 5 ShIftS @ 8 40 40
September 11 to September 18 5 ShIftS @ 8 40 40
*CredIt and unpaId Social Contract leave hours
Over the 5-week penod, Mr MarchIO was assIgned to work a total of 22 ShIftS, an average of 4 5
ShIftS per week. Dunng that same penod he was assIgned to work a total of 180 hours, an
average of 36 hours per week. During the penod from August 15 to September 18, Mr
MarchIO was assIgned and worked the follOWIng number of hours of ShIftS on consecutIve days
From - To Shifts hours Shift hours
Assigned on Worked on
Consecutive Days Consecutive Days
per week per week
August 15 to August 21 12+12 12+12
August 22 to August 28 12+ 12 and 12+ 12+ 12 12+12 and (12)* + (12)* +12
August 29 to September 4 8+8+8+8+8 8+8+8+8+8
September 5 to September 11 8+8+8 and 8+8 8+8+8 and 8+8
September 12 to September 18 8+8+8 and 8+8 8+8+8 and 8+8
*CredIt and unpaid SocIal Contract leave hours
7
The change-over weeks (August 22 to 28 and August 29 to September 4), Mr MarchIO was
scheduled to work. the follOWIng times and had the follOWIng hours off between ShIftS
Date Times Hours on Hours off
August 22nd (M) 1900 to 0700 (23rd) 12
12
August 23rd (T) 1900 to 0700 (24th) 12
August 24th (W) Regular Day Off
August 25th (Th) Regular Day Off } 48
August 26th (F) 0700 to 1900 (26th) 12
12
August 27th (S) 0700 to 1900 (27th) (12)
(Taken oft) 12
August 28th (S) 0700 to 1900 (28th) (12)
(Taken oft) 1975
August 29th (M) 1445 to 2315*(29th) 8
155
August 30th (T) 1445 to 2315 (30th) 8
15.5
August 31st (W) 1445 to 2315 (31st) 8
15 5
September 1 st (Th) 1445 to 2315 (1st) 8
15 5
September 2nd (F) 1445 to 2315 (2nd) 8
September 3rd (S) Regular Day Off }
September 4th (S) Regular Day Off 555
(September 5th (M) 0645 to 1515 (5th) 8
*The half hour balances off wIth the 30 mInute unpaid lunch.
The above analysIs looks at time worked and time off accordIng to the weekly schedule
framework and demonstrates that Mr MarchIo had 5 days off dUrIng the first week and 2 days
off each week thereafter However, when one looks at the same perIod, wIthout the weekly
dIvlSlons, longer perIods of consecutive days emerge A reVIew of consecutIve days worked and
8
consecutIve days off wIthout the applIcatIOn of the weekly schedule shows that Mr MarchIO
worked 2 consecutive days on 3 occaSIOns dUrIng thIS perIod, 3 consecutIve days on 1 occaSIOn,
5 consecutIve days on 1 occaSIOn and 8 consecutIve days on one occaSIOn. DUrIng that same
perIod he had 3 consecutIve days off on one occaSIOn and two consecutIve days off on 5
occaSIOns
Mr MarchIO falls Into the category of employees who work 40 hours per week (ArtIcle 7.2) It IS
clear from the scheduhng framework that the partIes at the Niagara DetentIOn Centre have a work
week that commences on Monday, the first ShIft begInmng at 0700 hours. It follows, therefore,
that technIcally speakIng, the work week ends on Monday at 0659 hours. However, for the
convenIence of schedulIng, the partIes accept that shifts frequently begIn on one day and finIsh
on another, and that Monday IS the InItIal day of the work week, and Sunday the final day of the
work week. As well, ARTICLE 9 - SCHEDULED TOUR OF DUTY OF SHIFT clarIfies
that
9 1 A shift which does not commence and end on the same calendar day shall be
considered as falling wholly within the calendar day on which the shift
commences.
