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HomeMy WebLinkAbout2008-1169.Couture et al.09-02-26 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-1169 UNION#2008-0669-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Couture et al) Union - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION Don Martin Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Omar Shahab Counsel Ministry of Government Services HEARING February 17, 2009. 2 Decision [1] Mr. Frank Couture and Mr. Atul Ratra are employed by the employer as Senior Technical Consultants (classified as Systems Officer 6). Mr. Grant McMartin is employed as Systems Administrator (Classified as Systems Officer 5). They have filed a group grievance alleging that the employer had contravened article UN 9.1 of the collective agreement by failing to pay them call-back pay. The grievors are Schedule 6 employees. [2] Article UN 9.1 reads as follows: An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours pay at one and one-half (1½) times his or her basic hourly rate. [3] Employer counsel conceded that in the instances for which call-back pay is claimed, the grievors were called back to work after they had left their place of work as contemplated in the article. The dispute surrounds whether they were ?called back to work prior to the starting time of his or her next scheduled shift?. He takes the position that these grievors do not have fixed shifts or shift starting times. In other words, they do not perform shift work. It is submitted that in such circumstances there is no entitlement to call-back pay under article UN 9. The union does not dispute that as a pre-condition of entitlement, the grievors must have shifts within the meaning of article UN 9.1. Its position is that these grievors meet that requirement. In other words, they have shifts with set start and end times. [4] My task, therefore, is to determine the proper interpretation of the language in question and to apply it to the evidence before me. The union, with the employer?s consent, led evidence from Mr. Couture, as representative of all three grievors. The employer called Mr. David Chadbourne, Manager of Enterprise E-mail Services, who is the manager of the grievors. [5] The evidence is that 17 employees, comprising ?a group? (including the three grievors) are managed by Mr. Chadbourne. The members of this group maintain and support the e- 3 mail system for the entire Ontario Public Service. The grievors are highly qualified technical specialists, and provide a vital service for the Ontario government. [6] Mr. Couture?s testimony-in-chief Mr. Couture testified that his work station was located in a cubicle. He testified that his hours of work were from 8:00 a.m. to 4:00 p.m. When asked how those hours were established, Mr. Couture replied that when he first came into Mr. Chadbourne?s group he was asked to choose between work hours of 8:00 a.m. to 4:00 p.m. or 9:00 a.m. to 5:00 p.m., and that he chose the former. Since then he had always worked 8:00 a.m. to 4:00 p.m. He testified that once he had chosen those hours, there was no flexibility to change work hours, unless pre-arranged with management. [7] Employees in the group work between 6:00 a.m. and 8:00 a.m. on Wednesday mornings performing changes to the system. When they do that, it is on the basis of voluntary overtime, and the time is paid at the applicable over time rates. In addition, they perform scheduled overtime work outside the regular hours. [8] Mr. Couture testified that he did not work past 4:00 p.m. unless there had been some breakdown in the system in the afternoon. In those instances he would stay late as required to fix the problem. All time worked after 4:00 p.m. would be claimed and paid as overtime. He testified that it was rare for him to work past 4:00 p.m., except for scheduled overtime. [9] The evidence is that, of the 17 employees, 6 are registered on the on-call rotation. At any given time two are designated as ?on-call?. Mr. Couture testified that even if he was not ?on-call?, if a manager calls during off hours, he answered if at all possible. He testified that when designated as ?on-call?, his personal life is restricted. For example, he has to carry his employer issued pager and cannot be consuming alcohol. For the period of on call, he received a premium of one dollar an hour. [10] However, if his pager rings in fact while ?on-call?, he is expected to call back and get instructions on what the problem is. According to Mr. Couture, the calls generally do not 4 require him to attend at the workplace. Ninety percent of the time, the problem can be