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HomeMy WebLinkAbout2002-1510.Union Grievance.04-05-14 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 May 12,2004 2 DeCISIon ThIS IS the fourth In senes of decIsIOns about the entItlement of essentIal and emergency workers to hohday pay for Good Fnday and Easter Monday In 2002, both of whIch days fell dunng the strike that year The current dIspute IS about correctIOnal workers I To be entItled to pay for a hohday, an employee must have been covered by the 1999-2001 collectIve agreement when the hohday occurred and must have met the entItlement cntena prescribed by that agreement Coverage under the collectIve agreement IS governed by document, dated September 20,2001, entItled CondItIons for the 2001-2002 OPS-OPSEU EssentIal ServIces and CollectIve Agreement NegotIatIOns (the 2002 condItIons document) In a decIsIOn dated December 4,2002, I made the folloWIng determInatIOns as to when emergency and essentIal employees were covered by the collectIve agreement 1 An emergency worker was covered by the collectIve agreement In the Interval between beIng scheduled to work and completIng all scheduled work. The collectIve agreement dId not apply to such an employee before beIng scheduled to work or after all scheduled work had been completed. 2 The collectIve agreement has no apphcatIOn to an employee who was desIgnated to provIde essentIal serVIces but perfonned no such work dunng the strike 3 An employee who was desIgnated to perfonn essentIal serVIces, and who dId so, was covered by the collectIve agreement for the entIre duratIOn of the stnke (pages 18 and 19) 3 ThIS ruhng was clanfied In a second decIsIOn, dated October 30,2003, where I concluded. In summary, the Intenm award IS hereby clanfied to mean an emergency worker was covered by the collectIve agreement In the Interval between beIng scheduled or called back to work and completIng all outstandIng ShIftS so assIgned. The second decIsIOn also addressed the Issue of whether employees who were covered by the collectIve agreement on a hohday, but who dId not work that day, were entItled to be paid for the hohday accordIng to the terms of the agreement The decIsIOn In Andres Wznes would seem to IndIcate the Issue to be determIned here IS whether there eXIsts a "reasonable nexus" between the hohday pay claimed and the perfonnance of work, In the case of employees covered by the collectIve agreement on Good Fnday or Easter Monday A final nllIng 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) The final rulIng on tlus matter IS contaIned In the tlurd decIsIOn, dated March 8, 2004 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 performed 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 falhng In tlus 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 stnke, 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 perfonnance of work and the benefit claimed. Indeed, for both emergency and essentIal workers, the nexus between work performed 4 and benefit claimed IS much stronger than It was In Andres Wzne5,' 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 (page 4 and 5) II The Issue now raised by the employer Involves certaIn correctIOnal workers As a response to the strike, employees In correctIOnal facIlItIes were dIvIded Into two groups, wIth essentIal servIces beIng provIded by one group for the first penod of two weeks, then by the other group for the next two weeks, and so on Dunng any two-week penod when a partIcular group of employees was not provIdIng essentIal servIces, they could be called upon as emergency workers The dIspute at hand concerns only those correctIOnal employees who, dunng the two-week penod when a hohday fell, were not scheduled to provIde essentIal serVIces but were reqUIred to be aVailable for emergency response The employer contends such a person should be treated as an emergency employee for the purpose of hohday pay AccordIng to thIS hne of argument, he or she would not have been covered by the collectIve agreement on the hohday, unless It fell In the Interval between the employee beIng notIfied of an emergency assIgnment and the completIOn of that work. RelYIng upon the desIgnatIOn of correctIOnal workers to provIde not only emergency servIces but also essentIal ones, the umon contends as essentIal workers they were covered by the collectIve agreement for the entIre duratIOn of the stnke, so long as they worked at any tIme dunng It Counsel for the employer submIts tlus Issue was not detennIned by prevIOUS decIsIOns deahng wIth the apphcatIOn of the condItIons document In support of the posItIOn now advanced, counsel rehes upon the CorrectIOns