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HomeMy WebLinkAbout1999-0683.Group Grievance.02-02-12.Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0683/99,0684/99 UNION# 99B666, 99B668 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Group Grievance) Grievor -and- The Crown In Right of Ontario (Ministry of the Attorney General) Employer BEFORE Randl H Abramsky Vice-Chair FOR THE GRIEVOR John Brewln Counsel clo Ryder Wright Boyle & Doyle Barristers & Solicitors FOR THE EMPLOYER Melissa Nixon Counsel, Legal Services Branch Management Board Secretariat HEARING January 29 and 30, 2002 AWARD At Issue IS whether the gnevors, a group of unclassified employees at the Hamllton Court House, were entItled to overtIme under ArtIcle 31 3 1 of the collectIve agreement for a senes of mandatory trammg and onentatlOn seSSlOns held dunng evemng hours on May 12 and May 13 1999 and May 25 1999 ArtIcle 31 3 of the collectIve agreement proVIdes as follows 31.3 OVERTIME 31 3 1 One and one-half (1 IIz) tImes the baSIC hourly rate shall be paid for authonzed hours of work performed (a) m excess of seven and one-quarter (7 1J4) or eIght (8) hours per day as apphcable, where employees work a regular thIrtY-SIX and one-quarter (36 1J4) or forty (40) hour work week, as apphcable or (b) m excess of the scheduled hours for employees who work on a regularly scheduled work day exceedmg eIght (8) hours, or (c) m excess of the employees' regularly scheduled work week, or (d) m excess of thIrtY-SIX and one-quarter (36 1J4) or forty (40) hours per week where employees do not have regularly scheduled work days Facts The partIes' proVIded an agreed statement of facts, whIch was then supplemented by viva voce testImony The agreed statement of facts IS as follows 1 There are two gnevances, both of whIch raise the same Issue They were filed on May 25 1999 2 The gnevors were all unclassified staff at the Hamllton Court House Some of the gnevors were court clerks the others are court regIstrars or court servIce officers and - 2 - clerk mom tors The gnevors pnmanly worked m assIgned court rooms dunng court heanngs, though they also dId pre and post court work. 3 Each of the gnevors were covered by standard "contracts" that provIded, among other thmgs, that they were to work "up to" 3625 hours per week, on an "as reqUired/as needed" basIs 4 The gnevors were covered by the collectIve agreement between the partIes In partIcular ArtIcle 31 apphed to them 5 The practIce at the tIme of the gnevances was that for the court clerks a schedule was pubhshed m advance mdlcatmg whIch days m the followmg penod the court clerks were reqUired. The schedule mdlcated as well the court room to whIch they were assIgned. The court reporters and court servIce officers were generally adVIsed of theIr work aSSIgnments the previOUS day 6 Flmsh tIme vaned for the gnevors dependmg on the court to whIch they were assIgned. The gnevors' work day would normally be completed one-half hour after the court heanngs m theIr court room were concluded. OccaSiOnally they would get authonzatiOn to work some addItiOnal tIme 7 In May and June 1999 management antIcIpated a move from four courthouses m Hamllton to one SIte at 45 Mam St. East (although Famlly Court functiOns would contmue to be carned on at a second sIte) Management set up a senes of trammg or onentatiOn seSSiOns as follows May 12 and May 13 1999 from 5 p.m to 9 pm. May 25 from 5 p.m to 7 45 P m The gnevors were reqUired to attend all of these seSSiOns and dId attend them, as reqUired. 8 The gnevors and the Dmon say that by the proVIsiOns of ArtIcle 31 3 1 of the CollectIve Agreement, correctly mterpreted, the Employer was obhged to pay them at tIme and a half for the tIme spend at the descnbed seSSiOns The Employer's pOSItiOn IS that the gnevors would only be entItled to overtIme If they worked m excess of 3625 hours m a partIcular week, m accordance WIth ArtIcle 31 3 l(d) Elame Young, one of the gnevors, testIfied that m May 1999 she worked as a court clerk and weekend clerk momtor She testIfied that for a number of years, the clerks receIved a monthly schedule speclfymg the days and courts to whIch employees were assIgned. SometIme m 1998 or early 1999 that changed to a weekly schedule - agam speclfymg the days