HomeMy WebLinkAbout2016-1167.Union.20-12-11 DecisionCrown Employees
Grievance Settlement
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Commission de
règlement des griefs
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GSB# 2016-1167; 2019-0585; 2019-0723
UNION# 2016-0616-0009; 2019-0617-0006; 2019-0678-0003
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Ed Holmes
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Felix Lau
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING November 27, 2020
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DECISION
[1] The Employer and the Union agreed to participate in mediation-arbitration
pursuant to Article 22.16 of the collective agreement. At the first day of mediation,
held on March 4, 2020, the parties were unable to reach a resolution. As such,
they agreed to a process by which each party provides the Arbitrator with their
submissions setting out their respective facts and the authorities they may be
relying upon. This decision is issued in accordance with Article 22.16 of the
collective agreement, so that it is without precedent or prejudice to any other
matters between the parties, and is issued with minimal written reasons.
[2] Four grievances have been submitted to me, although it appears that two of the
grievances bear very similar grievance numbers and arise out of the same
institution. Grievance #2016-616-09 is a hand-written grievance filed by the local
union at the North Bay Jail. It states that the “Employer immediately stop the
practice of scheduling training on staff RDOs [Regular Day Off]. Any staff training
that is done on [an] RDO must be paid at 1.5 times the employee’s regular rate. The
practice of straight time pay for RDOs is in contravention of Articles COR3/COR5
(shift schedules)/COR8 (overtime) & the Local CWW”. This grievance was filed by
the Local Union President on May 8, 2016.
[3] The second grievance, which is typed, is numbered somewhat similarly, Grievance
#2016-0616-0009. It was filed by the Union on July 28, 2016, and is signed by the
President of OPSEU, Warren (Smokey) Thomas. It too appears to relate to the
North Bay jail as the Local President’s name is on the grievance. It states that “The
Employer has violated specifically, but not exclusively, Articles 2, 10, COR3 & COR8
of the collective Agreement and/or any other legislation by scheduling staff on their
regular days off for mandatory training causing there not to be two consecutive days
off, and then not paying them at the appropriate overtime rate”.
[4] The third grievance, #2019-0617-0006, was filed by the Union on April 30, 2019,
and is signed by the Union President, Mr. Thomas. It is in respect of the Sudbury
Jail, and bears the same text as does the second grievance. This grievance also
bears the Local President’s name on the grievance.
[5] The fourth grievance, #2019-0678-0003, was filed by the Union on March 25, 2019,
and is signed by the Union President, Mr. Thomas. It is in respect of the Algoma
Treatment & Remand Centre (“ATRC”) in Sault Ste. Marie, and bears the same text
as does the second grievance. This grievance also bears the Local President’s
name on the grievance.
[6] There is no dispute about the facts in this case.
[7] At the North Bay Jail, between June 20 and 30, 2016, Correctional Officers were
required by the Employer to attend mandatory Mental Health training. Some staff
were required to attend the training on their regular days off (“RDOs”), and were
paid straight time rates for those days. The first grievance was filed because staff
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who were required to work on their RDOs wanted to be paid overtime for attendance
at the mandatory training, and wanted their two consecutive days off, as envisaged
by the terms of the collective agreement. They also wanted the Employer to stop
the practice of scheduling mandatory training on their RDOs. That is essentially
what all the grievances are about.
[8] According to the Union’s submissions, these grievances raise two issues: the first
is that the Employer is not permitted to unilaterally change an employee’s RDO to a
work day for training purposes if it contravenes the two consecutive days off
requirement in the collective agreement. The second issue is that if an employee
does in fact come in for training on a RDO, they should be paid premium wage rates.
[9] The Employer is of the view that it can rely on Article 7 in the model Compressed
Work Week Agreement (“CWWA”) in the collective agreement, and that staff in the
circumstances of these grievances should therefore be paid straight time rates. A
more full review of the Employer’s position will be outlined later.
