HomeMy WebLinkAbout2003-0232.James et al.03-09-24 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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GSB# 0232/03
UNION# 2002-0340-0020
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(James et al) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of FInance) Employer
BEFORE Randy H. Abramsky Vice-Chair
FOR THE UNION GavIn Leeb
BarrIster and SOlICItor
FOR THE EMPLOYER Sean Kearney
Counsel
Management Board Secretanat
HEARING September 10 2003
2
AWARD
ThIS case Involves a group gnevance filed by five System ServIces SpecIalIsts WIth
the Mimstry of FInance The gnevors, who are Schedule 6 employees, allege that they have
been demed call-back pay whIle provIdIng authonzed on-call duty for the Employer
At the outset of the heanng, the Employer moved to dIsmIss the gnevance based on
the extensIve case law of the Gnevance Settlement Board that Schedule 6 employees are not
entItled to call-back pay The Umon asserts that changes In the new collectIve agreement and
a change In the gnevors' schedule of work renders the Board's case law dIstIngUIshable and
reqUIres a heanng on the ments
Facts
There IS no "agreed statement of facts" per se but there are a number of undIsputed
facts The gnevors are all System ServIces SpecIalIsts, classIfied as System Officer 4's, wIth
the Mimstry of Finance They are Schedule 6 employees They perform techmcal support to
the Mimstry's maInframe computer The PosItIOn DescnptIOn Report states that the
Incumbents are "responsIble for techmcal planmng, delIvery and maIntenance of maJor
techmcal support servIces, conductIng productIOn servIces for the mImstry and provIdIng on-
call support " It further states that employees are "[r]eqUIred to work on-call support from
remote access on a rotatIng 7 day/24 hour basIs"
3
Other than the PosItIOn DescnptIOn Report, there was no eVIdence concermng the
nature of the gnevors' work or hours The exceptIOn to thIS was an agreement that begInmng
on September 30 2002, the gnevors have been scheduled to work, on a five-week rotatIng
basIs, one week from 4 30 pm. to 1230 a.m. each day followed by beIng on-call untIl 7 30
a.m.
A number of provIsIOns were added In the latest collectIve agreement concernIng
Schedule 6 employees In relatIOn to overtIme ArtIcle UN 8 - OvertIme - now reads (new
provIsIOns In ItalIcs)
UN 8 1 The overtIme rate for the purposes of thIS Agreement shall be one and
one-half(II1z) tImes the employee's basIc hourly rate
UN 8.2 1 In the assIgnment of overtIme, the Employer agrees to develop
methods of dIstnbutIng overtIme at the local workplace that are fair and
eqUItable after havIng ensured that all of ItS operatIOnal reqUIrements are met.
UN 8.2 2 In thIS ArtIcle "overtIme" means an authonzed penod of work
calculated to the nearest half-hour and performed on a scheduled workIng day
In addItIOn to the regular workIng penod, or performed on a scheduled day(s)
off
UN 8 3 1 Employees In Schedules 3 7 and 4 7 who perform authonzed work
In excess of seven and one-quarter (7 1J4) hours or eIght (8) hours as
applIcable shall be paid at the overtIme rate
UN832 OvertIme shall be paid wIthIn two (2) months of the pay penod
wIthIn whIch the overtIme was actually worked.
UN 84 Employees In Schedules 3 and 4 who perform authonzed work In
excess of seven and one-quarter (7 1J4) hours or eIght (8) hours as applIcable,
shall receIve compensatIng leave of one and one-half (1 IIz) hours for each
hour of overtIme worked, at a tIme mutually agreed upon. FaIlIng agreement,
the mImstry shall reasonably determIne the tIme of the compensatIng leave
UN 85 Where there IS mutual agreement, employee may receIve
compensatIng leave In lIeu of pay at the overtIme rate or may receIve pay at
the overtIme rate In lIeu of compensatIng leave
UN 8 6 CompensatIng leave accumulated In a calendar year whIch IS not used
before March 31 of the folloWIng year shall be paid at the rate It was earned.
4
The March 31 date may be extended by agreement at the local or mImstry
level
UN 8 7 1 Employees in Schedule 6 yt, ho peljorm authorized yt, ork in excess of
7 25 hours on a regularly schedule yt,ork day shall receive
(a) compensating leave of one-half (5) hours for each hour yt,orked betJ+een
3625 and 48 hours per yt,orkyt,eek, in respect of the total hours yt,orked during
the yt,eek on regularly scheduled yt,ork days and
(b) compensating lave of one (1) hour for each hour yt,orked in excess of 48
hours per yt,ork yt,eek, in respect of the total hours yt,orked during he yt,eek on
regularly schedltledyt,ork days.
