HomeMy WebLinkAbout2003-0232.James et al.04-06-09 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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GSB# 2003-0232
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 RandI H. Abramsky Vice-Chair
FOR THE UNION GavIn Leeb
BarrIster and SOlICItor
FOR THE EMPLOYER Sean Kearney
Counsel
Management Board Secretanat
HEARING Apnl 2, 2004 and May 31 2004
2
Award
At Issue IS whether the gnevors, five system ServIces SpecIalIsts WIth the Mimstry of
FInance, are entItled to call-back pay under ArtIcle UN 9 1 of the collectIve agreement. ArtIcle
UN 9 1 provIdes as follows
An employee who leaves hIS or her 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 (1 1Iz ) tImes hIS or her basIc
hourly rate
Although the gnevance was ImtIally broader the Umon subsequently lImIted the gnevors' claim
for call-back pay to penods when the gnevors are called back to work folloWIng the afternoon
"rotatIOn" (as described by the Employer) or "ShIft" (as descnbed by the Umon) There IS no
claim that the gnevors are generally entItled to call-back pay
Facts
The gnevors are all System ServIces SpecIalIsts, classIfied as System Officer 4's, wIth
the Mimstry of FInance They are Schedule 6 employees and hold qUIte an Important Job wIthIn
the Mimstry EssentIally they trouble-shoot any problems that anse In the Mimstry's maInframe
batch programs whIch run overnIght. All of the tax groups wIthIn the Mimstry run
batch/computer programs overnIght to generate tax statements, notIces, and other tax documents
whIch are sent out to the publIc Some batch programs are also run dunng the day The System
ServIces SpecIalIsts schedule and momtor these batch programs If a problem anses, the System
ServIces SpecIalIsts are called to deal wIth It. In addItIOn, dunng the day they support, develop
and Implement procedures for the vanous tax branches wIthIn the Mimstry as well as deal wIth
problems that anse The PosItIOn DescnptIOn states, In part, that employees are "[r]equned to
work on-call support from remote access on a rotatIng 7day/24hour basIs"
3
All five of the System ServIces SpecIalIsts work out of the Mimstry's head office
Histoncally they worked dunng the day Monday to Fnday between 7 30 a.m and 5 30 p.m
Some would arnve early at 7 30 a.m. and then work for 7 1J4 hours Some would arnve later and
work tIll 5 30 p.m After that, on a rotatIng basIs, someone would be "on call" to deal wIth any
problems that arose There was also a second, back-up on-call employee The "core" hours of
8 30 a.m to 4 30 p.m had to be covered, but how that was done was decIded collegIally among
the System ServIces SpecIalIsts In addItIOn, employees were "on-call" over the weekend, 7 00
a.m. to 7 00 P m. Saturday and Sunday to support batch programs run over the weekend.
Manager Network and Computer OperatIOns for the Central AgencIes Cluster Tom
Aspden testIfied that the group IS hIghly "professIOnal and Independent" and "do what's
necessary to ensure that the system works" He stated that they perform a "cntIcal busIness
functIOn" for the Mimstry and that "fleXIbIlIty" was reqUIred to meet unexpected productIOn
Issues whIch "happen regularly"
BegInmng September 30 2002, the Mimstry Implemented what It termed a "second ShIft"
from 4 30 P m. to 12 30 a.m. A memo dated September 13 2002 to staff stated, In pertInent
part, as follows
SUBJECT. On-sIte RotatIng ShIft
ThIS memo IS to confirm that begInmng September 30 2002 a second onsIte ShIft
wIll commence
The ProductIOn CoordInator who IS responsIble for supportIng mghtly batch IS
reqUIred to come Into work at 430 p.m and work tIll 1230 AM Monday through
Fnday excludIng holIdays
4
Once the 2nd ShIft has completed you are stIll reqUIred to support batch remotely
on-call and wIll be paid accordIngly to the OPSEU CollectIve Agreement.
Manager Aspden testIfied that thIS change was Implemented In order to reduce the number of
after-hours calls to staff and to provIde a qUIcker response to problems that anse HavIng
someone on-sIte, he explaIned, enables the System ServIces SpecIalIst to respond ImmedIately to
any problem.
A second, sImIlar memo was Issued on September 19 2002 That memo In pertInent
part, states
SUBJECT. On-sIte RotatIng ShIft
As per our meetIng In June 2002, thIS memo IS to confirm that begInmng
September 30 2002 a second on sIte ShIft wIll commence Once ProductIOn
CoordInator at a tIme wIll work the 2nd ShIft, whIle the rest of the team IS on the
day shIft.
