HomeMy WebLinkAbout1997-0410.Group&Clapperton et al.99-03-16
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARJO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TEUPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILEmfucOPIE (416) 326-1396
GSB # 0410/97, 0411/97, 2131/96, 1701/96,0080/97
OPSEU #97D665, 97D666 96A665,96A431 97 A147
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OntarIO PublIc SerVIce Employees Umon
(Group Gnevance, Clapperton et al)
Grievor
- and -
The Crown 1D RIght of Ontano
(MImstry of the SolICItor General and CorrectIOnal ServIces)
Employer
BEFORE Ken Petryshen Vice-Charr
FOR THE RIchard BlaIr
GRIEVOR Counsel, Ryder Wnght Blarr & Doyle
BarrIsters & SolICItors
FOR THE Len Marvy
EMPLOYER Counsel, Legal ServIces Branch
Management Board Secretanat
HEARING November 6, 1998
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DECISION
Certam members of the Umon filed mdlvldual and group grIevances allegmg that
the MinIstry of SohcItor General and CorrectIOnal ServIces contravened ArtIcle 31 7 1 of
the CollectIve Agreement. ArtIcle 31 contams a number of terms and condItIOns that
apply to ooclassIfied employees other than seasonal, student and go-temp employees
ArtIcle 31 7 1, whIch appears for the first tIme m the CollectIve Agreement, provIdes as
follows
31 7 1 EffectIve upon ratIficatIOn by both partIes, all full-tIme
ooclasslfied employees shall, upon completIOn of one (1) month
of contmuous servIce, receIve m heu of all employee benefits
hsted m Part B of the Central Agreement, save and except holIday
and vacatIOn pay, an amooot equal to two percent (2%) oftheu
baSIC hourly rate for all hours worked, exclUSIve of overtIme
Such m heu payment shall not apply to seasonal employees as
defined m ArtIcle 32.2 (DefmltIOn) who qualIfy for coverage
pursuant to ArtIcle 32 8 (Seasonal Employee Benefits - General)
The clause provIdes for an m lIeu payment for benefits of an amooot equal to 2%
of the baSIC hourly rate for all hours worked, exclUSIve of overtrme The partIes could not
agree on whIch ooclassIfied employees are entItled to thIS 2% benefit subsequent to the
ratIficatIOn date of March 31, 1996 The partIes dIsagreed over the mterpretatIOn of the
words "all full-tIme ooclasslfied employees", "upon completIOn of one (1) month of
contmuous servIce" and "for all hours worked, excludmg overtrme" The partIes also
dIsagreed about the appropnate remedIal response should the grIevances succeed.
Subsequent to the hearmg, the partIes requested that a determmatIOn ofthe remedIal
Issues be deferred.
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The partIes filed a Jomt Statement of Facts WhICh refers to the grIevances,
an agreement to consolIdate them, the relevant CollectIve Agreement and the fact that no
DnIon polIcy grIevance on the Issue had been filed. The Jomt Statement of Facts then
went on to set out the followmg facts
5 There are currently two types of unclassIfied employees
wIthm the CorrectIOnal DIVIsIOn. The first type IS
employed on contract for a penod of tIme m order to
backfill a temporary, non-recurrmg vacancy WhICh IS lIkely
the result of a claSSIfied employee bemg off on approved
leave, e g., LTIP, maternIty, etc These employees are
scheduled m the same manner as the claSSIfied mcumbent,
that IS, 36.25 or 40 hours per week, for the duratIOn of the
contract. These employees receIve the benefit set out m
artIcle 31 7 1, once the tnggermg mechanIsm of one month
contmuous servIce has been met.
6 The second type of unclaSSIfied employee IS the on-call,
Irregularly scheduled, up to 40 hours per week employee
These contraact employees are used to fill-m for short-term
absences, e g., Illness, vacatIOn, stafftrammg, etc , and may
also be used to backfill
7 The second type of unclaSSIfied employee does not receIve
the benefits set out m ArtIcle 31 7 1 These employees may
work less than 40 hours a week, for weeks or months at a
tIme and may work 40 hours a week for weeks and months
at a tIme AddItIOnally, hours of work per week and month
may alternate and vary so that some weeks may be less and
others may be at 40 hours on a regular or Irregular basIs
durmg the term of the contract. There are SItuatIOns where
the second type of unclaSSIfied employee has receIved the
2% benefit.