(c) The compensating leave shall be taken at a time mutually agreed upon.
Failing agreement, the ministry shall reasonably determine the time of the
compensating leave
UN 8 72 NotJ+ithstanding UN 86 yt,here at the end of the calendar year an
employee has remaining accumulated compensating leave under UN 8 7 1 the
employee and Employer shall endeavour to agree on the scheduling of such
compensating leave in an effort to utilize the compensating leave by June 30
and neither the Employer nor employee yt,ilf unreasonably yt, ithhold
agreement. Failing agreement, the Employer shall reasonably determine the
time of the compensating leave
UN873 NotJ+ithstanding UN 8 6 compensating leave accumulated under
UN 8 7 1 in a calendar year yt, hich is not used before June 30 of the folloyt, ing
year shall be paid on a lump sum basis, at the rate it yt,as earned An
employee may be paid, on a lump sum basis, for compensating leave prior to
June 30 yt, here the employee and Employer agree On termination of
employment, or an employee assuming a permanent position outside of the
bargaining unit, an employee yt, ho has not used all of his or her compensating
leave earned under UN 8 7 1 shall be paid, on a lump sum basis, for all
remaining compensating leave hours.
UN 8 7 4 Employees who are In classIficatIOns assIgned to Schedule 6 and
who are reqUIred to work on a day off, shall receIve eqUIvalent tIme off
UN875 NotwIthstandIng ArtIcle UN 87 1 and ArtIcle UN 13 7 (HolIday
Payment) employees who are In classIficatIOns assIgned to Schedule 6 and
who are assIgned to forest fire fightIng or related dutIes, shall be paid one and
one-half (1Ilz) tImes the employee's basIc hourly rate, to be calculated on the
basIs of thIrtY-SIX and one-quarter (36 1J4) hours per week, for all such work
after eIght (8) hours In a 24 hour penod.
5
ArtIcle 9 - Call Back - remaIned unchanged In the new collectIve agreement. In
relevant part It reads
UN 91 An employee who leaves hIS or place of work and IS subsequently
called back to work pnor to the startIng tIme of hIS or her next scheduled shIft
shall be paid a mImmum of four (4) hours pay at one and one-half(II1z) tImes
hIS or her basIc hourly rate
The provIsIOn for holIday pay for Schedule 6 employees also remaIned unchanged. It
reads
UN 13 7 NotwIthstandIng anythIng In ArtIcle UN 13 employees who are In
classIficatIOns assIgned to Schedule 6 and who are reqUIred to work on a
holIday Included In ArtIcle 47 (HolIdays) of the Central CollectIve Agreement
shall receIve eqUIvalent tIme off
Also unchanged IS the defimtIOn of the vanous hours of work for the vanous
schedules of employees ArtIcle UN 2 - Hours of Work, provIdes In relevant part as follows
UN 2 1 Schedule 3 and 3 7
The normal hours of work for employees on these schedules shall be thIrtY-SIX
and one-quarter (36 1J4) hours per week and seven and one quarter (7 1J4) hours
per day
UN 2.2 Schedule 4 and 47
The normal hours of work for employees on these schedules shall be for forty
(4) hours per week and eIght (8) hours per day
UN 2 3 Schedule 6
The normal hours of work for employees on thIS schedule shall be a mImmum
of thIrty-SIX and one-quarter (36 1J4) hours per week.
There was eVIdence that on one occaSIOn, three of the gnevors were approved for and
receIved call back pay The eVIdence of the Employer would be that the payment was made
In error and that no such payments were made eIther before or SInce that tIme The Umon's
eVIdence would be that other Schedule 6 employees In the Mimstry have, on occaSIOn,
receIved call-back pay
6
Positions of the Parties
For the Employer
Mr Kearny on behalf of the Employer asserts that the case law compels the
dIsmIssal of the gnevance, regardless of the change In the overtIme provIsIOns concernIng
Schedule 6 employees or the rotatIng afternoon ShIftS that have been InstItuted. It IS the
Employer's posItIOn that the case law has clearly held that Schedule 6 employees are not
entItled to call-back pay under the collectIve agreement. The Employer submIts that nothIng
has changed whIch would alter that conclusIOn.