and courts to whIch the clerks were assIgned. ThIS was confirmed by Judy Mann, SupervISor for Court OperatiOns for Court Support at the John Sopmka Court - 3 - House, who testIfied that each Fnday she receIved a faxed copy of the followmg week's schedule for the court clerks In contrast, as set out m the agreed statement of facts, the court reporters and court servIce officers were generally adVIsed of theIr work assIgnments one day m advance Through thIS schedulmg, the employees would know theIr startmg tIme It depended on whIch court they were assIgned to and the locatiOn of the court. TheIr startmg tIme would eIther be 8 15 9 15 or 9 30 a.m. dependmg on the court and ItS locatiOn. Accordmg to Judy Mann, the employees' startmg tIme was "999% predIctable" However there was no set fimshmg tIme The gnevors' workday ended when the court heanngs m theIr courtroom were concluded, plus theIr reqUired post-court work of eIther 15 or 30 mmutes Although, accordmg to Ms Young, the maJ onty of the tIme, theIr workday ended at 4 00 or 4 30 she acknowledged that there was a "dIfferent scenano each day " Judy Mann, who worked as a court reporter and scheduled the court reporters, court servIce officers and court room regIstrars m 1999 also testIfied that the employees' fimshmg tImes "vaned tremendously" She explamed that a tnal could settle or a WItness mIght be unavallable and the tnal could collapse and "we all went down as a court together" She stated that "there was no conSIstent tIme frame" for the day to end. Mann testIfied that "occaSiOnally" - two or three tImes per month - the court work past 5 00 P m. "Rarely" dId she work past 6 00 p.m - 4 - OccaSiOnally court mIght be cancelled for the day and, m that event, the employees would receIve two hours call-m pay There could also be, on occaSiOn, last mmute changes m the schedule The partIes agreed, at the heanng, not to ehclt eVIdence regardmg whether overtIme pay m accordance WIth ArtIcle 31 3 l(d) was paid to the gnevors Instead, both partIes requested that I rem am seIzed on that Issue Arguments of the Parties A. The Union The Dmon contends that the gnevors are entItled to be paid overtIme for the trammg/onentatiOn seSSiOns m questiOn under ArtIcle 313 1 (b) and/or (c) SpeCIfically the Dmon contends that those seSSiOns were "m excess of the scheduled hours for employees who work on a regularly scheduled work day exceedmg eIght (8) hours" or were "m excess of the employees' regularly scheduled work week." In the Dmon's submIssiOn, the gnevors, whose schedules were determmed eIther a week or a day m advance, had "regularly scheduled work days" wlthm the meamng of ArtIcle 31 3 1 (b) and the fact that theIr fimshmg tIme vaned dId not change that fact. "Regularly scheduled" It submIts, means scheduled m advance For thIS reason, It contends that ArtIcle 31 3 1 (b) and (c) apply not (d) as asserted by the Employer In support, the Dmon CItes to OPSEU (Chircop) and Ministry of Transportation (1995) GSB No 3039/92 (Kaufman) - 5 - The Dmon also contends that the employees' scheduled hours of work or "work day" IS defined by the court seSSiOn - It lasts as long as the court SItS plus an addItiOnal 15 or 30 mmutes Further It notes that the eVIdence was that the work day normally ends around 4 00 or 4 30 and only rarely goes beyond 5 00 p.m Accordmgly It submIts that wlthm some boundanes, the employees assIgned for a day can antIcIpate the hours of work for that day The Dmon argues that the fact that the gnevors' contracts proVIde for work "up to" 36 1J4 hours per week, or mcludes the words "as reqUired/as needed" does not alter theIr entItlement to overtIme The key It contends, IS whether the employees have a "regularly scheduled work day" whIch, It asserts, they do The Dmon submIts that the reqUired trammg and onentatiOn seSSiOns were held m the evemng hours, whIch were not part of theIr regularly scheduled work day It notes that the classIfied employees who were reqUired to attend were paid overtIme for attendmg these seSSiOns and asserts that the gnevors should also have been paid overtIme for these hours B. The Employer The Employer contends that the gnevors entItlement to overtIme hes solely under ArtIcle 31 3 l(d) because they "do not have regularly scheduled work days" smce