[10] There is no dispute that each of the three institutions where these grievances were
filed has its own CWWA. As will become clear, they are not all identical to Article 7
of the model CWWA in the collective agreement.
[11] Adoption of a CWWA results in a pattern schedule for all affected employees such
that they know for any period of time, whether for that year, or for the following year,
what days they are scheduled to work and what days they will not be working.
[12] The parties have agreed at COR27 that the Employer will provide mandatory mental
health training. At the North Bay Jail, some staff received their mandatory mental
health training on their regularly scheduled days of work under the CWWA, while
others were required to come in to take the training on their RDOs. The Union has
no issue regarding those who were already at work on their regular schedule, as
they experienced no loss of pay or time off.
[13] The North Bay Jail mandatory mental health training was scheduled from 7:30 a.m.
to 17:30 p.m. Those employees who were required to come to work on their RDO
did not receive another RDO to substitute for the one they had lost: they simply
worked their regularly scheduled shifts pursuant to the CWWA, and additionally on
their RDO(s).
[14] At the ATRC, on February 22, 2019, Josh Miller, the President of Local 678 wrote
an email to Ron MacInnis. In the email Mr. Miller outlined that he was following up
on a discussion he had had with Mr. MacInnis the previous day in which he had
indicated he should be paid overtime for mandatory training that he had to attend
on his RDOs on February 20 and 21, 2019. That training had been in respect of
Personal Protective Safety Equipment. Mr. Miller further indicated that it was the
Local’s position that any mandatory training scheduled on RDOs should be paid at
overtime rates, and that Article 7 of the collective agreement should only be applied
to voluntary training such as ICIT. On March 12, 2019 Mr. MacInnis advised Mr.
Miller that the Employer position was that training on an RDO was to be paid at
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straight time rates as per Article 10 (Work Arrangements) and Art. 7 of the ATRC
CWWA.
[15] At the hearing Counsel for the Union clarified that Mr. Miller’s view as expressed in
his email, as it regarded ICIT training, was not the position of the Union, and is not
what the ATRC grievance is about. Rather, the Union is asserting that all training
for which the Employer schedules an employee to come to work on their RDO is to
be paid at overtime rates in accordance with the terms of the collective agreement.
Counsel for the Union also points out that Mr. Miller’s reference in his email to Article
7 of the collective agreement was an error, as the reference should have been to
Article 7 of the ATRC CWWA. Article 7 of the collective agreement addresses
something else entirely.
[16] The Union provided a number of sample schedules from employees at the ATRC
who had been scheduled to do training on their RDOs, including examples where
employees had to work on two or three consecutive RDOs.
[17] While it had no sample schedules from the Sudbury Jail, there was no dispute that
the issue is the same at that institution, and the parties agree that the outcome of
these grievances applies to all three locations.
[18] The Union relies on a Memorandum of Settlement (the “Monteith MOS”) reached in
resolution of the Darrington Group grievance and the Steinbrunner individual
grievance that arose at Monteith Correctional Complex in Iroquois Falls. The matters
had been scheduled at the Grievance Settlement Board, and the settlement was
reached there on January 27, 2014. The settlement was between the Union and
the Crown in Right of Ontario (Ministry of Community Safety and Correctional
Services) [as it was then known, now the Ministry of the Solicitor General], as the
“Employer”. Since the settlement was not reached on a without prejudice or
precedent basis, and did not indicate it was without any admission of liability or
wrongdoing, the Union argues it was applicable and binding on the Employer for all
institutions in the province. In that settlement the Employer agreed to the following:
- To compensate employees in accordance with COR8 (Overtime) when a
regular employee attends mandatory staff training on their RDOs;
- That COR3 (Days off) shall apply when a regular employee schedule has been
changed in accordance with the collective agreement to attend mandatory staff
training;
- A manner of notifying employees of mandatory staff training; and,
- That when a regular employee schedule has been changed in accordance with
the collective agreement to attend mandatory training, the whole scheduled
shift, or shifts, would be switched, not partial shifts.