The ProductIOn CoordInator who IS responsIble for supportIng mghtly batch IS
reqUIred to come Into work at 430 PM and work tIll 1230 AM Monday through
Fnday excludIng holIdays
Once the 2nd ShIft has completed you are stIll reqUIred to support batch remotely
and call back/on-call wIll be paid accordIngly to the OPSEU CollecIve
Agreement.
The current procedure IS to be followed for assIgmng ShIft schedules
Manager Aspden testIfied that the sentence statIng that call-back would be paid was a mIstake
He testIfied that there was some confusIOn at the tIme regardIng changes made to the new
collectIve agreement, IncludIng whether the employees were entItled to call-back pay In fact, In
May 2002, call back pay was paid on a number of occaSIOns He subsequently learned that
Schedule 6 employees are not entItled to call back and the practIce ceased.
5
On August 7 2003 the Mimstry Issued a memo to all OPSEU Schedule 6 Excluded and
UnclassIfied Staff In the Enterpnse Technololgy SolutIOn Staff regardIng, among other thIngs,
call back pay The memo In relevant part, states
The CAC management team has recently become aware of some Incorrect
applIcatIOn of the Call Back provIsIOns of the OPSEU CollectIve Agreements to
Systems Officers In Schedule 6 In order to remedy thIS sItuatIOn, the payment of
Call Back to OPSEU Systems Officers In Schedule 6 has been termInated. ThIS
actIOn IS In accordance wIth a decIsIOn of the Gnevance Settlement Board
(#1055/88 Krete and MOL) whIch concluded that Schedule 6 OPSEU employees
have no entItlement to the Call Back provIsIOns of the OPSEU CollectIve
Agreement. ThIS InterpretatIOn has been confirmed by Management Board
Secretanat.
There was conflIctIng eVIdence concernIng the amount of flexIbIlIty that the employees
have regardIng the afternoon shIft and whether It was matenally dIfferent than the day shIft.
AccordIng to Harry James, who has worked the ShIft on a rotatIOnal basIs, there IS no real
flexIbIlIty In terms of the hours on the afternoon, unlIke on the day shIft. Employees, he stated,
are expected to arnve by 4 30 p.m and work untIl 1230 a.m ThIS IS true even when a problem
anses dunng the mght whIch reqUIres tIme to solve In hIS VIew the employee IS stIll expected
to report at 430 p.m the next day On cross-eXamInatIOn, he acknowledged that thIS was true on
the day shIft as well - an employee could work late or have to log-In after hours, yet stIll report
to work on tIme the next mormng. He agreed that employees come In early and work late If they
are workIng on a problem and that thIS was due to the "nature of the Job" He testIfied that In
that sItuatIOn, you "don't leave at 12 30 even though the ShIft IS fimshed." He agreed, on cross-
eXamInatIOn, that even though the day ShIft hours were not set In stone, employees generally
needed to be around those hours Further If an employee left for a doctor's appoIntment, they
could be reached by cell-phone, whether on the day or afternoon shIft. On re-eXamInatIOn, he
testIfied that If an employee went In earlIer than 4 30 P m. he could "not generally" leave before
12 30 a.m
6
Manager Aspden testIfied that the nature of the work on the day and the afternoon
"rotatIOns" were the same, and that both were flexIble, dependIng on the problems that arose
An employee mIght need to come In a lIttle earlIer or stay a lIttle later If an employee worked
late, he or she "need not come In bnght and early the next day" but could "come In a couple of
hours later If they chose" There IS no eVIdence, however that thIS was conveyed to employees
In regard to the afternoon rotatIOn, or that It occurred In practIce He also testIfied that "core
hours" had to be covered. For the day rotatIOn, the core hours were 8 30 a.m to 4 30 pm. and
for the afternoon rotatIOn, the core hours were 430 p.m to 1230 a.m When at full complement,
four employees worked the day ShIft, and one employee worked afternoons, on a rotatIng basIs
In Mr Aspden's VIew the rotatIOns Involved wIth the System ServIces SpecIalIsts are
markedly dIfferent than the 12-hour ShIftS worked by the Schedule 3 System Officers Those
employees work from 7 00 a.m. to 7 00 p.m and then are replaced by another group of System
Officers who work 700 p.m to 700 a.m. He referred to these as "hard ShIftS" wIth a
"handover" to another group
The collectIve agreement sets out the hours of work for the employees In dIfferent
schedules 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 forty (40)
hours per week and eIght (8) hours per day
UN 2 3 Schedule 6
7
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.