8 The Issue was first raIsed m the Morrow memo dated May
9, 1996 to payroll clerk at WhItby JaIl.
9 EarlIest gnevance filed was July 22, 1996
10 There eXIsts contracts for RPT unclaSSIfied employees
-.. WhICh speCIfy hours.
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As the agreed facts dIsclose, there are actually three types of unclassIfied
employees for our purposes One category consIsts ofthose unclassIfied employees who
are used m a backfillmg role and work full-time hours of eIther 36.25 or 40 hours per
week, dependmg on theu classIficatIOn. TIus type of employee receIves the 2% benefit.
A second category of unclassIfied employees consIsts of regular part-time employees
wIth contracts that specIfy theIr hours and are paid overtIme when they exceed those
hours ThIS category of unclassIfied employees does not receIve the 2% benefit and the
Umon does not argue that they should. A thud type of unclassIfied employee IS
described m paragraphs 6 and 7 of the Jomt Statement of Facts ThIS type of unclassIfied
employee IS on a contract that does not set out speCIfic part-time hours and does not refer
to a backfill SItuatIOn. Such an employee WIll fill m for short-term absences and hIS or
her hours of work m any gIVen week could vary An unclassIfied employee m thIS
category could work full-time hours for weeks or months at a tIme There are SItuatIOns
where thIS type of employee has receIVed the 2% benefit. The Umon takes the posItIOn
that the Employer IS reqmred by ArtIcle 31 7 1 to pay the 2% benefit to unclassIfied
employees m thIS category
The Employer took the posItIOn that "full-tIme unclaSSIfied employees" were
employees subJect to a full-time contract or who de facto worked full-time hours m every
week of the contract. The Employer mamtamed that to complete "one month of
contmuous servIce" an unclaSSIfied employee must work four consecutive full-trme
v weeks Once thIS "tngger" IS met, the Employer submItted that the 2% benefit IS paid for
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all full-time hours worked by the employee, exclUSIve of overtime GIven thIS
illterpretatIOn of the key phrases ill ArtIcle 31 7 1, the unclassified employees ill the thIrd
category would not be entItled to the 2% benefit.
AlternatIvely, the Employer was prepared to accept that the 2% benefit be paid to an
unclassIfied employee on the same basIs that the employee earned attendance credIts
pursuant to ArtIcle 31 8 1 of the CollectIve Agreement. The relevant part of that
prOVlSlon reads as follows
31 8 1 Employees who work thIrtY-SIX and one-quarter (36.25) or (40) hours
per week shall earn attendance credIts of one and one-quarter (1.25) days
for each calendar month of full attendance or for each calendar month of
leave of absence granted under ArtIcle 31 9 (Pregnancy and Parental
Leave)
An unclassIfied employee earns the attendance credIt Ifhe or she works full-tIme
hours for a calendar month. As ItS alternatIve pOSItIOn, the Employer offers an
illterpretatIOn of ArtIcle 31 7 1 that results ill the payment of the 2% benefit to
unclassIfied employees who work full-tIme hours ill a calendar month. With thIS
illterpretatIOn, an unclassIfied employee would not have to work full-time hours for the
entire contract to be paid the 2% benefit.
The Dillon submItted that the words "full-trme unclassIfied employees" referred to
those employees who were treated like full-time CIVIl servants for pay purposes ill that
they were paid overtIme for hours worked ill excess of full-time hours Such an
illterpretatIOn would cover the tlurd category of unclassIfied employees The Dillon
argued that "one month of contmuous servIce" meant four full-time weeks of work,
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whether they are consecutIve or dIstmct weeks of work. The Uillon also mamtamed that
"all hours worked, excludmg overtIme" was not 11lll1ted to full-time hours The Uillon's
pnmary posItion, therefore, was that the partIes mtended that unclassIfied employees who
were treated like full-time cIvIl servants for pay purposes would be pard the 2% benefit
for any hours worked, exclusIve of overtIme, once they completed any four full-time
weeks of work.
