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HomeMy WebLinkAboutLaakso et al 09-07-02 IN THE MATTER OF AN ARBITRATION BETWEEN COMMUNITY L1VING GREATER SUDBURY ("the Employer") -AND- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 676 ("the Union") CONCERNING INDIVIDUAL GRIEVANCES REGARDING OVERTIME Christopher Albertyn - Sole Arbitrator APPEARANCES For the Union: David Wright, Counsel, Ryder Wright Blair & Holmes, LLP Tammy Lanktree, Chief Steward Normond Pilan, Staff Representative For the Employer: Geoff Jeffery, Counsel, Weaver Simmons Deb Sullivan, Executive Director Tracy Girard, Director Hearing held in SUDBURY on April 21, 2009. Award issued on July 2,2009. AWARD The issue 1. This award concerns 13 individual grievances. They all deal with whether proper overtime has been paid to the Grievors. Facts 2. There are approximately 130 employees. Of them between 55-60 are full- time. 3. The parties have provided a Statement of Agreed Facts that reads: STATEMENT OF AGREED FACTS 1. The parties agree that the following facts are accurate for the purpose of this hearing and can be relied upon by the arbitrator in making his determination on this matter. 2 2. The Employer is an agency established in 1963 which is devoted to the support of individuals with developmental disabilities in the City of Greater Sudbury. Currently the agency provides residential support to 74 adults and seniors with intellectual challenges and day supports to approximately 125 individuals in and around the City of Greater Sudbury. The agency operates 8 group homes, 3 drop-in centres and the Family Home Program. 3. The parties are currently bound by a collective agreement that has been in force since 1 January, 2007 and will continue in force until 31 March, 2010 (the "Collective Agreement"). The Collective Agreement is attached as Exhibit "A". 4. Prior to the Collective Agreement, the parties were bound by a collective agreement whose term commenced on 1 January, 2004 and expired on 31 December, 2006 (the "Prior Collective Agreement"). The Prior Collective Agreement is attached as Exhibit "B". 5. The parties have agreed to put the following questions to the Arbitrator: a) Does the Collective Agreement or the Prior Collective Agreement require the payment of overtime pay at time and a half after 40 hours in one week or only after 80 hours in a pay period? b) What constitutes "hours worked" for the purpose of article l3.03? 3 6. The Overtime provision of the Collective Agreement (which is the same as the Overtime provision in the Prior Collective Agreement) is as follows: 13.03 Overtime (a) Where a full-time employee's supervisor directs the employee to work in excess of eighty hours in a pay period, the employee shall be paid at the rate of one and one-half the regular straight time hourly rate for the overtime worked or with mutual agreement the full-time employee shall receive compensating time off on the basis of one and one half times for each hour worked. (b) All overtime must be approved in advance by the supervisor before it is worked. (c) A request to take overtime as compensating time off may be made in writing for a six-month period from either 1 April to 30 September, or from 1 October to 31 March in any year. Any overtime not taken in compensating time off by 30 September or 31 March in any year will be paid out. (d) It is further agreed that a period of up to 15 minutes may be required at either end of a shift to permit an orderly shift change and exchange of reporting. Such period shall not be considered as overtime. 7. Since pnor to the term of the Collective Agreement and Prior Collective Agreement, the Employer's practice with respect to overtime pay, of which the Union was aware, has been consistent and unchanged. Specifically, the Employer has: a. Paid overtime only for hours worked in excess of 80 in a pay period; and 4 b. Calculated overtime by taking into consideration only hours actually worked, to the exclusion of other hours for which the employee is paid. 8. The hours for which the Employer pays its employees and they do not work fall into four categories: a. Statutory Holidays b. Sick Days c. Vacation Days d. Lieu Days. 9. It is the Union's position that the Employer is required to include all hours for which an employee is paid as "hours worked" for the purpose of determining entitlement to overtime pay pursuant to Article 13.03. In this regard, the Union relies on Article 13.02 of the Collective Agreement (which is unchanged from the same provision in the Prior Collective Agreement): 13.02 For full-time employees, the normal hours of work over the schedule determined by the Employer shall be up to 40 hours per week. The Union also relies on a provIsIOn that was changed III the negotiations leading to the Collective Agreement: 2.02 Definitions (a) A "Full-time employee" shall be defined as a member of the bargaining unit who is regularly scheduled