theIr fimshmg tIme vanes WIth the end of the court day A "regularly scheduled work day" It - 6 - submIts, reqUires both a startmg and endmg tIme The fact that theIr endmg tIme IS uncertam, It submIts, means that the gnevors do not have specIfic "scheduled hours" under ArtIcle 31 3 l(b) and do not have a "regularly scheduled work week" under ArtIcle 3131(c) The Employer contends that each part of ArtIcle 31 3 1 apphes to a dlstmct group of unclaSSIfied employees Subpart (a) whIch both partIes agree IS not apphcable It submIts apphes to unclaSSIfied employees who work a regular 36 1J4 or 40 hours, Monday to Fnday 9 to 5 work week. Once theIr workday goes beyond that regular work day overtIme apphes Subpart (b), It contends, apphes to a ShIft worker "who work [ s] on a regularly scheduled work day exceedmg eIght (hours)" of 8 10 or 12 hours If an employee works beyond theIr scheduled ShIft, overtIme apphes In support of ItS mterpretatiOn It CItes to OPSEU (Union Grievance) and Ministry of Correctional Services GSB No 2180 (1991) (SImmons) The Employer dlstmgUishes Chircop cIted by the Dmon, because m Chircop the employee had a ShIft, WIth both a specIfic startmg and endmg tIme, not Just a scheduled start tIme hke the gnevors m thIS case In ItS submIsSiOn, to have a "regularly scheduled work day" there must be a specIfic startmg and endmg tIme It IS not enough to say that they fimsh "around 4" It submIts that there must be "scheduled hours" to tngger ArtIcle 31 3 1 (b) and that WIthout a specIfic endmg tIme, there cannot be "scheduled hours" under thIS proVIsiOn. - 7 - Subpart (c) It submIts, apphes to employees who work beyond theIr regularly scheduled hours for the week. If an employee was scheduled to work 40 hours on Monday through Thursday and was asked to work on Fnday those hours would be overtIme under thIS subpart. Subpart (d), the Employer contends, apphes to those employees who do not have regularly scheduled work days, and It submIts that the gnevors fall mto thIS category The Employer pomts to theIr employment contracts whIch mdlcate no specIfic hours of work, but provIde "up to 36 1J4" hours per week wIth no guarantees The eVIdence, It argues, shows that the gnevors do not work predetermmed hours - there IS a vanety of startmg tImes and unpredIctable endmg tImes It notes that the employees schedule IS subJect to change, mcludmg possIble cancellatiOn of the day GIven thIS SItuatiOn, It submIts that subsectiOn (d) apphes and that It makes sense to apply It. The Employer contends that only when an employee works over 361J4 hours are they are entItled to overtIme pay In support, the Employer CItes to OPSEU and MinistlY of Correctional Services GSB No 72/84 (1984)(Jolhffe) OPSEU (Bernard et al) and Ministry of Natural Resources GSB No 734/94 (1997)(Dlssanayake) It submIts that ArtIcle 31 3 1 was properly apphed and that the gnevances should be dIsmIssed. - 8 - Decision For the reasons set forth below I conclude that ArtIcle 31 3 1 was properly apphed. Accordmgly to the extent that the Employer comphed WIth thIS proVIsiOn, the gnevances must be dIsmIssed. It IS really qUite understandable why the gnevors felt that they should be paid overtIme for the trammg and onentatiOn seSSiOns m questiOn. At that tIme, accordmg to Ms Young, the staff was generally workmg full days, and the onentatiOn/trammg seSSiOns were addItiOnal, reqUired hours Further the classIfied staff receIved overtIme for these seSSiOns The gnevor's legal entItlement to overtIme, however depends on the meamng of ArtIcle 31 3 1 That ArtIcle proVIdes as follows 31.3 OVERTIME 31 3 1 One and one-half (1I1z) tImes the baSIC hourly rate shall be paid for authonzed hours of work performed (a) m excess of seven and one-quarter (71J4) or eIght (8) hours per day as apphcable, where employees work a regular thIrtY-SIX and one-quarter (36 1/3) or forty (40) hour work week, as apphcable or (b) m excess of the scheduled hours for employees who work on a regularly scheduled work day exceedmg eIght (8) hours, or (c) m excess of the employees' regularly scheduled work week, or (d) m excess of thIrtY-SIX and one-quarter (361J4) or forty (40) hours per week where employees do not have regularly scheduled work days - 9 - Both partIes agree that ArtIcle 31 3 