The Uillon also offered two alternative posItIOns It submItted that unclassIfied
employees who worked full-tIme hours m a week should be conSIdered "full-time
unclassIfied employees" It also suggested that a representative penod could be used to
determme the status of an unclassIfied employee If, for mstance, an unclassIfied
employee worked four full-tune weeks m a seven week penod, the Uillon mamtamed that
the employee should be conSIdered a full-time unclassIfied employee
In theIr submIssIOns, counsel thoroughly revIewed the relevant CollectIve
Agreement provIsIOns and referred to some decIsIOns m support of theIr pnmary and
alternative posItIOns In support of ItS pnmary posItIOn the Uillon relIed on Scott et aI.,
#1434/96 (ApnI2, 1997, Gray) It also referred to Uillon GrIevance, #0595/88
(March31, 1989, FIsher)
In Scott et aI., Mr Gray deals WIth the CIrcumstances of four gnevances that rarse
Issues concemmg the mterpretatIOn of ArtIcle 18 of the CollectIve Agreement, the
contmuous servIce provIsIOn. ArtIcle 18 deals WIth how much credIt an employee
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appomted to the classIfied servIce WIll receIve for pnor unclassIfied servIce m order to
determme a contmuous servIce or semonty date One of the gnevors before Mr Gray, A.
Garven, had three unclassIfied contracts WhICh provIded for Irregularly scheduled hours
of work, not unlike the employees m the thIrd category of unclassIfied employees
referred to earlIer She worked full-tIme hours for at least 32 of her 91 weeks of
unclassIfied servIce Ms Garven dId not receIve overtrme compensatIOn unless her hours
worked exceeded full-tIme hours
For our purposes, the relevant part of ArtIcle 18 reads as follows
18 1 An employee's length of contmuous servIce WIll accumulate upon
completIOn of a probatIOnary penod of not more than nme (9) months
and shall commence
(b) from the date establIshed by addmg the actual number of
full-trme weeks worked by a full-tIme unclassIfied employee
durmg hIS or her full-tIme employment back to the first break
m employment whIch IS greater than thIrteen (13) weeks,
Mr Gray was reqUIred to mterpret the words "full-tIme weeks worked by a full-tIme
unclassIfied employee durmg hIS or her full-tIme employment" The parties agreed that
"full-tIme weeks" were weeks m whIch an employee worked full-tIme hours One of the
Issues before Mr Gray was what the phrases "worked by a full-tIme unclassIfied
employee" and "durmg hIS full-tIme employment" add to "full-tIme weeks" Mr Gray
summanzed the partIes' pOSItIOns on thIS Issue at page 19 ofthe declSlon as follows
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The employer says that the qualIficatIOn mtroduced by the added
"full-time" references IS that the "full-time weeks" are not credIted unless
the employee worked them durmg the term of an unclassIfied employment
contract WhICh eIther expressly provIded for "full-tIme" employment or was
a de facto "full-time contract" because the employee actually worked full-time
hours m each and every week of the contract. The unIOn says that the
qualIficatIOn mtroduced by the added "full-tIme" references IS that the hours
said to make up a "full-time week" must have been treated as the hours worked
by a full-tune employee would have been as regards entitlement to an overtIme
premIUm. Like the employer's mterpretatIOn, the unIOn's lends some Importance
to the terms of the unclassIfied contract m force at the time the 'full-tIme weeks"
were performed, smce the terms of the contract determme how many hours a
"part-tIme' employee can work m a week before any addItional hours worked
m that week attract an overtIme premIUm.
In acceptmg the Dillon's mterpretatIOn of ArtIcle 18 l(b), Mr Gray concluded at
page 22 that "an employee need not have been workmg pursuant to an express or de facto
"full-tIme" unclassIfied contract m order to claun credIt for a "full-time week" worked,
but hours for whIch an overtIme premIUm was payable do not count m determmmg
whether the hours worked by the employee m a week made It a "full-tIme week"
Mr Gray dId not deCIde, as the Dillon argued before me, that a "full-tIme
unclassified employee" was an unclassIfied employee who was treated like a full-tIme
classIfied employee for pay purposes If thIS were so, an employee who worked megular
hours and therefore was treated for pay purposes like a full-time classIfied employee,
would be a "full-tIme unclassIfied employee" even Ifhe or she never worked a full-tIme
week durmg the penod of the contract. In my VIew, a careful readmg of Scott et al.
reveals that Mr Gray concluded that the "full-time" references after the words "full-time
weeks" m ArtIcle 18 1 (b) add lIttle to those words. In effect, Mr Gray determmed that
an unclassIfied employee IS a "full-time unclassIfied employee" when he or she works
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full-tIme hours rn a week. In determrnrng whether an unclassIfied employee worked full-
tIme hours rn a week, hours for whIch the employee was entItled to an overtIme premIUm
would not be counted.