As part of then submISSIons the partIes presented the follOWIng GrIevance Settlement Board
cases
THE EMPLOYER
OPSEU (Fabian, Rutherford, Reece, Procunier and Couture) and The Crown in Right
of Ontario (Ministry of Transportation and Communications) Apnl, 1987, (SprIngate)
GSB 0320/85 0322-0331/85 and 1064/85
In thIS case, the Gnevors alleged that they were Improperly denIed overtIme pay
They had worked 40 hours weekly, Monday to Fnday, for a number of years untIl
a new schedule was Introduced WhICh reqUired them to work a Saturday from tIme
to tIme on a rotatIOnal baSIS, WIth Monday replaCIng Saturday as one of the two
consecutIve days off Nevertheless, when the GrIevors worked on the Saturday,
they would work 6 days In a row The UnIon submItted that the GrIevors were
entItled to be paid overtIme for theIr Saturday work pursuant to ArtIcle 7 and
9
argued that the case was dIstIngUIshable on the facts from other sImIlar cases In
whIch the GrIevance Settlement Board had ruled that there was no entItlement,
although the Board faund that the reasonIng In the other cases was applIcable In
the result, the Board found that
The collective agreement stipulates the normal hours of work
in a day and in a week and also requires that employees
receive two consecutive days off in every work week.
Neither [grievor] was assigned to work longer than the normal
work day or work week, and both received two consecutive
days offwithm the relevant work weeks. No breach of the
collective agreement has been made out.
OPSEU (Speers, Gall and McAlonen) and The Crown in Right of Ontario (Ministry of
Education) September 1987 (Kennedy) GSB 1461-1463/85
The Gnevors In this case, have modIfied normal hours of work and ShIft schedule
proVIsIOns set out In the CollectIve Agreement. They work from September to
June and dunng that tIme work are scheduled to work theIr full annual
complement. Included in this is the following:
(b) All hours worked on a day that is not a regular working day for the
employee will be treated as overtime and based on the rate he was
receiving when the overtime was worked.
Staff coverage was 24 hours a day, seven days a week, WIth reduced staffing on
Saturdays and Sundays. The GrIevors came off duty at 0900 hours and would
normally have been off untIl the follOWIng day at 1130 hours, except for the
reqUIrement that they attend an out-of-town profeSSIOnal development workshop
whIch was a reqUIrement for them as IndIVIduals to retaIn theIr certIficatIOn. On
that day they boarded the bus shortly after 0900 hours and return at 2300 hours.
The Board found that It was not possible for the Employer to Include the
workshop In the master schedule, and that the reqUIrement of notIficatIOn of
change to the master schedule was proper under the CollectIve Agreement "to
make November 20th a regular workIng day for these GrIevors" It went on to
comment as follows
Any change in the master schedule as originally drafted, whether initiated by the
Employer or by an employee, would result in an employee working on what the
Union would define as 'not a regular working day" That would virtually
prevent any scheduling changes without attracting premium pay and could not
be what the parties reasonably contemplated when draftmg the collective
agreement. The reality for employees who are in what amounts to a seven-day-
a-week operation is that any day can be a regular working day depending on the
10
schedule To attract premium pay there must be a particular provision of the
collective agreement that grants it, such as the provision for double tIme for
working an Article 48 holidav If the schedule is properly changed within the
constraints of the collective agreement, the newly scheduled day becomes a
regular working day
In any event, adding the day to the schedule for these Grievors would not
necessarily cause a breach of any of the three general rules referred to by
counsel for the Union That would not of itself constitute any constraint on the
Employer's scheduling rights. If however the ultimate effect of the additional
scheduled day of work is that the total accumulated hours at a later date exceed
the annual requirement an overtime entitlement will arise at that time.