[19] Even in the absence of the Monteith MOS, the Union argues that the collective
agreement supports the Union’s interpretation of what should occur in
circumstances such as those raised by these grievances.
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[20] The Employer argues that the Monteith MOS does not assist the Union in this case
as it only deals with individuals out of that institution, and was not a policy grievance.
Had the Union wanted to claim a breach of that settlement, it should have done so.
Instead, it filed these grievances at these three institutions.
COLLECTIVE AGREEMENT
[21] Article 10.01, the Work Assignments provision, addresses Compressed Work Week
Arrangements for fixed term and regular employees, and contains language for a
model agreement to address this issue. As already noted, all three institutions
involved in the grievances here have CWWAs. The Union relies on Art. 3 of the
model CWWA, which addresses Overtime. It states as follows:
3.1 Authorized periods of work in excess of the regular working periods
specified in Article 2.1 or on scheduled day(s) off will be compensated for
in accordance with Article UN8 or COR8 (Overtime) of the Bargaining Unit
Collective Agreement.
[22] According to the Union, in the circumstances here, the “authorized periods of work”
were the training days; “in excess of the regular working periods specified in Article
2.1” refers to the CWWA scheduled hours; “or on scheduled day(s) off” refers to the
RDOs; and, “will be compensated for in accordance with COR8 (Overtime)” refers
to the overtime provision in the collective agreement. As such, the Union asserts
that there is directory language in the CWWA addressing what is to occur in the
circumstances of this case.
[23] At COR 3 of the collective agreement, the parties have addressed Days Off as
follows:
COR3.1 There shall be two (2) consecutive days off which shall be referred
to as scheduled days off, except that days off may be non-consecutive if
agreed upon between the employees and the ministries.
[24] The Union asserts that there was no agreement in any of the situations that gave
rise to these grievances that the two days off could be non-consecutive. Thus, even
if the Employer were able to change a schedule, it would still have to provide an
affected employee with two consecutive RDOs.
[25] COR8 of the collective agreement addresses Overtime. COR8.1 states that the
overtime rate is one and one half times the employee’s basic hourly rate.
[26] COR8.2.3 states as follows:
COR8.2.3 In this article, “overtime” means an authorized period of work
calculated to the nearest half-hour and performed on a scheduled working
day in addition to the regular working period, or performed on a scheduled
day(s) off.
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[27] The Union argues that this provision is consistent with Art. 3.1 in the model CWWA,
which is reproduced above. As such, the Union argues that if employees are entitled
to two consecutive RDOs; if the Employer does not have agreement to non-
consecutive RDOs, as here; and, if the Employer schedules training on an RDO, it
must pay the employee time and a half for all hours worked on that RDO.
[28] According to the Union, the Employer has the right to change a shift schedule if it
gives appropriate notice to employees pursuant to COR5, which addresses Shift
Schedules. In this case, the Employer did not change the shift schedules for those
affected but simply required employees to come into work on their RDOs.
[29] The Employer asserts that there is no evidence that it breached COR3, regarding
two consecutive RDOs, but it is not taking the position that Arts. 7 or 8 of the CWWAs
oust the application of COR3. It concedes that in particular cases, the application
of the Training Assignments provision, in the manner that the Employer asserts it,
could breach COR3. It further concedes that this could be a remedial issue, should
the Union arguments be successful in this case.
[30] The Employer relies on Art. 7 of the ATRC and Sudbury CWWAs (Art. 8 in the North
Bay CWWA) as the basis for why it did not have to pay the employees affected at
the overtime rate for working on their RDOs. Art. 7 of the model CWWA states as
follows:
Article 7 – Training Assignments
7.1 When an employee covered by this compressed work week agreement
attends a training program, the Employer may change the employee’s
scheduled hours of work to the greater of:
(a) 7 ¼ or 8 hours per day, as applicable or
(b) the actual number of hours spent receiving training, for each day
that the employee participates in the training program.