A number of provIsIOns were added In the latest collectIve agreement concermng
Schedule 6 employees SpecIfically ArtIcles UN 8 7 1 was added. It provIdes
Employees In Schedule 6 who perform authonzed work In excess of 7 25 hours
on a regularly scheduled work day shall receIve
(a) compensatIng leave of one-half ( 5) hours for each hour worked between 3625
and 48 hours, In respect of the total hours worked dunng the week on regularly
scheduled work days, and
(b) compensatIng leave of one (1) hour for each hour worked In excess of 48 hours
per work week, In respect of the total hours worked dunng the week on regularly
scheduled work days
(c) The compensatIng leave shall be taken at a tIme mutually agreed upon. FaIlIng
agreement, the mImstry shall reasonably determIne the tIme of the compensatIng
leave
Under UN 8 7 4 of the collectIve agreement, Schedule 6 employees who are reqUIred to work on
a day off, "shall receIve eqUIvalent tIme off" Under UN 875 employees In Schedule 6 who
"are assIgned to forest fire fightIng or related dutIes, shall be paid one and one-half (1 IIz) 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." UN 13 7 states
that" [n]otwIthstandIng 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"
There IS a substantIal dIfference In monetary entItlement between the partIes' posItIOns
Under the Employer's approach, If an employee IS reqUIred to assIst WIth a problem dunng the
hours of 1230 a.m. to 7 30 a.m. he or she IS paid compensatory tIme under UN 8 7 1 at the rate
of one-half hour for each hour worked for hours worked beyond 36.25 In the week, up to 48
8
hours per week, and then on a 1 1 basIs thereafter Under the Umon's VIew for a call-back under
UN 9 1 employees are entItled to SIX hours pay
Positions of the Parties
The Union
The Umon argues that UN 9 1 IS a general provIsIOn, applIcable to all employees who
meet the terms of that provIsIOn, IncludIng the gnevors It submIts that the gnevors' Schedule 6
status IS Irrelevant, as determIned In the decIsIOn denYIng the Employer's earlIer motIOn to
dIsmIss OPSEU (James et al) and MinistlY of Finance GSB No 0232/03 (September 24 2003)
It also relIes on OPSEU (Graham et al.) and Ministry of Labour (1991) GSB No 160/90 et al
(Kennedy) for the VIew that Schedule 6 employees are entItled to provIsIOns of general
applIcabIlIty
In the Umon's VIew any relIance by the Employer on the earlIer cases whIch relIed on
the employees' Schedule 6 status or the fact that Schedule 6 employees were not entItled to
overtIme can no longer be maIntaIned. In the Umon's VIew the compensatory leave set out In
UN 8 7 lIS a form of overtIme
In thIS case, the Umon contends that what matters IS whether or not the three cntena set
out In UN 9 1 have been met. It asserts that the eVIdence establIshes that the three reqUIrements
for entItlement to call-back pay were met by the gnevors (1) the gnevors left theIr place of work
(2) they were subsequently called back to work, (3) and they were called back to work pnor to
the startIng tIme of theIr "next scheduled ShIft"
9
The Umon submIts that the afternoon ShIft IS, Indeed, a "scheduled ShIft" wIthIn the
meamng of UN 9 1 CItIng the defimtIOn of "shIft" in OPSEU (Baker Elliott) and Ministry of
Labour (1990), GSB No 90/89 (KIrkwood) at p 9 as a "specIfied tIme of work whIch starts and
ends on set tImes on a regular basIs" the Umon asserts that the afternoon ShIft meets that
defimtIOn. It starts at 4 30 p.m and ends at 12 30 a.m. Any tIme worked before or after counts
toward overtIme It asserts that the fleXIbIlIty enJoyed by employees In regard to the day ShIft IS
absent In relatIOn to the afternoon ShIft SInce the "core hours" of 4 30 p.m to 12 30 a.m must be
worked.