OPSEU (Jenkins, Randall, and Rombough) and The Crown in Right of Ontario
(Ministry of Transportation), June 1989, (Forbes-Roberts) GSB 1065/87,
1066/87
In thIS case, the Gnevors moved from Monday to Fnday ShIftS wIth an occasIOnal
Saturday, to seven-day coverage so that "[a]n IndIVIdual gnevor's "weekend" could occur
anywhere durIng a seven (7) day perIod" The Umon submItted that when conSIderIng
"hours per week" III ArtIcle 7 3 of the CollectIve Agreement, "week" IS synonymous WIth
calendar week and a calendar week IS from Saturday to Fnday It follows, the Umon
argued, that follOWIng 5 consecutIve ShIfts, the gnevors must be gIven 2 consecutIve
days off or be paId overtIme The Employer took the positIOn that "bamng a speCIfic
modifier" "week means a 7 -day penod and "the Employer IS free to set any day as the
first of the seven day cycle" The Employer maIntained that the "number of consecutIve
days worked IS Irrelevant as long as [at] the completIOn of a seven (7) day schedule an
employee has had two (2) consecutIve days off. The Board followed the reasonIng In
Fabian, supra, WhICh Included a quotatIOn from an earlier Gnevance Settlement Board
case, Barnfield, (Swan) 67/76) WhICh conSIdered and rejected the submISSIOn on behalf
of a grIevor workIng rotatIng ShIftS resultIng In hIS workIng on occaSIOn, 6 or 7 days at a
stretch, and contendIng that he was entItled to 2 days off after every 5 consecutIve days
worked. The UnIon s argument was rejected and the ratIOnale for thIS rejectIOn was In
part, as follows
As we read articles 7.2 and 9 1 there are three specific requirements set out
beyond which management initiative to schedule work is untrammeled [sic]
(1) There must be no more than forty hours scheduled per week.
(2) There must be no more than eight hours scheduled per day
(3) There must be two consecutive days off (per week, if we adopt the
union s argument for the sake of this analysis).
The Board then tested whether or not the Employer had met the reqUirements and concluded as
follows
I}
by merely designating a different day of the week as the starting day for each
of the four employees (or groups of employees required to staff this rotating
schedule, the employer will be seen to have met, in respect of each employee or
group, the requirements of the collective agreement.
the collective agreement does not specify the days of the week on which work
is to be performed, does not specify that there must be five working days (but
only that days off be consecutive) and does not prohibit the days off in one
week from being contiguous with those in the next.
the shift schedule on which the grievor has been working. is not in breach of
the collective agreement.
That same Board found that
Meaningful reference can also be made to EalconbridgeJ:'.j~
Egan and Sudbury Mme~ill & SmeJ.teLW0r.k.er5- Union,-Local 598 83, CLLC
para 14,041 wherein the Ontario Court of Appeal held that employees who
worked seven consecutive days were not entitled to overtime under the
Employment Stands Act where the days in question were partly in one work
week and partly in another and no overtime was worked within either of the two
weeks worked.
THE UNION
OPSEU (Anderson) and The Crown in Right of Ontario (Ministry of
Correctional Services), October 1991, (Watters) GSB 3005/90
In thIS case the Board noted the Employer's "nght to assIgn and schedule an employee's hours of
work" as it IS set out In the Crown Employees' Collective Bargaining Act s. 18 1 and ItS
subsequent fetterIng in ArtIcles 7, 8 and 10 of the CollectIve Agreement between the partIes.
The Issue before that Board was defined as
whether the right to assign and schedule work is further fettered by an implied
duty on the Employer to administer the collective agreement in a reasonable
manner
And the Board came to the conclusIOn that the questIOn must be answered In the affirmatIve after
the deCISIOn ofthe Court of Appeal In Metropolitan Toronto Civic Employees' Union, Local 43
v The Municipality of Metropolitan Toronto (1990), 74 O.R. (2d) 241 (Ont. C.A.) It went on
to explaIn that
After considering the case of Greenberg v Mettert (1985), 50 O.R. (2d) 755
(Ont. C.A. ), which held that a discretionary clause in an employment contract
had to be reasonably exercised, Mr Justice Tamopolsky concluded.
Like the analogy with respect to standing, it is difficult to
12
apply this case in the context of collective bargaining.
Nonetheless, it is true that a collective agreement is an
intricate contract, which attempts to reflect the outcome of
bargaining on a myriad of issues. It is also true that parties
intent on reaching a settlement do not always have the tllne,
the incentive or the resources to consider the full
implications of each and every phrase There is, therefore, a
place for some creativity, some recourse to arbitral principles,
and some overall notion of reasonableness. See, for example,
David M Beatty, "The Role of the Arbitrator' A Liberal
Version" (1984), 34 U T LJ 136 The presence of an implied
principle or term of reasonable contract administration was
also acknowledged by Craig J In Wllrdair, supra, at pp 476-77
OR."