7.2.1 Where the change prescribed in Article 7.1 results in fewer or more
hours than the employee was previously scheduled to work on the day(s) in
question, the “extra” or “deficit” hours shall be reduced to zero within sixty
(60) working days of the completion of the training program, without any
loss of pay by the employee or overtime payments by the Employer, as
follows:
(a) the employee shall be required to work a corresponding number
of hours to make up for any deficit hours; or
(b) the employee shall be scheduled off duty for a corresponding
number of hours to offset any extra hours.
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7.2.2 Where there is mutual agreement, an employee may receive pay at
his or her basic hourly rate for extra hours in lieu of being scheduled off duty
in accordance with Article 7.2.1(b).
7.2.3 Where an employee’s extra hours have not been reduced to zero
within sixty (60) working days in accordance with Article 7.2.1, any such
hours remaining to the employee’s credit shall be paid at the employee’s
basic hourly rate.
[31] The Employer argues that Art. 7 of the CWWAs at ATRC and the Sudbury Jail, and
Art. 8 at the North Bay Jail, regarding Training Assignments, govern the issue in
these grievances. According to those provisions, the Employer claims that time
spent on training is to be treated on a straight time basis, and the Employer can
change an employee’s scheduled hours of work to accommodate the training hours.
Furthermore, the Employer argues that these provisions supersede the overtime
provisions of the collective agreement or CWWA.
[32] According to the Employer, Art. 7.1 or 8.1, depending on the relevant CWWA, does
not only relate to an employee’s scheduled working hours, as the Union argues, but
applies to the entire schedule, including RDOs. It argues that it would take clear
language to restrict management’s rights in this respect.
[33] From my review of the CWWAs for the three institutions it would appear that while
they generally follow the model CWWA outlined above, there are some minor
differences that I note for the record. The Sudbury Jail CWWA and the ATRC
CWWA appear to be exactly the same as the model in the collective agreement,
and the provision is Art. 7 in each of those agreements. However, the North Bay
CWWA is different in three respects, none of which is material for my purposes.
Firstly, the provision is numbered as Art. 8, rather than Art. 7. Secondly, Art. 8.1
only refers to 8 hours rather than to “7 ¼ or 8 hours per day”. And finally, Art. 7.2.3
from the model CWWA is missing entirely.
[34] The Union points out that while Art. 7.2.2 of the model CWWA (which exists in each
of the institutions’ respective CWWAs) permits the parties to mutually agree that an
employee will receive their basic hourly rate for extra hours in lieu of being
scheduled off duty for a corresponding number of hours to offset the extra hours
they may have worked, there was no such agreement at any of the ATRC, the North
Bay Jail or the Sudbury Jail.
[35] Since the Employer had not availed itself of any of the options open to it: to change
the employees’ schedules so that their training day would be on a work day, but their
two consecutive RDOs would be honoured, or get mutual agreement with
employees to override Art. 3.1 of the CWWA or COR8, they should have paid those
who had to attend at work for training on days that fell on their RDOs at the overtime
rate, pursuant to Art. 3.1 of the CWWA and COR8 of the collective agreement.
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THE JURISPRUDENCE
[36] I have read all of the jurisprudence submitted by the parties. As this is an Article
22.16 decision, I have addressed each case in a summary fashion by simply
outlining what the case stands for after each citation.