In terms of any dIscrepancIes between the eVIdence of Mr Aspden and Mr James, the
Umon asserts that the eVIdence of Mr James should be preferred, based on hIS supenor first-
hand knowledge formed by performIng the Job It also notes that Mr James's testImony was
consIstent WIth the two memos Issued by the Employer In September 2002, whIch state that the
employees are "reqUIred" to work from 430 P m to 1230 a.m The Umon further contends that,
operatIOnally It makes sense that there would not be fleXIbIlIty SInce there IS an operatIOnal need
for someone to be there untIl 12 30 a.m
FInally the Umon contends that In other cases, Schedule 6 employees who work a
specIfic shIft have been provIded call-back pay by the Employer CItIng OPSEU
(Gallucci Ansell Cappuccitti) and Management Board Secretariat (1996) GSB No 1262/93 et
al (Bnggs)
The Umon asserts that the purpose of call-back pay - to compensate employees for the
Inconvemence of havIng to work dunng theIr off-duty hours - applIes to the sItuatIOn of the
gnevors In support, It cItes to OPSEU (Elliott) and MinistlY of Labour (1999), GSB No
10
1282/97 (Bnggs) and OPSEU (Koncz) and Ministry of Community and Social Services (1989),
GSB No 0748/88 (Venty)
The Employer
The Employer asserts that the collectIve agreement IS clear that Schedule 6 employees are
never entItled to call-back or premIUm overtIme pay The only exceptIOn to thIS IS the specIfic
provIsIOn for Schedule 6 employees fightIng forest fires, whIch IS clearly InapplIcable It asserts
that what the Umon IS askIng for through thIS decISIOn, IS to provIde the gnevors wIth a
contractual benefit - premIUm overtIme pay - that It has never obtaIned at the bargaInIng table or
from the GSB before In relatIOn to Schedule 6 employees
The Employer asserts that the Board should not Ignore the pnor case law whIch set out
gUIdIng pnncIples It argues that the provIsIOn of compensatIng leave for work performed by
Schedule 6 employees In excess of 7 1J4 hours of work per day as set out In UN 8 7 1 does not
negate the pnor case law but Instead, reInforces the VIew that Schedule 6 employees are not
entItled to overtIme at a premIUm rate It submIts that call-back pay IS precIsely that - overtIme
at a premIUm rate It submIts that hIstoncally Schedule 6 employees have long receIved
compensatory tIme off for extra work, and UN 8 7 1 was not a "sea change" In that regard, as
asserted by the Umon. There IS stIll no premIUm overtIme pay for Schedule 6 employees
The Employer further argues that there was a change In ArtIcle UN 9 In the most recent
collectIve agreement, but It had nothIng to do wIth Schedule 6 employees Instead, SectIOn 9 2
was added. Under It, employees no longer physIcally have to return to the workplace In
addItIOn, the ImtIal call back and any subsequent calls dunng the same four-hour penod "wIll be
11
treated as a sIngle' call back to work' for pay purposes" Yet, It asserts, there was no change to
expand the provIsIOn to Include Schedule 6 employees
The Employer contends that for a new financIal benefit to apply the partIes must use clear
and uneqUIvocal language, and that the onus rests wIth the Umon to establIsh such entItlement.
It notes that the call-back provIsIOn would reqUIre the Employer to pay substantIally more for the
same work than under UN 8 7 1 compensatory leave and contends that express language would
be reqUIred to award such a substantIal benefit. It asserts that the Umon faIled to meet ItS onus
In support, It cItes to Re Noranda Mines Ltd (Babine Division) and United Steehwrkers of
America, Local 898 [1982] 1 W.L AC 246 (Hope) Re Canada Post Corp and C UP W
(Schlossel) (1993) 39 LAC (4th) 6 (BIrd) Re Cardinal Transportation B C Inc and C UP.E,
Local 561 (1997) 62 L.AC (4th) 230 (DevIne)
FInally the Employer asserts that the type of work performed by the gnevors cannot be
descnbed as "ShIft work" As In the earlIer GSB decIsIOns In relatIOn to thIS Issue, the Employer
argues that a sIgmficant percentage of the gnevors' work IS performed outsIde of regular hours
It notes that there are penod of hIgh demand and pen ods of no demand, and that need for the
gnevors' servIces can anse at any tIme not Just theIr regular hours It notes that they do not
clock In or out, or need to report In. They work Independently and autonomously They do not
"replace" another System ServIces SpecIalIsts when they report to work, and they can leave as
long as they are reachable by cell phone It asserts that the gnevors have more flexIbIlIty than
employees In a tradItIOnal ShIft Job and regularly work at tImes other than theIr usual hours In
the employer's VIew they are hIghly specIalIzed, professIOnal employees who do not perform
"shIft" work In the true sense In support of ItS posItIOn, the Employer relIes on OPSEU
(H ender son) and MinistlY of Energy (1990), GSB No 1090/89 (McCamus) OPSEU
12
(Baker Elliott) and Ministry of Labour supra; OPSEU (Krete) and Ministry of Labour (1989)
GSB No 1055/99 (Venty) OPSEU (Hill) and Ministry of Natural Resources (1990), GSB No
1134/90 (Wnght)
The Employer further asserts that there IS no sIgmficant dIfference between the day and
afternoon rotatIOns The employees perform the same type of work and face the same
expectatIOns and realIty They often work for more than 8 hours, regardless of theIr startIng
tIme whIch IS consIstent WIth the "on-call" nature of theIr work. In the Employer's VIew It IS
unreasonable to assert that addIng a second afternoon rotatIOn transformed the gnevors out of
Schedule 6 The Employer argues that there IS no provIsIOn In the collectIve agreement
recogmzIng IntermIttent shIft work.