In the Umon GrIevance declSlon, Mr FIsher rnterpreted ArtIcle 31 8 1 of the
CollectIve Agreement, the provlSlon set out prevlOusly dealrng wIth attendance credIts
and sIck leave That prOVIsIOn essentIally provIdes that employees who work full-tIme
weeks rn a calendar month earn the attendance credIt. Before Mr FIsher, the Employer
argued that the benefit was only aVaIlable to unclassIfied employees who work on a full-
tIme baSIS durrng theIr contract and, therefore, would not be aVaIlable to employees who
work on a call-rn basIs In reJectrng the Employer's submIssIOn, Mr FIsher concluded
that the form of the employee's contract IS not determrnatIve He deCIded that the focus
.
should be on what the unclassified employee does and Ifhe or she worked full-tIme hours
rn a calendar month, the employee should receIVe the benefit.
In support of ItS posItIOn, the Employer submItted that ArtIcle 31 7 1 prOVIdes a
context qmte dIfferent from the one before Mr Gray, WIth the result that Scott et. al IS of
lIttle aSSIstance The Employer argued that ArtIcle 31 7 1 must be gIVen a reasonable
rnterpretatIOn and that the partIes could not have rntended a result that was complIcated or
admrnIstratIvely unfeasable In ItS VIew, the Umon's rnterpretatIOn IS not reasonable and
could not have been rntended by the partIes when they agreed to ArtIcle 31 7 1
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The partIes recogmze that the words they used m ArtIcle 31 7 1 are susceptable to
dIfferent mterpretatIOns In ascertammg what the partIes mtended, an arbItrator must, of
course, carefully examme the words used by the partIes as well as dIscern, m a general
sense, what the parties were attemptmg to accomplish. In thIS latter regard, I believe that
It IS mstructIve to note that the 2% benefit IS to be paId m lieu of all employee benefits
listed m Part B of the CollectIve Agreement, WIth the exceptIOn of holiday and vacatIOn
pay Part B contams employee benefits for full-tIme CIVIl servants As the facts before
me dIsclose, unclaSSIfied employees could work full-tnne hours m any gIVen week and
for weeks at a tIme m a manner snmlar to full-tIme CIVIl servants However, pnor to the
msertIOn of ArtIcle 31 7 1 m the CollectIve Agreement, unclassIfied employees dId not
receIve the benefits enJoyed by full-tIme CIVIl servants In my VIew, the general purpose
of ArtIcle 31 7 1 IS to prOVIde the 2% benefit to those unclaSSIfied employees who work
hours SImIlar to those worked by full-tIme CIVIl servants The Employer and the Uillon
agree that unclaSSIfied employees m the first category should receIve the 2% benefit smce
they work on a baSIS SImIlar to full-tIme CIVIl servants. UnclassIfied employees m the
first category replace claSSIfied employees who are absent for long penods of tIme The
dIspute over whether the thIrd category of unclassIfied employee should receIve the 2%
benefit IS, m essence, a dIsagreement over whether employees m thIS category work
hours SImIlar to those worked by full-tIme CIVIl servants
Although the dIsputed phrases m ArtIcle 31 7 1 are mter-related, I WIll reVIew them
separately, begmnmg WIth the words "all full-tIme unclaSSIfied employees" I agree WIth
the Uillon's submISSIon that the form of the unclaSSIfied contract IS not determmatIve of
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whether employees are "full-tIme unclassIfied employees" As noted earlier, the Scott et
aI. and Dillon GrIevance deCIsIOns support tills conclusIOn. If the partIes had mtended
that only employees wIth "full-tune contracts" would receIve the 2% benefit, they could
have eastly used language to mdIcate that only employees wIth a partIcular form of
contract were covered by ArtIcle 31 7 1 The absence of such language supports the
mference that the partIes had no such mtentIOn. SImIlar reasonmg supports the
conclusIOn that the partIes dId not mtend to cover only those unclassIfied employees who
work full-tIme hours for the duratIOn of the contract. If the partIes had mtended thIS
result, one would have expected language SImIlar to that used m ArtIcle 31 8 1, where
there IS a specIfic mdIcatIOn that the attendance credIt would be paid to employees who
worked full-tIme hours m a calender month. I note that Mr Gray m Scott et aI. also
rejected the Employer's submIssIOn that employees must have a de facto "full-tIme"
contract.