[37] The Union relied on the following jurisprudence for the two propositions that
mandatory training has been found to constitute work, and if an employee has to
attend at such training outside of regular work hours, then, subject to the language
of the collective agreement in question, they should be paid at the overtime rate of
pay: OPSEU (Union Grievance) v. Ministry of Health, GSB #1351/92, Unreported
decision dated Sept. 28, 1995 (O. Gray) (the Board found that employees who had
attended mandatory lift training outside of their regular hours of work were entitled
to the premium rate of pay for all overtime hours); Steinberg Inc. v. U.F.C.W., Local
486 (1985), 20 L.A.C. (3d) 289 (C. Foisy) (where retail workers had been strongly
encouraged by management to attend a meeting after work, they were found to have
been at work, and therefore full time employees were entitled to overtime pay for
the time of the business meeting, and call in pay was to be paid to part time
employees); Glopak Inc. and Teamsters, Local 91 (Tracy) (2010), 102 C.L.A.S. 189
(J.F.W. Weatherill) (employee required to attend a medical examination at the
behest of the employer was found to be at work as the employer had made a claim
on the worker’s time, so it was required to pay him wages for the time taken to attend
the examination); Imperial Oil Ltd. v. C.E.P. Local 900 (2006), 85 C.L.A.S. 309 (G.
Luborsky) (employee who was hired on condition that within specified time he had
to get the required certification, or would be terminated, had no entitlement to
receive overtime payment for time he went to write the examination related to the
certification as nothing in collective agreement gave that right); Petro-Canada Oil
and Gas Wildcat Hills Gas Plant v. C.E.P., Local 773 (Unreported Alberta decision
dated October 29, 2003 (W.J. Warren)) (since the parties had bargained that time
employees had to spend on mandatory training was to be paid at premium rates,
the employer could not change the employee’s regular schedule to circumvent
paying overtime pay); Amalgamated Transit Union Local 987 and City of Lethbridge
(Unreported Alberta decision dated October 15, 2012 (J. Leslie Wallace) (training
time is prima facie work time and it would take specific language to disqualify training
time from being counted as part of work time; grievors who had to take mandatory
training on their regular day off should be paid the overtime rate in accordance with
the collective agreement); Insurance Corp. of British Columbia v. O.P.E.I.U., Local
378 (2002), 68 C.L.A.S. 175 (Hall) (written assignments, which were a mandatory
part of an employer training program, constituted “work”, even though they had to
be completed on the employee’s off duty hours; the employees had to be
compensated at the appropriate rate for the written assignments); Corporation of
the Town of Midland and Ontario Public Service Employees Union, Local 328
(Unreported decision dated August 18, 1987 (M. Saltman)) (when employer
changed lunch break policy so that during the winter months snow removal
equipment operators could no longer have their lunch break in the Town’s facilities,
employees claimed overtime pay for the half hour meal period as they were confined
to their trucks for that duration, and had no other options; since they remained under
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the direction and control of the employer, the employees should be paid overtime
pay for the meal period).
[38] The Employer relies on the following jurisprudence in support of its arguments:
Brown & Beatty, § 4:2120 (a general guide to interpreting a collective agreement is
that it should be presumed that all of the words used were intended to have some
meaning, and that they are presumed not to have been intended to be in conflict);
Wire Rope Industries Ltd. v. U.S.W.A., Local 3910 (1982), 4 L.A.C. (3d) 323
(Chertkow) (in the absence of clear and unequivocal collective agreement language,
the employer had the right to on a particular day to temporarily transfer an employee
from his regular job to the labour pool, if it did so to meet production needs) ; OPSEU
(Vitorino) and Ministry of Government Services, GSB No. 2009-1293, November 30,
2010 (Abramsky) (principles of contract interpretation reviewed; onus on union to
establish that the employer has agreed in clear and unequivocal terms to provide a
monetary benefit to employees as part of the compensation for providing their
labour) ; Vancouver Coastal Health Authority and HEU (Clark), 2016 CarswellBC
625 (McPhillips) (when the employer cancelled a compressed work week program
and returned to a regular Monday to Friday shift, it was found that a more specific
provision addressing compressed work week arrangements governed over a
general provision regarding the employer’s right to change the days or hours of work
in the collective agreement, and that the employer was therefore entitled to cancel
the compressed work week arrangement); Ontario Hydro and Society of Ontario
Hydro Professional and Administrative Employees, [1999] O.L.A.A. No. 90 (Picher)
(professional employees employed in a quasi-managerial capacity claimed overtime
payments for attendance at a mandatory two-week training program; the arbitrator
found that the parties had only agreed to pay straight time rates for travel time that
occurred on an employee’s time off, so there was no requirement to pay overtime in
the collective agreement)(decision upheld on judicial review); Society of Energy
Professionals and Bruce Power LP, 2017 CarswellOnt 13064 (Trachuk) (the union
claimed again that employees who had to attend mandatory training should be paid
overtime for hours beyond their regular hours of work, and relied on the provisions
of the Employment Standards Act. After parsing the ESA, and the provisions of the
collective agreement, the grievance was denied as there was no breach of the ESA
found).