(page 259)
The Board then went on to find that "the Umon [had] demonstrated a pnma facie case of
unreasonableness on the part of the Employer" when It changed the status quo It dId, however,
end wIth the following cautIOn.
This decision should not be read as limiting the general right of the Employer to change an
employee's schedule. Our conclusion flows from the unique set offacts placed before us in this
case. As stated above, the Board agrees that the Employer has the right to assign and schedule
hours of work. Our ultimate conclusion here is that such right was not reasonably applied.
In Its argument, the Union asked that the Gnevor be compensated for all credIts used and
submItted that
the Employer should at most if not at all times be guided by good sense The scheduling of
shifts in particular, and the changing of shift and schedules should be achieved in a manner as to
make the transition as gradual and accommodating to the Employee. Obviously, this would
ensure a more alert and productive employee
and that when
the Employer is asking [me] to adopt the Jenkins/Randall/Rombough (GSB 1067/87 & 1066/87)
and Fabian et al (GSB 1064/85) decisions, is in fact asking [me] to be unreasonable.
For instance, the Employer is in effect saying that it would have been their unfettered right to
schedule the grievor off duty on Monday 22nd and Tuesday, 23 of August. The grievor would
then be scheduled to work the #3 shift from Wednesday August 24 and the #2 shift from August
29th to September 2 consecutively The grievor would then be afforded days off on September 3
and 4
13
Instead, the Umon asked that the rulIng of VIce Chair Watters on the Employer s change of work
day In Anderson (GSB 3005/90) be followed.
The Employer submItted that
-the Grievance Settlement Board has found that an employee's schedule may be changed and the
regular days off altered without attracting premium pay In the absence of evidence from the
Union that premium pay is warranted for some other reason, there has been no breach of the
Collective Agreement.
and In conclusIOn that
Since the Union has failed to identify Collective Agreement language on which to base their
claim of entitlement, the grievance should be dismissed.
DECISION
The followmg questIOns must be answered In arriVIng at a deCISIOn on the two Issues presented
to the Board.
. On the balanCIng of hIS hours, IS Mr MarchIO owed a further 8 hours over and
above the 16 hours acknowledged by the Employer at the tIme of the hearing?
. Has the Umon IdentIfied language In the CollectIve Agreement on WhICh to base a
claim for premium pay/overtime?
. Is there any JustIficatIOn for Mr MarchIO's overtIme claIm ariSIng from the
CollectIve Agreement?
. Are there restnctIOns In the CollectIve Agreement whIch fetter the Employer from
schedulIng Mr MarchIO to work on 8 consecutIve days, 100 hours WIthIn a 2-
week penod, or 76 hours WIthIn an 8-day consecutIve penod ?
. If there are no relevant restnctIOns fetterIng the Employer In the CollectIve
Agreement or If there are restrIctIons whIch when met stIll allow for the 8
consecutIve days, the 100 hours WIthIn 2 weeks and the 76 hours WIthIn 8 days,
should a test of reasonableness apply as In Anderson, supra?
14
In the balancing of his hours is Mr Marchio owed a further 8 hours over and above the 16
hours acknowledged by the Employer at the time of the hearing?
Mr MarchIO, follOWIng an accommodatIOn request was moved from the RotatIng Schedule to the
UtIhty Schedule and thIS move trIggered a balanCIng of hIS hours. ThIS had occurred prevIOusly
and the eVIdence shows that hIS hours were balanced on March 6, 1992, February 7,1994, and
as of August 28, 1994 The calculatIOn of the last balanCIng was, accordIng to the Employer,
that over a 40-hour-a-week 29-week perIod, Mr MarchIo should have worked 1160 hours and
he In fact worked 1176 hours. The Employer noted as follows
In conclusion, on Aug 29/94 the schedule owes you 16 hours
of compensating time.