The Employer further argues that the change In the Umon's posItIOn to lImIt the gnevors'
claim for call-back pay to the afternoon rotatIOnal shIft was a strategIc one, desIgned to make It
more palatable to the Board to permIt a restncted entItlement to call-back pay In lImIted
cIrcumstances In the Employer's VIew that approach IS really the "thIn edge of the wedge" to a
claim for broader entItlement.
Decision
In my earlIer decIsIOn In thIS case concermng the Employer's motIOn to dIsmIss, I
determIned that the gnevors' status as Schedule 6 employees IS not determInatIve of the Issue of
entItlement to call-back pay The DecIsIOn, at p 10 states
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.
13
After consIdenng the cloSIng arguments of the partIes, I am stIll of that VIew
The Board's decIsIOn In OP SEU (Graham et al.) and Ministry of Labour supra, supports
that determInatIOn, as does the Board's decIsIOn In OPSEU (Baker Elliott) supra In the latter
case, at p 8 the Board stated that "[a]s the artIcle refers to the genenc "employee" It IS not
lImIted to any specIfic type of employee" In Graham at Issue was whether Schedule 6
employees had any entItlement to eIther on-call or stand-by pay The Employer argued that
Schedule 6 employees, for a vanety of reasons, could never be entItled to those provIsIOns The
Board held at p 15 that there IS not "a totally dIfferent and separate regIme set down for
Schedule 6 employees, but rather the Issue was whether or not a partIcular artIcle on ItS language
was Intended to apply to a Schedule 6 employee" The Board contInued at p 16
In consIdenng the specIfic language of the ArtIcles beIng consIdered In thIS
arbItratIOn to determIne If they were Intended to apply to Schedule 6 Employees,
we belIeve that we should approach that task on the basIc premIse that collectIve
agreement language confernng benefits on employee wIll be Intended to benefit
all employees who are subJect to the collectIve agreement In the absence of
specIfic exclusIOnary language for a partIcular group of employees or some
IndIcatIOn that In the employment context those employees could not have been
Intended to be benefited by the SectIOn.
In thIS regard, there are many places In the collectIve agreement where the partIes
specIfically refer to the employees' "schedule" In conferrIng benefits ArtIcle UN 9 IS not such a
provISIOn. It deals wIth, as the Board In OPSEU (Baker Elliott) supra stated, "the genenc"
employee Consequently the questIOn of entItlement IS not determIned by the employees' status,
but by whether or not they meet the terms of the provISIOn.
ThIS rulIng IS not to suggest that the gnevors' Schedule 6 status IS Irrelevant. In my VIew
It IS hIghly relevant because that status relates to the nature of the work performed by the
gnevors and Impacts the determInatIOn of whether the gnevors' have a "next scheduled ShIft"
14
wIthIn the meamng of ArtIcle UN 9 1 In thIS case, there IS no questIOn that the gnevors' meet
the first two cntena set out In ArtIcle UN 9 1 There IS no dIspute that the gnevors' left theIr
workplace and were called back to perform authonzed work, albeIt remotely from home The
dIspute centers on whether they were called back "pnor to the startIng tIme of hIS or her next
scheduled ShIft "
For a number of reasons, thIS IS qUIte a dIfficult determInatIOn to make In thIS case On
the face of It, partIcularly the two memos Issued by the Employer In September 2002, It sure
looks lIke the gnevors, on a rotatIng basIs, are assIgned to work a specIfic shIft from 4 30 p.m to
12 30 a.m. Monday to Fnday The memos even use the term "ShIft" rather than the term
"rotatIOn" that the Mimstry used at the heanng. The eVIdence IS clear that Mr James understood
that those were reqUIred hours, and even Mr Aspden testIfied that those were "core hours" for
whIch coverage was reqUIred. The flexIbIlIty that Mr Aspden talked about - If an employee
worked late, he could then come In later - does not seem to have been relayed to the staff, nor IS
there eVIdence that It was Implemented In regard to the afternoon work.