DECISION
[39] Having considered the submissions of the parties, reviewed the language of the
CWWAs at the North Bay Jail, the ATRC and the Sudbury Jail, as well as the
collective agreement, and the jurisprudence submitted, I find that the Employer
breached the terms of the CWWAs and the collective agreement when it required
employees to attend at work for training purposes on their RDOs, and when it failed
to pay them overtime rates for those days. My brief reasons follow.
[40] The CWWA does not oust the provisions of the collective agreement unless it so
specifies.
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[41] In each instance here, the Employer required certain employees to attend at
mandatory training on their RDOs. Based on the jurisprudence, in the absence of
language to the contrary, where an employee is required to attend training at an
employer’s behest, that time is considered work time. There is no dispute about that
in this case, as the Employer has recognized that, and has paid the employees
affected at their straight time rates.
[42] Whether those employees should have been scheduled for the training on their
RDOs is the first issue. COR3.1 states that employees are entitled to two
consecutive scheduled days off. The only exception is if there is agreement
between the employees and the ministry that the days off may be non-consecutive.
There being no such agreement here, I find that if an employee was required to work
on one or more of their two consecutive RDO’s, that was a breach of the collective
agreement as such employees were entitled to two consecutive RDOs.
[43] All the CWWAs in this case contain Art. 3 regarding Overtime. That provision
requires that the Employer compensate an employee at the overtime rate if it has
authorized that employee to work on a scheduled day off. Article 3 also specifies
that overtime payment will be in accordance with COR8 of the collective agreement.
Thus, if an employee was required to work on a RDO, they were entitled to be paid
at the overtime rate of pay in accordance with COR8.
[44] COR8.2.3 echoes Art. 3.1 of the CWWAs, in that it states that overtime means an
authorized period of work performed on a scheduled day off. COR8.1 defines the
overtime rate for the purposes of the collective agreement as being one and a half
times the employee’s basic hourly rate.
[45] Art. 7 of the ATRC and Sudbury CWWAs, and Art. 8 of the North Bay CWWA, permit
the Employer to change the “scheduled hours of work” of an employee to 7.25 or 8
hours, or the actual number of hours spent receiving training for each day that the
employee participates in the training program. Based on a reading of the entirety of
the provision, I cannot accept the Employer’s argument that this provision permits it
to change an employee’s schedule, including their RDOs, and to pay that person at
their regular hourly rate for the hours they are required to come into work on their
scheduled days off.
[46] The meaning of “scheduled hours of work” in Art. 7 (Art. 8 in the North Bay CWWA)
cannot be taken to mean the entire Compressed Work Week schedule. That is
because Art. 7.2.1 (or Art. 8.2.1 for North Bay) of the CWWAs states “where the
change prescribed in Article 7.1 results in fewer or more hours than the employee
was previously scheduled to work on the day(s) in question …” (emphasis added).
It is clear that the parties are referring to a day on which the employee was already
scheduled to work, not a scheduled day off.