fixed by computer at home. [11] Mr. Couture?s cross-examination Mr. Couture agreed on cross-examination that he does not punch in/out on a punch clock. Nor did he sign in/out on his computer when starting or leaving work. He did not believe that the employer tracked his start/end times by monitoring his computer. [12] Mr. Couture further stated that, if he needed to take time off during his 8:00 a.m. to 4:00 p.m. shift, he needed to obtain management approval. Moreover, he had to account for the time off taken, by using accumulated vacation or in-lieu time. He recounted one instance when he requested permission to leave one half hour early to attend a dentist appointment and was told by his supervisor to record it on the WIN system as time off, and to cover that period with vacation or in lieu time. He also recounted that one of his co-workers, Mr. Paul Cayen, had requested to come a couple of hours late to work because he wanted to wait for a courier delivery he was expecting, and Mr. Cayen was told to take that time as vacation time. [13] Mr. Couture agreed that on one occasion he worked out of his home, when due to certain personal reasons he preferred to do so.He requested that, and it was approved. He worked out of his home and was paid for that time at his regular rate. However, Mr. Couture pointed out that his work hours that day remained to be 8:00 a.m. to 4:00 p.m., and that the only change was where he performed the work. When counsel suggested to Mr. Couture that Mr. Chadbourne would approve any request to work at home for reasonable personal reasons, Mr. Couture disagreed. He pointed out that at the time of his own request, Mr. Paul Cayen had also requested to work out of his home, and that Mr. Cayen?s request was denied, while his was approved. [14] Mr. Couture agreed that he did not punch in/out when he left for his lunch break. He stated that lunch break was usually one hour, but that it can vary. Frequently he ate at his desk, but always took the one hour period to relax or read a book. On further questioning, he agreed that on very busy days the lunch break can be shorter than one 5 hour. But it can never be longer. He agreed that whether his lunch break was one hour or shorter, his pay did not change. [15] Mr. Couture agreed that on occasion, when required, he would work past 4:00 p.m. However, he testified that he could not recall ever not claiming overtime for time worked after 4:00 p.m. Mr. Couture did not recall ever starting work earlier than 8:00 a.m., except on Wednesday mornings when he did changes to the system. [16] Mr. Couture confirmed his testimony-in-chief that even if he was not on call, if a manager calls him due to an emergency, he would respond if possible. He testified that he would do so because ?its been asked of us and we are professionals?. [17] Mr. Chadbourne?s testimony-in-chief When employer counsel asked Mr. Chadbourne when he expected his employees to start and finish work, he replied that it varied between 8:00 a.m. to 9:00 a.m. and 4:00 p.m. to 5:00 p.m. He stated that employees are expected to work 7.25 hours per day. When asked whether employees are expected always to start at 8:00 a.m. or 9:00 a.m., he replied that ?there was nothing in writing stating that?. He testified that if an employee worked from 8:30 a.m. to 4:30 p.m. he would have no problem. When asked if anyone started work before 8:00 a.m., he stated that one or two may be doing that, but added that he does not personally monitor when employees start and finish. He testified that if an employee starts work at 7:30 a.m. one day, at 8:00 a.m. the next, and 8:30 a.m. the next, he would have no objection as long as the work gets done. However, he stated that employees do try to start at the same time every day, and commented that Mr. Couture tended to do that because he car pooled. He believed that some employees start and end work at varying times. [18] Mr. Chadbourne testified that he could not recall directing employees in writing or verbally as to when they may take their lunch breaks. When asked whether employees take a lunch break longer than one hour, Mr. Chadbourne replied that he does not stand at an employee?s desk and watch when he leaves and returns, and added that ?there is a good chance? that some take longer lunch breaks. Since his group is very hard working, he had seen no reason to direct them that lunch is only one hour. Sometimes employees 6 say that they need more time and he allows that. He repeated that he did not closely monitor when employees leave and return. He testified that even if it was possible to monitor employee start/end