It was Mr MarchIO's contentIOn that he IS owed 24 hours. It IS my understandIng that as of the
tIme of thIS deCIsion, the balanCIng of hours does not remain an Issue and therefore, whIle I have
set out the InfOrmatIOn WhICh was presented, I have concluded that It IS not necessary for me to
make a rulIng on this Issue.
Has the Union identified language in the Collective Agreement on which to base a claim for
premium pay/overtime?
The Umon has not pOInted to any such language In the CollectIve Agreement; nor has It provIded
a ratIOnale WhICh would support the vahdIty of such a claIm.
Is there any justification for Mr Marchio's overtime claim arising from the Collective
Agreement?
DurIng the change-over penod, Mr MarchIO was not engaged In an authonzed perIod of work
In addItIon to hIS regular workIng perIod, he dId not work on a scheduled day off, nor dId he
work on a statutory hohday dunng that tIme There IS, therefore, no JustIficatIOn for overtIme
arISIng from the 8-day schedulIng.
Are there an} restrictions in the Collective Agreement which fetter" the Employer from
scheduling Mr Marchio to work on 8 consecutive days, 100 hours within a 2-week period,
or 76 hours within an 8-day period?
The CollectIve Agreement, ArtIcle 7.2 states that a Schedule II employee whIch Mr MarchIO IS,
15
shall normally work 40 hours per week and 8 hours per day The fact the coverage at the N mgara
DetentIOn Centre IS 24 hours a day and 7 days a week and the schedule IS rotatIng means that
any day In the week can be a work day and any day can be a regular day off (Speers) The week
IS not defined In the Collective Agreement further than ItS baSIC meanIng of a perIod of 7 days
ThIs allows each work place the fleXIbIhty of estabhshIng ItS penod(s) of 7 days The rotatIng
schedule has been In place at the Niagara Detention Centre for some tIme and accepted by both
partIes, and the work week or scheduhng week In thIS case IS a Monday to Sunday week. The
week IS not any 7 -day perIod. ThIS means that the number of hours of work per week must be
conSIdered WIthIn the Monday to 5unday framework. Mr MarchIO'S final day of work on the
ComprehensIVe Work Week Schedule was Sunday, August 28th, hIS first day of work on the
UtIhty Schedule was Monday, August 29th. The first of these days fell In the week of August
22nd, the second, In the week of August 29th. Mr Marchio was assIgned to five 12-hour ShIftS
dUrIng the first week, and five 8-hour ShIftS dUrIng the second week. The 60 hours dUrIng the
first week are normal hours under the ComprehensIve Work Week Schedule. The 40 hours for a
week dUrIng the second week, are normal hours for a week under the UtIlIty Schedule. The 7-
day perIods fallIng between August 26th and September 2nd during whIch Mr MarchIo was
scheduled to work 76 hours and 8 consecutIve days do not fall Into the Monday to Sunday week
pattern but are spht between the two Monday-to-Sunday weeks. The Board In Re Jenkins et aI,
supra, noted that In Re Falconbridge Nickel Mines Ltd. , the Ontano Court of Appeal held that
employees who worked seven consecutive days were not entitled to overtime under the
Employment Standards Act where the days in question were partly in one work week and partly
in another and no overtime was worked within either of the two weeks worked.
The Umon made the pOInt that the Employer had scheduled Mr MarchIO to work 100 hours In a
two-week perIod, WhICh IS, In effect an average of 50 hours per week. ThIS arose from the fact
that Mr MarchIO'S final week on the ComprehensIve Work Week Schedule was a 60-hour week,
Had the change been effected follOWIng a 24-hour week of the ComprehensIve Work Schedule,
the total number of hours for the 2 weeks would have been 64 (24+40) rather than 100 But,
once agaIn, WIthIn the framework ofthe Monday to Sunday work week, the ComprehensIve
Work Week Schedule and the UtIhty Schedule no overtIme was worked durIng eIther week.