I also agree WIth the Dillon's submIssIOn that IdentIcal words m a collectIve
agreement should be gIVen the same meanmg unless there IS some mdIcatIOn that the
partIes mtended otherwIse The words "full-tIme unclassIfied employee" appear m
ArtIcle 18 1 (b) and m ArtIcle 31 7 1 Although the context of these prOVIsIOns IS
dIfferent, one deals WIth contmuous servIce and the other WIth the 2% benefit, they both
focus on employment m the unclassIfied servIce There IS no mdIcatIOn that the partIes
mtended the words to have one meamng m ArtIcle 18 1 (b) and a dIfferent meanmg m
ArtIcle 31 7 1 Therefore, havmg regard to the conclusIOns m Scott et aI., I fmd that the
partIes mtended the words "all full-tune unclassIfied employees" m ArtIcle 31 7 1 to
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mean those unclassIfied employees who work full-tIme hours m a week. Hours for whIch
an employee was entItled to an overtIme premIUm are not counted when determmmg
whether an unclassIfied employee worked full-trme hours m a week.
The dIspute between the partIes concernmg the words "upon completlOn of one (1)
month of contmuous servIce" is much narrower The parties agree that the words mean
four full-tIme weeks of work. However, they cannot agree on whether the tngger reqUIres
four consecutive full-tIme weeks or, as the Dillon argued, whether four distmct full-tIme
weeks are suffiCIent. Given the words they used, I agree With the Dillon's submiSSlOn
that the parties mtended to use the contmuous service concept defmed m Article 18 of the
Collective Agreement. As noted prevlOusly, Article 18 defmes contmuous service as the
accumulatlOn of full-tIme weeks of work. These full-tIme weeks of work need not be
consecutiVe weeks If the parties had mtended what the Employer asserts, one would
have expected language that did not refer to contmuous service or words that more
clearly provIded for a consecutiVe tIme frame Therefore, It is my concluslOn that the
parties mtended the tngger to be met when an unclassified employee completed any four
distmct full-tIme weeks of work subsequent to the ratIficatlOn date
The fmalissue is the meanmg ofthe words "for all hours worked, exclUSive of
overtime" Havmg regard to the concluslOn that "full-tIme unclassified employees" refer
to unclassified employees who work full-time hours m a week, it follows that the words
"all hours worked" must refer to all full-tIme hours worked by an unclassified employee,
exclusIve of overtime
.
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.
Therefore, It IS my conclusIOn that the partIes rntended the followrng result when
they agreed to ArtIcle 31 7 1 of the CollectIve Agreement. The 2% benefit would be paId
to those unclassIfied employees covered by ArtIcle 31 of the CollectIve Agreement who
work full-tune hours m a week (wIthout countmg the hours for WhICh employees were
entItled to an overtIme premIUm) once they completed any four dIstmct full-tIme weeks
of work subsequent to ratIficatIOn of the CollectIve Agreement. The unclassIfied
employees entItled to the benefit shall receIve an amount equal to 2% of theIr baSIC
hourly rate for all full-tIme hours worked, exclUSIve of overtIme
As a result of the above mterpretatIOn of ArtIcle 31 7 1, some employees m the thud
category of unclassIfied employees may be entItled to the 2% benefit. Accordmgly, the
gnevances are allowed. I WIll remam seIsed of the grIevances to deal WIth any
ImplementatIOn or compensatIOn Issues that the partIes are unable to resolve, as well as
the deferred Issues referred to m the second paragraph of thIS declSlon.
Dated at Toronto, tlus 16th day of March, 1999
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Ken Petryshen - Vice-ChaIr