to work for 40 hours per week. 5 10. The defmition of full-time employee m the Prior Collective Agreement read as follows: 2.02 Definitions (a) A "Full-time" employee shall be defined as a member of the bargaining unit who is regularly scheduled to work for 35 hours or more per week. Regular part-time staff working under more than one employment contract with the Employer shall not be considered full-time. 11. While it is also the Union's position that the Employer's current practice is not in accordance with the Employment Standards Act, 2000, the parties have agreed to defer this question. It is the Employer's position that its practice does not violate the ESA or, in the alternative, if the practice does violate the ESA, that the Union should be estopped from relying upon the strict language of the statute. 12. The parties have agreed to present four factual scenarios that are representative of the issues raised in the grievances. The parties have agreed that your award should address these four scenarios. If there are remedial consequences to your award, the parties will use your ruling on these scenarios in an attempt to resolve the remedial issue on the remaining grievances, and will ask you to remain seized with respect to all the grievances to deal with any remedial issues that the parties are unable to resolve between them. 13. Scenario #1 - Marilyn Laakso (Prior Collective Agreement) 6 Marilyn Laakso worked three of her five scheduled shifts in the first week of the pay period (March 6 to 19, 2006), took the two following days as time off in lieu, then worked the following two days. She worked her regular shifts the following week. She was paid her unscheduled hours at the regular rate. Ms. Laakso's Grievance is attached as Exhibit "C". Her Time Sheet for the applicable pay period is attached as Exhibit "D". 14. Scenario #2 -- Heather Savoie Heather Savoie was on compassionate leave for the first half of the pay period from February 19 to March 5, 2007. During the second half of the pay period she worked 40 hours at regular time and 15 unscheduled hours. The 15 unscheduled hours were paid at straight time. Ms. Savoie's grievance is attached as Exhibit "E". Her Time Sheet for the applicable pay period is attached as Exhibit "F". 15. Scenario #3 - Wanda Lamore Wanda Lamore worked 79 hours during the pay period of May 14 to 27, 2007. She worked her regularly scheduled 40 hours during the week of May 14 to 20, 2007. During the week of May 21 to 27, 2007 she worked 32 hours, including a statutory holiday (May 21, 2007). She took a lieu day on May 25,2007, for which she was paid 8 hours' pay. She also worked 7 unscheduled hours (May 22, 2007). She was paid/credited for 86 hours plus a further 12 hours of Statutory Holiday pay (8 hours at time and a half) in the pay period. Her seven unscheduled hours were credited to her bank at straight time. She was debited 8 hours from her bank for her lieu day. Ms. Lamore's grievance is attached as Exhibit "G". Her Time Sheet for 7 the applicable pay period is attached as Exhibit "H". 16. Scenario #4 - June St. Germain During the May 28 to June 10, 2007 pay period, June St. Germain worked 56 hours, was sick one day and took vacation for 2 days. She worked 5 unscheduled hours, 2.5 hours in each of the two weeks of the pay period. Accordingly, the total hours for which she was paid was 85. The five unscheduled hours were credited to her bank at straight time. Ms. St. Germain's grievance is attached as Exhibit "I". Her Time Sheet for the applicable pay period is attached as Exhibit "J". 17. It is the Employer's position that its current and past practice with respect to overtime pay is in accordance with the language of the Collective Agreement. 18. The parties reserve the right to call oral evidence in addition to the facts agreed to above. All of which is agreed, this 21 st day of April, 2009 in the City of Greater Sudbury. The parties' submissions and decision Does the collective agreement or the vrior collective agreement require the pavment of overtime vav at time and a half after 40 hours in one week or onlv 8 after 80 hours in a vav veriod? 4. The Union concedes that on a plain reading of Article 13.03(a) the reference to being directed "to work in excess of eighty hours in a pay period" suggests that the parties intend overtime to apply after 80 hours. Union counsel says, though, that the provision must be read in the context of other provisions in the collective agreement. 