times through the computer, he had no reason to, and did not, do that. He was not aware of any employee being disciplined for taking a lunch break exceeding one hour. [19] Employer counsel referred to an occasion when Mr. Couture had responded to an e-mail sent to the group during off hours due to an emergency, even though he was not ?on-call? at the time. Mr. Chadbourne was asked ?so even though not on-call, there was still an obligation on him to be available??. Mr. Chadbourne replied, ?As a professional yes. Not everyone responded though. It was only a request?. He added that most of the employees responded because they were ?serious professionals?. Mr. Chadbourne testified that other than for purposes of overtime pay and ?on-call? pay, the grievors are not paid by the hour. They are paid on the basis of 7.25 hours of work per day. [20] Mr. Chadbourne?s cross-examination Mr. Chadbourne agreed that the grievors report to an AMAPCEO supervisor on a day to day basis. They receive their work assignments from that supervisor. He also agreed that the grievors get approval for time-off from their team lead, although Mr. Chadbourne is always copied. When suggested that if one or two employees start work before 8:00 a.m. as he believed, they would consistently start before 8:00 a.m., Mr. Chadbourne disagreed. Mr. Chadbourne was asked by union counsel ?Are you saying that they can start at any time on any given day??. He replied ?If everyone started at 7:30 a.m. I?ll have a problem?. Mr. Chadbourne was asked whether he contradicted Mr. Couture?s testimony that he regularly started at 8:00 a.m., Mr. Chadbourne replied that if Mr. Couture did that, he did that at his own discretion, because he had not directed Mr. Couture to do so. [21] Mr. Chadbourne was asked whether he ever inquires why an employee is not at his desk during regular hours. He replied that he may do so if he was trying to locate an employee, and he was not at his desk. He agreed that the ?normal expectation? is that employees ?will be in their cubicle each day?. When asked again whether an employee can start at any time between 8:00 a.m. and 9:00 a.m. on any given day, Mr. Chadbourne 7 replied that that is what he had stated in the response at step one of the grievance procedure. [22] In re-direct Mr. Chadbourne agreed, when asked whether it was his evidence, that the consistent practice was that start time can vary between 8:00 a.m. and 9:00 a.m. When asked whether that practice had ever been communicated in writing, Mr. Chadbourne reiterated that he had communicated that in the response to the grievance at stage one. , 1055/88 (Verity); Re [23] Employer counsel submitted the following authorities: Re Krete Hill, 1134/90 (Wright); Re Henderson, 1090/89 (McCamus); Re Baker/Elliott, 90/89 (Kirkwood); Re Hymers et al, 2002-0104 etc. (Kirkwood); Re James et al (No. 1), 0232/03 (Abramsky); and Re James et al (No:2), 0232/03 (Abramsky). Union counsel essentially relied on Re Baker/Elliott and the two Re James et al decisions. [24] Upon being questioned by the Board whether his position was that a Schedule 6 employee, by that status alone, would be disentitled to call-back pay under article UN 9.1, employer counsel replied that it was not. However, he proceeded to argue also that the Board has a well established body of case law on the applicability of article UN 9.1 to Schedule 6 employees going back to the 1989 decision in Re Krete. He urged me to pay heed to ?the Blake principle? and not depart from that case law. [25] I find inconsistency in employer counsel, on the one hand conceding that Schedule 6 status by itself does not determine entitlement under article UN 9.1, and at the same time urging me to follow decisions such as Re Krete (supra), Re Hill (supra) and Re Henderson, (supra) which in fact held that Schedule 6 employees are, by that status alone, disentitled to call-back pay. [26] The language in article 14.1 referred to in the earlier decisions is the same as in the present article UN 9.1. In Re Krete (supra) at p. 7 the Board concluded: Briefly stated, under the current wording of Article 14.1 the essential elements to qualify for call back pay are not present. 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 prior to the next scheduled shift. In our view, Schedule 6 employees required to work a minimum of 36¼ hours per week are not shift workers in the traditional sense. 