The dIfficulty wIth leavIng the analysIs at that IS the eVIdence In the record concernIng
the nature of the gnevors' work and the fact that theIr work often reqUIres them to work outsIde
of the standard hours EssentIally a sIgmficant proportIOn of the gnevor's work IS to fix
problems that develop wIth the batch programs and computer system, so that system keeps
workIng 24/7 Those problems develop wIth some frequency but unpredIctably whIch often
reqUIres the gnevors to work late or come In early The length of any partIcular workIng day IS
unpredIctable, whether the employee IS workIng dunng the day or In the afternoon. In lIght of
that, It IS dIfficult to conclude that the gnevors have "a specIfied tIme of work whIch starts and
15
ends on set tImes on a regular basIs. OPSEU (Baker Elliott) supra at p 9 Even wIth the
reqUIred "core hours" the sItuatIOn IS more flUId than that.
The sItuatIOn of the gnevors appears to be qUIte dIfferent than the Schedule 6 employees
In OPSEU (Gallucci Ansell Cappaccitti) supra even through the gnevors there appear to
perform sImIlar work. In that case, when the Employer moved to a 24-hour operatIOn the
employees opted to work a 12-hour shIft. The 12-hour ShIft was desIgned to correspond to the
ShIft worked by Data Base TechmcIans, who are Schedule 3 employees PrevIOusly the gnevors
had worked daytIme hours, wIth fleXIbIlIty as long as there were employees avaIlable to respond
to call s After they moved to a 12-hour shIft, the eVIdence showed that theIr schedules were
"predIctable" The Employer paid them call back pay If they were called Into work pnor to the
commencement of theIr next shIft. It should be noted, however that the Issue In that case dId not
Involve the gnevors' entItlement to call-back pay but whether or not the GSB had JunsdIctIOn to
reqUIre the Employer to reVIse the employees' Schedule 6 status
The eVIdence here showed that the nature of the work that the gnevors perform IS largely
the same on both the day and afternoon ShIftS What makes the afternoon ShIft less flexIble IS the
fact that only one employee works It. That IS what necessItates theIr beIng there dunng the core
hours, not the fact that they have a set schedule But even then, when a problem anses, they
often work beyond the core hours
The fact that the extra tIme worked IS now consIdered "overtIme" under UN 8 7 1 does
not convert the employees' regularly scheduled hours Into a set shIft. The overtIme
compensatIOn IS recogmtIOn that, generally a Schedule 6 employee IS to work a 7 1J4 hour day
and 37 1J4 hours per week but that the actual tIme worked may often be more The gnevors here
16
work, as reqUIred, to solve the problems that anse In the computer/batch system. They do not get
to leave when the "ShIft" ends
Although the Issue IS very close based on the eVIdence in its totality I conclude that the
gnevors, when they are assIgned to the afternoon rotatIOn (or "ShIft") do not have a "next
scheduled ShIft" wIthIn the meamng of ArtIcle UN 9 1 The gnevors' work, qUIte often, does not
have "a specIfied tIme of work whIch starts and ends on set tImes on a regular basIs" Due to the
nature of theIr work, the length of any partIcular work day IS unpredIctable It may start before
4 30 pm. and contInue after 1230 a.m The gnevors "are not ShIft workers In the tradItIOnal
sense." OPSEU (Krete) and Ministry of Labour supra at p 7 They certaInly have regular
hours, but often theIr work reqUIres them to work at other tImes as well
Conclusion
For all of the reasons set forth above, I conclude that the reqUIrements for entItlement to
call-back pay have not been establIshed. The gnevance must therefore be dIsmIssed.
Issued thIS 9th day of June, 2004 In Toronto