ArtIcle 8 of the Collective Agreement, states that there must be 2 consecutive days off scheduled
for an employee and that the only exceptIOn to thIS IS that the 2 days be non-consecutIve by
agreement. In other words, the two consecutive days off can be scheduled by the Employer at
anvtIme dunng the week or one day dUrIng each of two contIguous weeks Further, there IS no
restrIctIOn on schedulIng the two consecutIve days off In one week, contiguous WIth those In the
16
follOWIng, that IS, schedulmg the days off the last 2 days of one week and the first two of the
next.
The Employer scheduled Mr MarchIo's days for the first week on Wednesday, August 24th and
Thursday, August 25th, dUrIng hIS final week on the ComprehensIve Work Week Schedule and
on Saturday, September 3rd and Sunday, September 4th dunng hIS ImtIal week on the UtIhty
Schedule. The Employer dId, therefore, meet the ArtIcle 8 reqUirements of schedulIng Mr
MarchIO's days off durIng the change-over weeks
A further apphcable restnctIOn on the Employer In schedulIng IS found In ArtIcle 10.2 and relates
to the Employer makIng Its best effort to maintam a mImmum of 12 hours between the end of
one ShIft and the begmning of the next ShIft. From August 22nd to September 5th, the Employer
maIntaIned the follOWIng hours between shifts 12 hours on three occaSIOns, 15 5 hours on four
occaSIOns, 19 75 hours on one, 48 hours on one and finally 55 5 hours on one occasion. It IS
clear from thIS that the Employer met thIS scheduling restnctIOn.
When negotIatIng the CollectIve Agreement, the partIes could have placed a maXImum on the
number of consecutIVe shifts scheduled, over and above the two consecutIve days off
reqUIrement, but dId not do so, whether intentIOnally or through oversIght or through failure to
antIcIpate ItS occurrence It IS possible that not plaCIng the maXImum was a recogmtIOn of the
Employer's need for flexibIhty from workplace to workplace, or WIthIn specIfic workplaces,
The partIes dId however, set out the deSIrable mInImUm tIme between ShIftS The InclUSIOn of
the two-day consecutIve reqUirement and the deSIrable mImmum tIme between ShIftS IndIcates
that the partIes dId turn theIr mInds to the Issue of overly-concentrated schedulIng,
In summary the Employer In ItS schedulIng of Mr MarchIO dunng the perIod from August 22,
1994 to September 4, 1994, was not In breach of the relevant terms of the CollectIve Agreement.
17
If there are no relevant restrictions fettering the Employer in the Collective Agreement or
if there are restrictions which when met still allow for the 8 consecutive days, the 100 hours
within 2 weeks and 76 hours within 8 days, should a test of reasonableness apply as in
Anderson, supra?
Anderson, followed the OntarIO Court of Appeal ruhng In Canadian Union of Public
Employees, Metropolitan Toronto Civic Employees' Union, Local 43 v. Metropolitan Toronto
(Municipality) (1990), 74 0 R. (2d) 241 (Ont. e.A.) when It consIdered "whether the nght to
assIgn and schedule work IS further fettered by an ImplIed duty on the Employer to admInIster
the collectIve agreement In a reasonable manner" In that declSlon Mr Justice Tarnopolsky
stated that
There is, therefore, a place for some creativity, some recourse to arbitral
principles, and some overall notion of reasonableness. The presence of an
implied principle or term of reasonable contract administration was also
acknowledged by Craig, J in Wardair, supra, at pp. 476-77 O.R.