8 [27] In Re Hill, (supra) at p. 8, the Board concluded: We come to the conclusion, for the same reasons as are stated in Krete and in Baker/Elliott that pilots, because they are Schedule 6 employees, are not entitled to call back pay except in accordance with the provisions of the Memorandum of Understanding. (Emphasis added) As later decisions have recognized, Re Krete (supra), determined that employees are not entitled to call-back pay ?because they are Schedule 6 employees?. Re Hill (supra) is accurate to that extent. The Board in Re Krete (supra), concluded that Schedule 6 employees are not entitled to call-back pay under article 14.1, because they are not ?shift workers in the traditional sense?. [28] However, with the greatest of respect to the Board in Re Hill, Re Baker/Elliott (supra) did not conclude that Schedule 6 employees, by that status alone, are disentitled to call-back pay. In fact it held the direct opposite. In Re Baker/Elliott (supra) at p. 6 the Board set out the issue as ?? whether or not the grievors as Schedule 6 employees are entitled to call-back pay under article 14.1?. Then at p. 8, the Board concluded ?call back pay is provided for in article 14.1. Article 14.1 stands on its own and sets out a minimum payment for call back. As the article refers to the generic ?employee? it is not limited to any specific type of employee.? The Board at p. 8, went on to observe as follows: 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 prior to the starting time of his next scheduled shift. The Board concluded that while the grievors met conditions (1) and (2), they did not, based on the nature of their work as Occupational Health & Safety Inspectors, meet condition (3). The test the Board applied in determining whether condition (3) is satisfied is the presence of ?a specified time of work which starts and ends on set times on a regular basis?. [29] If there was any doubt that Schedule 6 employees, are not disentitled to call-back pay, it should be dispelled by the decision in Re Hymers et al (supra). There the grievors were pilots coming within Schedule 6. At p. 14, the Board wrote: 9 As held in Baker/Elliott (supra), Article 14.1 applies to the ?generic? employee, and it is not limited or applicable to any specific class of employee. As followed and held by Vice-Chair Abramsky in the James (supra) decisions, it is not the status of being a Schedule 6 employee that determines that the employee is entitled to call- back pay, but it depends upon the nature of their work and whether the fact situation meets the criteria set out in the collective agreement. In order to be entitled to call-back pay the pilots must then meet the criteria set out in the Collective Agreement as amended by the 1988 Float Agreement. There the Board concluded that the grievors met all 3 conditions of article UN 9.1. They were held disentitled to call-back pay only because, as pilots, the grievors were required to satisfy, in addition to the 3 conditions of Article UN 9.1., certain additional criteria set out in article 2.1.2 of the 1988 Float Agreement. The Board held that the grievors did not meet those additional criteria. [30] In Re Henderson (supra) the Board reviewed Re Krete (supra), and concluded at p. 8 that it stands for the proposition that ?? Schedule 6 employees are simply not entitled to claim call back-pay under article 14??. The Board rejected the union?s argument that since the grievor was on vacation at the time of the call-back, it created an exception. [31] In Re James et al No:1 (supra), the employer brought a motion that the grievance be dismissed based on Grievance Settlement Board case law, taking the position that ?the case law has clearly held that Schedule 6 employees are not entitled to call-back pay under the collective agreement?. At p. 8 the Board observed: 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. At p. 9, however, the Board reviewed the Board?s reasoning in Re Baker/Elliott (supra) and at p. 9 wrote, ?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 motion to dismiss was disallowed. [32] In Re James et al No:2, (supra) the employer asserted ?that the Board should not ignore the prior case law which set out guiding principles?. Despite the Board?s decision in Re 10 James et al No. 1, the employer continued to take the position that, ?the collective agreement is clear that Schedule 6 employees are never entitled to call-back ? pay?. At p. 12-13 Vice-Chair Abramsky wrote: In my earlier decision in this case concerning the Employer?s motion to dismiss, I determined that the grievor?s 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. After considering the closing arguments of the parties, I am still of that view. [33] The Board received and considered evidence about the nature of the grievors? work. At pp. 13-15, it wrote: This ruling is not to suggest that the grievors? 