[47] What the parties appear to have been doing in this article is permitting the Employer
to change the regular hours of work on a scheduled work day so that training could
be provided despite the fact that it may start earlier, or end later, than what would
otherwise be the employee’s schedule of work for that day. It allows the Employer
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to hold group training on a work day despite what employees’ various shift times
may be. Since employees would be working that day anyway, they are only to be
paid their regular rate of pay for the day. However, the parties have agreed in Art.
7 (or 8 in North Bay) that if the training hours result in the work day being shorter
than the employee would otherwise have worked, the employee is required to work
a corresponding number of hours to make up for any deficit hours (Art. 7.2.1(a) or
Art. 8.2.1(a)). If the employee is required to be at the training program longer than
their regular scheduled shift hours, then they are to be scheduled off duty for a
corresponding number of hours to offset the extra hours (Art. 7.2.1(b) or Art.
8.2.1(b)). Any extra or deficit hours that result from a training day, must be reduced
to zero within 60 working days of the completion of the training program. Thus, if
the employee was at work for less than their regularly scheduled hours on the
training day, they have to make those hours up within 60 working days. Conversely,
if the employee worked extra hours than their scheduled hours on the training days,
they must be given those extra hours off within 60 working days of the training day.
An employee can opt to take straight time pay for the extra hours in lieu of being
scheduled off work for those hours (Art. 7.2.2 or 8.2.2).
[48] Reading Art. 7 (or Art. 8 in the North Bay CWWA) as a whole it is clear that what the
parties have agreed is that the Employer has the right to change an employee’s
hours of work to attend at a training program, and to pay that employee at their
regular rate of pay, but those rights are limited to changing the hours that the
employee “was previously scheduled to work on the day(s) in question” (Art. 7.2.1
or Art. 8.2.1).
[49] It would take the clearest of language to find that the Employer has the right to
change an employee’s scheduled day or days off, require them to come to work for
a training program, required them to forego their day or days off, and only pay them
at their regular straight time rate of pay. There is no such language in the
agreements before me. What the Employer in these instances relied upon was what
it could do for days that employees were already scheduled to work, but the affected
employees were not already scheduled to work: they had scheduled days off.
[50] The parties have negotiated what is to occur if an employee is required to work on
a scheduled day off, and have agreed on a number of ways in which the Employer
can avoid paying overtime rates for such work. The Employer in this instance did
not avail itself of any of those options. It therefore breached the terms of the
collective agreement when it required employees to work on their scheduled days
off and did not pay them time and a half for those days. Where, as a result of the
Employer’s actions, an affected employee was also deprived of having two
consecutive days off, as mandated by COR3.1, the Employer breached that term of
the collective agreement.
[51] It is instructive to have seen the Monteith MOS, as the parties to that settlement
recognized that the provisions of the collective agreement applied as I have found
in this decision. Having addressed the language of the collective agreement as
above, it is unnecessary for me to consider whether the Monteith MOS was
applicable to all institutions in Ontario.
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[52] For all of the reasons outlined above, I have found as follows:
(a) The Employer violated COR3 of the collective agreement in those instances
where it unilaterally changed an employee’s RDO to a work day for training
purposes, did not provide the employee with any alternate RDO, and thereby
deprived the employee of two consecutive days off work.
(b) When employees were required to work on an RDO for training purposes, they
should have been paid at the overtime rate of pay in accordance with COR8.2.3
and Art. 3.1 of the CWWAs.
(c) The Employer is therefore directed to properly compensate any employees at
the ATRC, the North Bay Jail and the Sudbury Jail who experienced the loss
of two consecutive scheduled days off, and to compensate all affected
employees at the three institutions for lost overtime wages on all of the RDOs
on which affected employees were required to work in order to attend at
training.
[53] The grievances are upheld.
[54] I will remain seized in the event that the parties are unable to resolve any issues
arising out of this award.
Dated at Toronto, Ontario this 11th day of December, 2020.
“Gail Misra”
_________________________
Gail Misra, Arbitrator