l(a) does not apply to the gnevors The Dmon concedes that they do not work a "regular thIrtY-SIX and one-quarter (36 1J4) or forty (40) hour work week." Instead, the Dmon asserts that the gnevors were entItled to overtIme pay under subsectiOn (b) and/or (c) The wordmg of ArtIcle 31 3 1 (b) reqUires that overtIme be paid for authonzed hours of work performed "m excess of the scheduled hours for employees who work on a regularly scheduled work day exceedmg eIght (8) hours " Consequently to be entItled to overtIme pay under thIS subsectiOn, an employee must work m excess of theIr "scheduled hours" and must work "on a regularly scheduled work day exceedmg eIght (8) hours" In thIS case, puttmg aSIde the questiOn of whether thIS subsectiOn only apphes to ShIft workers who regularly work eIght or more hours per day there IS a questiOn about whether the gnevors' have "scheduled hours" wlthm the meamng of ArtIcle 31 3 l(b) The Dmon submIts that they do have "scheduled hours" because when scheduled for a day theIr hours are defined by the tIme the court IS m seSSiOn - the court's hours plus eIther 15 or 30 mmutes In the Employer's VIew they do not have "scheduled hours" because theIr endmg tIme IS unpredIctable I conclude that gnevors do not have "scheduled hours" wlthm the meamng of ArtIcle 3131(b) The problem WIth the Dmon's argument IS that the court's hours - to whIch the gnevor's hours are tIed - are not certam. They vary and can change at any tIme If the court "goes down." A case may settle or a WItness may be unavallable Accordmgly - 10 - the court does not have specIfic "scheduled hours" and neIther do the gnevors The court - and the gnevors - have a specIfic startmg tIme, but they do not have a specIfic endmg tIme To have "scheduled hours" there must be both a specIfic startmg and endmg tIme For thIS reason, the gnevors do not have "scheduled hours" wlthm the meamng of thIS overtIme provIsiOn and It does not apply to them That an employee must have "scheduled hours" under thIS provIsiOn was noted by the Board m OPSEU and Ministry of Correctional Services, supra In that case, the Board was asked a senes of hypothetIcal questiOns concemmg overtIme pay for unclassIfied employees The Board noted at p 8 that" [w]e are not m a posItiOn to determme as a matter of fact whether or m what CIrcumstances ArtIcle 3 employees may have "scheduled hours" or may be "regularly scheduled to work." It contmued Such a determmatiOn would have to be made on the facts of a partIcular case Nonetheless the partIes mVlte us by theIr questiOn to mterpret the proVIsiOns of ArtIcle 33m the case of a hypothetIcal ArtIcle 3 employee who has "scheduled hours" or IS "regularly scheduled," and we can do so WIthout determmmg m advance what would constItute such a schedule m any partIcular case One of the questiOns posed m that case, questiOn #3 was the followmg "Where the employees m an mstltutiOn regularly work more than 8 hours per day (for example, 10 or 12 hours per day) are the ArtIcle 3 [unclassIfied] employees entItled to overtIme pay when they work beyond theIr scheduled hours and those scheduled hours exceed 8 m the day?" The Board answered "yes" statmg at p 15 as follows ArtIcle 33(b) [now ArtIcle 313 l(b)] unhke 3 3(a) makes specIfic reference to scheduled hours and a regularly scheduled work day It has already been noted that whether an employee's hours are scheduled and whether he has regularly scheduled workdays are questiOns of fact that - 11 - cannot be answered except m the CIrcumstances of a specIfic case In the case of an ArtIcle 3 employee who does have scheduled hours and works on a regularly scheduled work day the language of ArtIcle 3 3(b) IS plam. To thIS extent, the answer to QuestiOn 3 must be "Yes" A slmllar conclUSiOn was reached m OPSEU (Union Grievance) and Ministry of Correctional Services supra The Board determmed that "an unclassIfied employee who IS slotted mto a classIfied employee's work schedule of 12 hours" IS not entItled to overtIme pay for any hours worked m excess of eIght. The Board held at pp 8-9 In our VI ew ArtIcle 34(b) [now ArtIcle 313 l(b)] gIves a complete answer to the SItuatiOn that IS before us What we have here IS an unclassIfied employee who IS assIgned to work a regularly scheduled 12 hour