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 grievors and impacts the determination of whether the grievors? have a ?next scheduled shift? within the meaning of Article UN 9.1. In this case, there is no question that the grievors? meet the first two criteria set out in Article UN 9.1. There is no dispute that the grievors? left their workplace and were called back to perform authorized work, albeit remotely from home. The dispute centers on whether they were called back ?prior 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 grievors, on a rotating basis, are assigned to work a specific shift from 4:30 p.m. to 12:30 a.m., Monday to Friday. The memos even use the term ?shift? rather than the term ?rotation? that the Ministry used at the hearing. 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 grievors? work and the fact that their work often requires them to work outside of the standard hours. Essentially, a significant proportion of the grievor?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 grievors to work late or come in early. The length of any particular working day is unpredictable, whether the employee is working during the day or in the afternoon. In light of that, it is difficult to conclude that the grievors have ?a specified time of work which starts and 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. 11 [34] Noting that due to the nature of their work, the length of any particular work day is unpredictable, and that the grievor?s work quite often does not have ?a specified time of work which starts and ends on set times on a regular basis?, the Board concluded that the rd 3 requirement for entitlement to call-back pay had not been established. [35] On my reading of the Grievance Settlement Board jurisprudence, I conclude that the current law establishes the following principles with regard to the entitlement of Schedule 6 employees to call-back pay under article UN 9.1. (1) Schedule 6 employees are not excluded from entitlement by that status alone. (2) A Schedule 6 employee to have such entitlement must meet the 3 conditions in the article. (3) If a Schedule 6 employee is able to satisfy those 3 conditions, he/she will be entitled to call-back pay under article UN 9.1. rd (4) In order to meet the 3 condition of article UN 9.1 that there must be ?a next schedule shift?, an employee must have a specified time of work, which starts and ends at set times on a regular basis. [36] In the present case also, there is no dispute that Mr. Couture meets conditions (1) and (2) of article UN 9.1. The dispute is only about the existence of ?a next scheduled shift?. Therefore, the evidence as to the nature of his work must be reviewed to determine whether or not he had ?a specified time of work, which starts and ends at set times on a regular basis?. [37] The representative witness? testimony, which I have reviewed indicates the following (a) His work hours were from 8:00 a.m. to 4:00 p.m. When he first came to Mr. Chadbourne?s group, he was given a choice of either working 8:00 a.m. to 4:00 p.m. or 9:00 a.m. to 5:00 p.m. He chose the former. (b) Once he had made his choice, any variation from the 8:00 a.m. to 4:00 p.m. work period had to be pre-arranged with management. (c) If he needed to come in later than 8:00 a.m. or leave earlier than 4:00 a.m., or if he needed time off during that period, not only was he required to get approval, he had to use his accumulated vacation or in-lieu time to cover for that time. 12 (d) Mr. Couture could not recall ever starting work before 8:00 a.m., except on Wednesday mornings when his group did changes to the system. (e) He worked past 4:00 p.m. only on scheduled overtime, or if a breakdown occurred in the afternoon hours. It was rare for him to work beyond 4:00 p.m. (f) He needed approval to work out of home. Approval is not automatic. (g) If called at home when not ?on-call? Mr. Couture tried to respond if possible. However, he did so only at his discretion because he was a professional, not because it was required as a condition of work. (h) He did work at home once, but he had to obtain prior approval to do so. [38] Mr. Chadbourne, the only employer witness, disagreed that Mr. Couture was required to work 8:00 a.m. to 4:00 p.m. It was clear however, that he had no personal knowledge of Mr. Couture?s start/end times or break times. His testimony was about his own expectations. He testified that if Mr. Couture worked set hours as he testified, he had done so at his own discretion and not because he had directed him to do so. [39] However, Mr. Couture did not testify