The maJonty of the Board In Anderson was "persuaded that the Umon [had] demonstrated a
prima facIe case of unreasonableness on the part of the Employer" and m view of the fact that
"the Employer elected agamst the calling of evidence" the Board was "not gIven any reason for
the change In the long standIng practIce WhIch has adversely affected thIS grIevor" It went on
to conclude that "[i]n the absence of an explanatIOn as to why there was a change In the status
quo" It was "prepared to hold that the Employer acted unreasonably" and ordered that "the
gnevor be returned to the day-tIme hours as worked pnor to January, 1991", cautIOnIng that the
"declSlon should not be read as lImItmg the general nght of the Employer to change an
employee s schedule"
The detennInatIOn of whether or not an Employer has admInIstered the collectIve agreement m a
reasonable manner Involves the arbItrator's expenence and Judgement, the arbItral context and
the CIrcumstances of the partIcular sItuatIOn. There wIll be some sItuatIOns WhIch most
arbItrators would find unreasonable under any cIrcumstances, there WIll be others that mIght be
found to be unreasonable under certaIn CIrcumstances. Further, there IS a range between
reasonableness and unreasonableness, and one does not need to find that an Employer has acted
extremeh unreasonably In order to conclude that It fmled to act reasonably
18
In general, the relevant cases and declSlons WhICh apply the standard of reasonableness use as
theIr startIng pOInt the premIse that there IS, In a collectIve agreement, "an Imphed prIncIple or
term of reasonable contract admInIstratIOn" Some of the sItuatIOns that have been consIdered
have been the apphcatIOn of rules wIth dIscIphnary consequences, refusal of requested
dIscretIOnary leave or requested vacatIOn time, and a change of practIce such as the ImposItIOn
of a rotatIng schedule where one had not previously eXIsted. In the case at hand, the Umon has
submItted that "the Employer should at most if not at all tImes be gUided by good sense" and
further, that "the changIng of ShIft (sic) and schedules should be achIeved In such a manner as to
make the transItIon as gradual and accommodatIng to the Employee" The Employer took the
posItIOn that It met the terms of the CollectIve Agreement durIng the change-over penod and that
any claim for "premIUm pay" must flow from the language of the CollectIVe Agreement and the
Umon has failed to IdentIfy such language. The Issue of reasonableness was not commented on
dIrectly by the Employer
The change ofMr MarchIo from the ComprehensIve Work Week Schedule to the UtIhty
Schedule was not a deciSIOn made arbItrarIly by the Employer It was made in response to the
GrIevor's request for accommodation due to an ongoing medIcal condItIon. A further change,
agaIn In response to the Gnevor's request for accommodatIOn for hIS medIcal condItIOn, was
made to hIS assIgned last 3 days on the ComprehensIve Work Week Schedule from mghts, to
WhICh he was assIgned as part of the fixed rotatIng schedule, to days. Had thIS change not been
requested and approved, Mr MarchIO would have found hImself workIng on Sunday, August
28th from 1900 to 0700 hours, and on August 29th from 1445 to 2315 hours. The tIme between
ShIftS would not have met the agreed-to deSIrable mInImum-tIme-between-shIft reqUirement of
12 hours set out In ArtIcle 10.2 There would only have been 7 75 hours. ThIS change resulted
In the tIme off between ShIfts beIng 19 75 hours The result of the OrIgInal schedulIng would, In
my OpInIOn, have been unreasonable and would not have demonstrated the best effort on the part
of the Employer to schedule the 12-hour mImmum between ShIftS. However wIth the change In
schedule, the tIme off between ShIftS became reasonable, It was 4 25 hours short of a full day
19
The change-over to the UtIlIty Schedule was estabhshed In July, 1994, and took place from the
last day of one week to the first day of the next. It was, In my OpInIOn, reasonable for It to take
place at that pOInt SInce both schedules run from Monday to Sunday By selectIng August
28th/August 29th as the change-over pOInt, the result was a 60-hour week (12x5) followed by a
40-hour week (8x5) wIth no scheduled days off at the precIse pOInt of change-over Had August
21st/August 22nd been selected the result would have been a 24-hour week (12x2) followed by a
40-hour week (8x5) with 3 regularly scheduled days off between the last scheduled day on the
ComprehensIve Work Week Schedule and the first day on the UtIlIty Schedule Had September
4th/September 5th been selected the result would have been a 60-hour week (12x5) followed by
40-hour week (8x5) wIth no scheduled days off at the pOInt of change-over
There was no IndIcatIOn from the Employer or the Umon as to why the August 28th/August 29th
change-over pOInt was selected or why It could not have selected August 21 st/ August 22nd as the
change-over point. It could have been part of an accommodatIOn agreement between the partIes.
Further, there was no eVIdence that the Umon or Mr MarchIO requested a move ofthe change-
over dates follOWIng the postIng of the schedule whIch would have been around August 1 st.
