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HomeMy WebLinkAbout2002-1510.Union Grievance.04-03-08 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-1510 UNION# 2002-0999-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Management Board Secretanat) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Richard Blair Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat HEARING By wntten submIssIOns 2 DeCISIon ThIS IS the thIrd In senes of decIsIOns about the entItlement of essentIal and emergency workers to hohday pay for Good Fnday and Easter Monday whIch fell dunng the strike In 2002 The Issued addressed In tlus decIsIOn was framed by the last paragraph of the most recent decIsIOn, dated October 20, 2003 The decIsIOn In Andres Wzne5,' would seem to IndIcate the Issue to be detennIned here IS whether there eXIsts a "reasonable nexus" between the hohday pay claimed and the performance of work, In the case of employees covered by the collectIve agreement on Good Fnday or Easter Monday A final ruhng on whether the eXIstence of such a nexus should be the detennInIng factor, and on whether tlus sort of nexus does eXIst In the cIrcumstances, would be premature untIl the partIes have had an opportumty to make submIssIOns on these two questIOns (page 7) I In a letter dated December 5, 2003, umon counsel commented on the outstandIng Issue The Issue IS not merely the SubsIstence of the employment relatIOnshIp but the terms and condItIons of employment for employees whose relatIOnshIp dunng the strike remaInS one of beIng subJect to the performance of work at the employer's behest In tlus admIttedly pecuhar cIrcumstance, the bargaIn struck by the partIes IS a sImple one - the cost allocatIOn of the nght to maIntaIn such servIces favours payment under the terms and condItIons of the CollectIve Agreement In favour of employees whose legal nght to refraIn from workIng has been fettered to permIt the Employer to operate ItS busIness In our submIssIOn, there IS no "gap" In the collectIve agreement created by thIS sItuatIOn, but rather an agreed upon allocatIOn of cost and benefit To the extent a "nexus" IS reqUIred, It IS found In the employer- mandated maIntenance of the nght to call upon essentIal and emergency workers who, by vIrtue of the CondItIons document, are then entItled to the benefit of the collectIve agreement wIthout InterruptIOn (page 2) 3 Counsel for the employer responded In a letter dated January 30, 2004, contendIng that entItlement to hohday pay should not turn upon a nexus between work perfonned and benefit claimed and that any such nexus was lackIng In the case at hand. Counsel argued that the grantIng of hohday pay would "result In effects that are InCOnsIstent WIth the reasonable expectatIOns of the partIes" (page 2) Two such effects were cIted. . emergency/essentIal serVIces workers workIng less than full-tIme hours wIll receIve the same benefits receIved by essentIal and emergency servIces employees workIng full-tIme hours, . emergency/essentIal serVIces workers workIng less than full-tIme hours wIll receIve a greater benefit than all employees workIng less than full- tune hours dunng non-strike penods because, pursuant to the Manual of AdmInIstratIOn, employees workIng less than full-tIme hours dunng non- stnke pen ods would be consIdered on authonzed leave and would not have access to statutory hohday pay (page 2) Counsel went on to urge me to resolve any ambIgUIty In the collectIve agreement by reference to the Manual of AdmInIstratIOn In a reply dated Feb 26, 2004, umon counsel submItted the employer's rehance upon ItS Manual of AdmInIstratIOn "In essence amounts to a request for reconsIderatIOn of your ruhng on thIS pOInt whIch we respectfully request that you reJ ect " II In the decIsIOn dated October 20,2003, I summanzed the employer's InItIal argument about the Manual of AdmInIstratIOn and concluded It lacked ment The employer also rehes upon the passage In ItS Manual of AdmInIstratIOn statIng hohday pay IS not OWIng "where a statutory hohday occurs dunng a leave-of-absence wIthout pay unless the leave IS due to sIckness or InJury" 4 No eVIdence was led as to how thIS pohcy has been consIstently apphed and, If so, whether umon officials acqUIesced In such consIstent apphcatIOn As suggested by umon counsel, In the absence of eVIdence relatIng to these matters, management's pohcy IS of no assIstance In InterpretIng the collectIve agreement (page 5) F or the reason stated In my ear her decIsIOn, the Manual of AdmInIstratIOn does not assIst the employer Employer counsel urges me not to award hohday pay to employees who worked reduced hours because the partIes could not reasonably have expected these employees to receIve the same benefit as those who hours were not reduced. ThIS argument ImphcItly reJects the reasonIng underlYIng Andres Wznes whIch assume InactIve employees are entItled to the same benefits as those actIvely employees, so long as there IS a reasonable nexus between work performed and the benefit claimed by those not actIvely employed. HavIng revIewed the submIssIOns of counsel, I conclude entItlement to hohday pay should be detennIned by consIdenng whether there IS a sufficIent nexus between the work perfonned and the benefit claimed. In decIdIng whether such a nexus eXIts In the case at hand, I begIn wIth emergency workers I already have ruled they were covered by the collectIve agreement on the day of a hohday only If It fell In the Interval between work beIng assIgned and the completIOn of that work. For a hohday fallIng In thIS penod, there IS a reasonable nexus between the work performed and the benefit claimed. Employees desIgnated as essentIal were covered by the collectIve agreement throughout the strike, so long as they actually performed some essentIal dutIes Such employees may have worked fewer hours per week, or fewer weeks per month, than they dId before the work stoppage, but they tYPIcally had scheduled hours throughout the strike Based upon the ShIftS scheduled for them, I conclude there IS a reasonable nexus between the performance of work and the benefit claimed. Indeed, for both emergency and essentIal workers, the nexus between 5 work performed and benefit claimed IS much stronger than It was In Andres Wznes where hohday pay was awarded to employees laid off for months The foregoIng analysIs leads me to conclude any employee covered by the collectIve agreement on Good Fnday or Easter Monday IS entItled to pay In recogmtIOn of the hohday Dated at Toronto thIS 8th day of March 2004 ft~~~ Ichard Brown . VIce-Chair