shIft. That ShIft IS "a regularly scheduled work day exceedmg eIght (8) hours" It IS to be noted that 3 4(b) states that overtIme IS to be paid when the employee works "m excess of the scheduled hours" unhke (c) whIch says "m excess of the employee's regularly scheduled work week" Therefore, ArtIcle 3 4(b) apphes and employees who are workmg on a regularly scheduled work day that IS of 12 hours duratiOn are not entItled to overtIme unless they exceed the regularly scheduled hours of work for the day The only exceptiOn to thIS IS m OPSEU (Chircop) andMinistry of Transportation, supra In that case, the Board ruled that m hght of the mclusiOn of the compressed work week proVIsiOn for the unclassIfied employees, the holdmg m OPSEU (Union Grievance) and Ministry of Correctional Services, supra, was no longer controllmg - and that m the absence of "other arrangements" employees would be entItled to overtIme for any hours worked over 8 m a day In my VIew however Chircop IS dlstmgUishable because the gnevor m that case clearly had "scheduled hours" The scheduled hours vaned, but they were defimte and - 12 - specIfic In the present matter the gnevors' dId not have specIfic "scheduled hours" Accordmgly they are not entItled to overtIme pay under ArtIcle 31 3 1 (b) Nor m my VIew are the gnevors entItled to overtIme under ArtIcle 31 3 l(c) for workmg authonzed hours "m excess of the employees' regularly scheduled work week." Except for the court clerks, the gnevors were scheduled one day m advance Clearly therefore, they dId not have a "regularly scheduled work week" wlthm the meamng of thIS proVIsiOn. Nor dId the court clerks GIven the uncertamty m theIr schedule, mcludmg whether they w1l1 be scheduled at all, they also dId not have a "regularly scheduled work week." Instead, I concur WIth the Employer that under the specIfic CIrcumstances of thIS case, the apphcable overtIme sectiOn IS ArtIcle 31 3 l(d) Under ArtIcle 31 3 l(d), overtIme pay IS reqUired for authonzed hours "m excess of thIrtY-SIX and one-quarter (36 1J4) or forty (40) hours per week where employees do not have regularly scheduled work days" There IS no questiOn that the gnevors were scheduled m advance to work on certam days - whether one week or one day m advance But there was no certamty m thIS They were scheduled on an "as needed/as reqUired" baSIS They mIght be scheduled, they mIght not be scheduled There was no guarantee of hours or work. In thIS regard, Chircop IS dlstmgUishable In that case, the gnevor enJoyed a three- week rotatmg schedule glvmg hIm "three dIfferent but regularly scheduled work weeks " (Dec at p 61) Thus, the board concluded that "hIS 'work days' were regularly - 13 - scheduled on a 3-week rotatiOn, such that ArtIcle 34(d) [now ArtIcle 31 3 l(d)] would not apply" (Dec p 61) The Umon argues that the gnevors, hkewlse once scheduled - be It a day or a week m advance - also had "regularly scheduled work days" so that ArtIcle 31 3 l(d) would not apply The dIfference IS that m Chircop there was a regular three-week rotatiOn. Chlrcop's work days were scheduled on a regular baSIS, i.e the same days each week dunng week 1 the same days each week dunng week 2 the same days each week dunng week 3 on an ongomg baSIS In contrast, there IS no eVIdence that the gnevors' scheduled days were regular at all Once scheduled, the days were "scheduled work days" But there IS no eVIdence, as m Chircop that the gnevors had "regularly scheduled work days" The word "regularly" m ArtIcle 31 3 l(d) modIfies "scheduled work days" It does not mean "scheduled m advance" They must have "regularly scheduled work days" on an ongomg, consIstent baSIS for ArtIcle 31 3 l(d) not to apply Where, as here, unclaSSIfied employees mayor may not be scheduled they "do not have regularly scheduled work days" and they must work m excess of 36 1J4 or 40 hours per work m order to receIve overtIme pay Accordmgly I conclude that ArtIcle 31 3 l(d) apphes to the gnevors, not ArtIcle 31 3 1 (b) or (c) To the extent that the Employer has comphed WIth ArtIcle 31 3 1 (d) the gnevances are dIsmIssed. To the extent, If any that It has not comphed WIth ArtIcle 3 1 3 1 (d), I shall rem am seIzed. - 14 - Dated at Toronto thIS lih day of February 2002 1 .) ~r\~ Randl H. Abramsky Vice-Chair - 15 -