In support of ItS posItIOn, the Employer cItes to the folloWIng cases. OPSEU (Krete)
and Ministry of Labour (1989) GSB No 1055/88 (Venty) OPSEU (Henderson) and
Ministry of the Environment (1990), GSB No 1098/99 (McCamus) OPSEU (Baker Elilott)
and MinistlY of Labour (1990) GSB No 90/89 (KIrkwood) and OPSEU (Hill) and MinistlY
of Natural Resources (1991) GSB No 1134/90 (Wnght)
The Employer argues that the ratIOnale of the Board In these decIsIOns was that
Schedule 6 employees do not and cannot meet the essentIal elements reqUIred for receIpt of
call back pay SInce they are not "shIft workers In the tradItIOnal sense. OPSEU (Krete)
supra at p 7 In addItIOn, the Board reasoned that SInce call-back pay was a form of payment
for overtIme work, and SInce Schedule 6 employees were not elIgIble to receIve overtIme
pay "It would seem IllogIcal that such employees would be entItled to call-back pay whIch
IS a form of overtIme pay" (Krete supra at p 8)
7
In the Employer's submIssIOn, Schedule 6 employees are stIll not entItled to overtIme
pay Under UN 8 7 1 It submIts, Schedule 6 employees receIve "compensatIng leave" at a
reduced rate SImIlarly In the Employer's submIssIOn, the fact that the gnevors may
occasIOnally work afternoons, on a rotatIng basIs, does not render the gnevor's "ShIft
workers In the tradItIOnal sense" or change the fact that Schedule 6 workers do not have a
"next scheduled ShIft" wIthIn the meamng of the call-back provISIOn. AccordIngly It
submIts, that the GSB case law applIes In thIS matter and reqUIres the dIsmIssal at thIS stage
of the arbItratIOn process
For the Union
Mr Leeb on behalf of the Umon, asserts that the Board should deny the Employer's
motIOn to dIsmIss, hear the eVIdence and decIde thIS gnevance on the ments Counsel for the
Umon asserts that he was not advIsed, In advance, of the Employer's motIOn to dIsmIss and
contends that It should be demed on thIS procedural basIs alone
The Umon further asserts that the heanng should proceed because the facts upon
whIch the Board's Junsprudence IS based have changed. Now Schedule 6 employees are
entItled to overtIme, albeIt at a reduced rate, whIch It VIews as a "sea change" for Schedule 6
employees, wIth ImplIcatIOns regardIng call-back pay under UN 9 1 whIch need to be
addressed by the Board.
Further In the alternatIve the Umon asserts that the gnevors are entItled to call-back
pay SInce September 30 2002 when they were assIgned to work a specIfic afternoon shIft,
followed by a penod dunng whIch they could be called-In. The Umon submIts that the
gnevors, SInce September 30 2002, now meet the essentIal reqUIrements for call-back pay
8
wIthIn the case law of the GSB It cItes to OPSEU (Hill) supra at p 7 where the Board
states "If a Schedule 6 employee IS not employed on ShIft work, then there can be no basIs
for claimIng call back pay under ArtIcle 14 1 [now UN 9 1]" Phrased In the posItIve, the
Umon asserts that a Schedule 6 employee employed on ShIft work IS entItled to claim call
back pay In the Umon's VIew the gnevors' have been employed on ShIft work SInce
September 30 2002
Under these facts, the Umon submIts that It would be Improper and a demal of natural
JustIce to grant the Employer's motIOn to dIsmIss wIthout a heanng on the ments
Decision
Upon careful consIderatIOn of the facts, the case law and the arguments of the partIes,
I conclude that the Employer's motIOn to dIsmIss IS premature and cannot be granted at thIS
pOInt.
The case law certaInly can be read for the general proposItIOn that Schedule 6
employees are not entItled to call-back pay There IS qUIte a bIt of language, partIcularly In
Krete Henderson and Hill that seems to say that Schedule 6 employees, because of the on-
call nature of theIr work, do not have "scheduled shIfts" and therefore cannot meet one of the
essentIal elements to qualIfy for call-back pay
With the possIble exceptIOn of Henderson however the cases are actually fact-
specIfic In Krete the gnevor was an OccupatIOnal Health & Safety Inspector who spent 20
to 25% of hIS tIme at the office, 5-10% of thIS tIme workIng from home and the bulk of thIS
tIme In the field. His posItIOn was "to enforce and ensure complIance wIth the OccupatIOnal
9
Health & Safety Act and all regulatIOns thereunder " In these cIrcumstances, the Board
found that the "essentIal elements to qualIfy for call back pay are not present." (Krete supra
at p 7) The Board contInued In more broadly worded language
ArtIcle 14 1 contemplates an employee workIng a scheduled ShIft, and that an
employee has left hIS place of work and that he or she IS called back to work
pnor to the next scheduled shIft. In our VIew Schedule 6 employees reqUIred
to work a mImmum of 36 1J4 hours per week are not ShIft workers In the
tradItIOnal sense ArtIcle 7 3 makes no reference to the number of hours
worked In a gIven day SImIlarly It cannot be said that an employee has left
hIS place of work If, as the Umon suggests, the home IS one of hIS places of
work.