WhIle Mr MarchIO IndIcated to hIS Employer that he reqUIred medIcal accommodation to a 40-
week (8x5) schedule, and that In completIng the ComprehensIve Work Week Schedule he needed
to be assIgned to 0700 to 1900 hours, as opposed to 1900 to 0700 hours, there was no IndIcatIOn
that there was a further medICal reqUIrement to aVOId a sequence of workIng ShIftS on 8
consecutIve days Mr MarchIo's decIsIon to use 16 hours of credIts and 8 hours of Social
Contract tlme to break the 8-day period was a chOIce that he made to free hImself from workIng
on Saturday August 28th and Sunday, August 29th. He had had 2 regularly scheduled days off
on August 24th and 25th, and he could have had some rehef from the 8-day sequence by takIng
off a sIngle 8-hour ShIft on, for Instance, August 29th. ThIS would have resulted In the follOWIng
sequence from August 22nd to September 4th. 12+ 12+0+0+ 12+ 12+ 12+0,8+8+8+8, that IS,
24+36+32 consecutIve hours, and 2+3+4 consecutlve workIng days
ThiS was a change of ShIft schedule deSIgned for the GrIevor's benefit. The tranSItIon from one
20
ShIft to another resulted In a one-tIme perIod when the GrIevor was scheduled to work 60 hours
III one week and 40 In another The maXImum hours per week In the ComprehensIve Work
Week Schedule IS 60 ThIS was not exceeded on a weekly baSIS. The Umon suggests that the
transItIOn should have been gradual and accommodatIng for the Employee The Irony of the
sItuatIOn IS that the complaInt arose when the Employer was puttIng an accommodatIOn for the
GrIevor into effect. The Employer made the major schedule change accommodatIOn and then
made a further change to ease the transItIOn. It could have gone further and moved the change
date whIch would have aVOIded the 8 consecutIve days. The schedulIng of ShIftS on 8
consecutIve days is unusual when consIdered In the context ofthe schedulmg InfOrmatIOn
provIded, relatIng to the Niagara DetentIOn Centre. It IS also more than any of the situatIOns In
the cases referred to by the partIes. Further, the Employer dId not provIde any InfOrmatIOn to
IndIcate that a sequence of 8 days was a necessIty, unavOIdable, or that aVOIdIng It presented
schedulIng dIfficultIes. For these reasons, as well as the fact that Mr MarchIO IS an employee
WIth a recogmzed medIcal need for scheduhng accommodatIOn, I have to conclude that, In these
partIcular CIrcumstances, the schedulIng of 8 consecutive days IS unreasonable, provIded that
he had not agreed to the change-over pOInt of August 28th! August 29th whIch resulted In the 8-
day stretch.
The Umon suggested that the Employer should arrange a gradual phaSIng-In of the Employee
from one schedule to another, I cannot agree that thIS IS a reasonable expectatIOn, gIven the
eXIstIng parameters, vacatIOn, SIck leave and other comphcatIOns of schedulIng staff coverage for
a. 24-hour operatIOn at a secure facIhty
For the above reasons, I have concluded that the Employer dId not VIolate the CollectIve
Agreement but that In ItS admInIstratIOn of It, It was not reasonable to schedule Mr MarchIO for
8 consecutIve days unless he or the Umon on hIS behalf had entered Illto an agreement to those
partIcular days or that partIcular pOInt In tIme for a change-over However, neIther was It
reasonable for Mr MarchIO to use 16 hours of credIts and expect to have that returned to hIm.
He could have used 8 hours and achIeved a break III the sequence, though It would not have
21
occurred on the weekend nor would It have lasted for 67 45 hours.
In the result, I am orderIng that 8 hours of credIt be returned to Mr MarchIO, provIded that he, or
the Umon on hIS behalf, has not entered Into an agreement whIch specIfies the pOInt of change-
over as August 28/ August 29, 1994 I shall remaIn seIzed of thIS matter to aSSIst the partIes In
the event that they should expenence dIfficulties In Its ImplementatIOn.
Dated atX~ (;..
thiS ~tvr<j ;J.. I <; 5 :;
22