BargaInIng Umt Master Agreement for EssentIal ServIces, dated October 30, 2001 [the correctIOns 5 master agreement] and upon the decIsIOn In Mlnzstry of Solzcltor General and CorrectlOnal Servlces and OPSEU (Burns), decIsIOn dated July 23, 1996, GSB FIle No 823/96 (Roberts) Umon counsel submIts the Issue at hand has already been determIned In favour of hIS chent In the alternatIve, counsel contends the employer's rehance upon the Burns decIsIOn and the correctIOns master agreement IS not well founded. III I agree wIth umon counsel that the questIOn posed by the employer has already been answered by my earher nllIngs CorrectIOnal workers were desIgnated as both essentIal and emergency workers By vIrtue of theIr desIgnatIOn to provIde essentIal serVIces, they were covered by the collectIve agreement throughout the work stoppage, If they performed any work dunng It ThIS conclusIOn flows from the thIrd paragraph of my first decIsIOn reproduced above AccordIngly, there IS no need for me to comment further Nonetheless, as the Issue IS an Important one, I offer the folloWIng comments I was referred to two paragraphs In the correctIOns master agreement, the relevant parts of whIch state 2 ThIS Memorandum of Agreement IS subJect to the defimtIOns, prIncIples and terms as set out In the [condItIons document] 11 Employees are only deemed to be essentIal for the day/rotatIOnal penod dunng whIch they are reqUIred to perform essentIal work, at all other tunes they are on the Emergency ServIces EhgibIhty LISt The employer's argument IS based upon paragraph 2 The essence of the argument IS that correctIOnal workers lost theIr status as essentIal employees when on the emergency part of theIr rotatIOn The umon's response IS based upon paragraph 2 NotIng tlus prOVISIOn renders the correctIOnal master agreement "subJect to" the 6 condItIons document, counsel asserts paragraph 11 of the latter cannot dImInISh the scope of coverage under the collectIve agreement specIfied by the fonner I agree As to the Burns decIsIOn, I have already ruled that It has no beanng upon collectIve agreement coverage for essentIal employees In the first decIsIOn, I wrote I turn now to consIder [coverage under the collectIve agreement for] employees desIgnated to perform essentIal serVIces Does the Burns decIsIOn offer any gUIdance on tlus subJect? The gnevor In that case rotated between beIng aVailable to work as an emergency employee In one two-week penod and workIng as an essentIal employee In the next He belonged to the group of employees slated to begIn perfonnIng essentIal servIces In the thIrd week of the strike When he went to the dentIst on the second day of the work stoppage, he was slated to provIde essentIal servIces In less than two weeks The effect of the decIsIOn In Burns was to deny hun reImbursement for a dental expense Incurred In the Interval between the scheduhng and performance of essentIal work, even though he would have been reImbursed for a sunIlar expense Incurred between the scheduhng and performance of emergency work. Vlce-Chazr Roberts analysls zn Burns acknowledges the grzevor's role as an essentzal employee, but makes no mentlOn of the dental appozntment occurrzng whzle he was scheduled to do essentzal work. As well as glosszng over thlsfact, the Burns declslOn does not clte any prOV1SlOn, from elther the condltlOns document or the correctlOns umbrella agreement, 5,pecrlj;zng how the collectlve agreement applzes to employees performzng essentzal servlces The declslOn lS based excluslvely upon prOV1SlOns zn the umbrella agreement dealzng wlth emergency employees For these reasons, I conclude the rulzng zn Burns provldes no authorztatlve gUldance as to the proper treatment of essentzal employees, even zn the context of the 1996 strzke (pages 15 and 16, emphasIs added) IV Two matters remaIn to be addressed the tuneframe for unplementatIOn of the decIsIOns In thIS matter; and whether Interest should be paid on money OWIng The umon requests an order dIrectIng the employer to Implement my rulIngs wItlun 30 days, whereas the employer suggested 60 days would be more appropnate The 7 partIes agreed to a schedule for deahng wIth the matter of Interest, wIth InItIal submIssIOns by May 31 and reply submIssIOns by June 7 Employer counsel noted a tuneframe for unplementatIOn that reqUIred the prIncIpal to be paid before the dIspute about Interest has been resolved would necessItate two payments for each employee, In the event Interest IS awarded. I dIrect the employer to Implement my ruhngs wItlun SIxty days of the date of tlus decIsIOn Dated at Toronto tlus 14th day of May 2004 e /....~~. IRIchard Brown VIce-Chair