that it was Mr. Chadbourne who told him that he had to obtain permission to come in late or leave early, to cover time-off with vacation or in-lieu time etc. He testified generally, either that he ?was told to? or that his? supervisor? directed him to. Neither counsel asked Mr. Couture for the identity of the person or persons who gave those directions. [40] The evidence indicates that Mr. Chadbourne had no hands on day-to-day supervision of Mr. Couture. That was done by an AMAPCEO supervisor. Mr. Couture?s testimony was specific and concrete. Despite Mr. Chadbourne?s genuine testimony that he personally had no expectation that Mr. Couture should adhere to set hours as he did, the evidence is that he received such directions from someone representing the employer. Mr. Chadbourne had not communicated his expectation that employees had flexibility with respect to start/end times and breaks, any time prior to the filing of these grievances. Mr. Chadbourne?s testimony as to his expectations does not contradict the specific evidence of Mr. Couture, in the absence of any evidence that such expectations were communicated to the grievors except after the filing of the grievance. On the other hand, 13 the union adduced evidence about specific directions Mr. Couture received, which were very different from what Mr. Chadbourne would have expected. [41] Employer counsel stated that he was not challenging Mr. Couture?s credibility. However, he submitted that Mr. Couture was mistaken about, or had misunderstood, what was expected of him. I find that there is no basis in the evidence to support that. Mr. Couture was very specific about what he was ?told?. For e.g., that he needed approval to come in late or leave early, that he needed to cover any time off taken in the 8:00 a.m. to 4:00 p.m. period with vacation or in-lieu time. [42] In Re James et al No:2, (supra), the Board found the issue to be ?very close?. (p. 16). The Board found that the grievors there had no ?next scheduled shift? and supported that finding by pointing out that the grievor?s work, quite often, did not have a specified time of work which starts and ends on set times, on a regular basis. It also pointed out that the length of any particular work day of the grievors was unpredictable. [43] The evidence before me, leads to the opposite conclusion. The evidence is that on a regular basis Mr. Couture was expected to, and did start and end the work day at set times. He had no discretion in that regard and any variation was subject to approval. In Re James et al No: 2 (supra) ?quite often?, the grievors did not start and end the work day at set times. In the present case it was not so. Variations were rare, and even then it was (supra) the length of Mr. subject to pre-arrangement. Unlike in Re James et al No:2, Couture?s work day was predicable, with rare exceptions. That meets the test of ?on a regular basis?. [44] The Board recognizes that the fact that an employee works regular hours by itself does not give rise to ?a shift?.Thus if Mr. Couture had, at his own discretion, worked 8:00 rd a.m. to 4:00 p.m. regularly, that would not have satisfied the 3 condition of article UN 9.1. What makes the difference is that Mr. Couture did those set hours because he had been directed to. The only flexibility he had was at the point of choosing one of two time periods. 14 [45] Employer counsel also pointed out that Mr. Couture did not punch in/out, and that he did not log in or out on his computer at the start and end of his work day. If the evidence indicated that Mr. Couture was required to do that, it would have been very strong evidence that there was a shift. However, the absence of such evidence does not preclude the same finding, where as here, the employee started and ended his work day at set times on a regular basis, at the direction of the employer. rd [46] I conclude, therefore, that Mr. Couture?s circumstances satisfy the 3 condition of article UN 9.1, in that he had a specified time of work which starts and ends at set times on a regular basis. Therefore, he is entitled to call-back pay under that provision. [47] In the result all three grievances are upheld. As agreed to between the parties as the appropriate remedy, the employer is directed to compensate the grievors for any call-back pay they would have been entitled to, going back 30 days from the day each grievor first raised the complaint about the employer?s failure to comply with article UN 9.1. I remain seized in the event of any disagreement relating to implementation. th Dated at Toronto this 26 day of February 2009. Nimal Dissanayake, Vice-Chair