The Board's decIsIOn In OPSEU (Baker Elliott) supra, makes It clear that each case
turns on the applIcable facts rather than on the employee's Schedule 6 status, standIng alone
The Board In that case, at p 8 states
Call back pay IS provIded for In ArtIcle 14 1 [now UN 9 1] ArtIcle 14 1
stands on ItS own and sets out a mImmum payment for call back. As the
ArtIcle refers to the genenc "employee" It IS not lImIted to any specIfic type
of employee
However In order to obtaIn the benefits of ArtIcle 14 1 the employee must
meet the condItIOns set out In the ArtIcle Therefore, In order to receIve
entItlement to the pay the employee must (1) leave hIS place of work, (2) be
subsequently called back to work, and (3) he must be called back to work
pnor to the startIng tIme of hIS next scheduled shIft.
The Board found that the gnevors "clearly met the first two cntena as they left theIr
place of work and were called back to work." The Board determIned, however that they dId
not meet the thIrd cntena. In so rulIng, the Board determIned that the "nature of the gnevors'
work prevents the gnevors from havIng a 'next scheduled shIft. '" The Board noted that the
gnevors, OccupatIOnal Health & Safety Inspectors, spent 20 % of theIr work tIme outsIde of
the usual hours of 8 30 to 4 30 pm. It held "As the Job reqUIres the Inspectors to attend to
dutIes, such as InVestIgatIng stop orders and InVestIgatIng fatalItIes and InJunes, whIch, by
theIr very nature can occur at any tIme and not wIthIn any partIcular shIft, these employees
10
do not have a 'next scheduled shIft. '" The Board held that the term "ShIft" reflects "a
specIfied tIme of work whIch starts and ends on set tImes on a regular basIs" It found that
although the gnevors' Job had usual workIng hours, an employee mIght be late, or work at
tImes other than at the usual hours, and that the "Job has more flexIbIlIty than ShIft work."
SImIlarly In OPSEU (Hill) supra, the Board noted that even though the gnevor a
pIlot, had a "normal pre-scheduled 40 hour work week" he dId "not have to report to or
leave hIS base at specIfied tImes" and could "pretty well arrange hIS own tIme schedules
provIded he performs the work whIch IS reqUIred of hIm by the Mimstry" Under these facts,
the Board found that when the gnevor was dIrected to report to another locatIOn pnor to
when he was ongInally reqUIred to report, he "was not called back to work' pnor to the
startIng tIme of hIS next scheduled ShIft '" (Hill, supra at p 7)(emphasIs In ongInal)
At thIS pOInt In the proceedIngs, there IS InSUfficIent eVIdence In the record to make a
determInatIOn as to whether the gnevors' when assIgned to the afternoon ShIft, have a "next
scheduled ShIft" wIthIn the meamng of ArtIcle UN 9 1 With the exceptIOn of the PosItIOn
DescnptIOn, there was no eVIdence about the nature of theIr Job whether they have flexIbIlIty
or not, whether they are on-call to deal wIth computer problems and must work outsIde of the
normal hours, IncludIng specIfically scheduled hours None of thIS InformatIOn IS In the
record. Based on my readIng of the case law partIcularly OPSEU (Baker Elliott) supra, It IS
not sufficIent to rely on the status of an employee as a Schedule 6 employee What matters IS
whether under the specIfic facts, the essentIal elements reqUIred to qualIfy for call-back pay
have been met.
11
I also find It premature to determIne, wIthout addItIOnal argument, the Impact, If any
on the InclUSIOn of ArtIcle UN 8 7 1 In the collectIve agreement on the Issue of call-back pay
It may be of no Import In lIght of the fact the provIsIOn allows compensatIng leave, rather
than overtIme pay but It IS clearly a sIgmficant change Before, Schedule 6 employees were
granted compensatIng leave only when reqUIred to work on a day off, or on a holIday Now
under ArtIcle UN 8 7 1 Schedule 6 employees are entItled to compensatIng leave for hours
worked In excess of 36 5 ThIS IS a form of overtIme albeIt not In the same manner of
employees In Schedules 3 7 and 47 who are paid at the "overtIme rate" What Impact, If
any It has on the call-back provIsIOn should be left to argument. The case law relIes on the
fact that Schedule 6 employees were not elIgIble to receIve overtIme pay In decIdIng the call-
back pay Issue Consequently the sIgmficance of thIS change In the collectIve agreement
should be more thoroughly argued before a determInatIOn IS made
AccordIngly for all of the above-stated reasons, the Employer's motIOn to dIsmIss IS
demed. The heanng on the ments should be scheduled.
Issued at Toronto thIS 24th day of September 2003
HI 1,hrux5lLv~~
Randi H. Abramsky Vice-Chair