5. Union counsel refers to Article 13.02, which defmes the normal hours of work to be up to 40 hours per week, and to Article 2.02, which defmes a full-time employee as a bargaining unit member who is regularly scheduled to work for 40 hours per week. (The prior collective agreement's Article 2.02 defmed a full-time employee as a bargaining unit member regularly scheduled to work for 35 hours or more per week). Union counsel says that Article 13.03(a) - the overtime provision - must be read in light of the change to Article 2.02 from the prior to the current collective agreement. The change, he suggests, entails that overtime should be any time worked over the regular hours, over the regularly scheduled 40 hours per week. 6. Union counsel explains the purpose of the change in the language of 9 Article 2.02. In the prior collective agreement there was no master schedule provision. The current collective agreement has Article 13.07 - Master Schedule, new to the collective agreement. As part of the requirement that full-time employees have regular 40-hour schedules, the Employer is required to schedule them. In Article 13.07(b) full-time employees will normally be scheduled for weekdays, but they may be scheduled on weekends subject to an annual limit. 7. The new master schedule provision is linked to the new defmition of a full-time employee. Under Article 13.02, for full-time employees, "the normal hours of work over the schedule determined by the Employer shall be up to 40 hours per week". So, in Union counsel's submission, the 40-hour a week defmition of full-time employee is linked to the scheduling of full-time employees for 40 hours per week. This means, he suggests, that any work over the 40 hours in any week must attract overtime. 8. As Employer counsel argues, the purpose of interpreting a collective agreement is to discern the intention of the parties from a plain reading of the words they have chosen to express their common understanding. The language used by the parties should be given its normal and ordinary meaning unless to do so would lead to absurdity or inconsistency with the rest of the collective 10 agreement. 9. In this case the plain language of the overtime provision, Article 13.03(a), clearly provides that overtime pay is payable for work "in excess of eighty hours in a pay period". There is no reference to 40 hours in a week. 10. The question, then, is whether, as Union counsel contends, the other provisions of the collective agreement change this reading of Article 13.03(a). 11. Employer counsel refers to the use of headings in the collective agreement as an aid to interpretation. He points out that Article 13 is headed, "Hours of Work and Overtime" and Article 13.03 is headed, "Overtime". Article 2.02(a), on which the Union relies, is under Article 2, headed "Recognition and Scope of Collective Agreement", with Article 2.02 headed, "Defmitions". In Employer counsel's submission, the subheadings tell the purpose and content of the provisions that follow, so that, when interpreting the overtime provision of the collective agreement, one should have regard primarily to Article 13.03. I agree. 12. As Employer counsel argues, Articles 2.02(a), 13.02 and 13.07 concern the scheduling of working hours for full-time employees. The provision, Article 11 2.02(a), defming full-time employees as those regularly scheduled to work for 40 hours a week, is there to distinguish them from regular part-time employees. The definition in the prior collective agreement was similarly to distinguish between the full-timers and the regular part-timers for scheduling purposes. The change in defmitions was not directed towards the calculation of overtime. The absence of any change to Article 13.03(a) between the prior and the current collective agreements means that there has been no change in how overtime is calculated. 13. Therefore, the answer to the first question is that the collective agreement and the prior collective agreement require payment of overtime only after 80 hours in a pay period. 14. Scenario #2, of Ms. Savoie, falls only under the first question for decision (the other three scenarios fall under both questions). Ms. Savoie was given compassionate leave in her first week of the pay period. That is unpaid leave under the collective agreement. She returned to work and, in addition to working her regular five shifts for the 2nd week (her 40 hours), she worked 15 extra hours, totalling of 55 hours worked in that week. All of those hours were paid at regular pay. As I have found for the Employer on the work week - pay period question, Ms. Savoie is not entitled to premium pay for the 15 hours extra work in the 2nd 12 week. This is because she worked less than 80 hours in the pay period. What constitutes "hours worked" for the vurvose of article 13.03? 15. The issue has arisen in one of four ways: an employee has lieu days (from overtime worked or statutory holidays worked), vacation, statutory holidays, or sick time. In each instance, the question is whether such time contributes to the calculation of the 80 hours worked in a pay period. The Employer does not treat such time as working time. As a result non-worked time is paid, but it is not taken into account for the purpose of determining whether 80 hours or more have been worked in the pay period. Union counsel says this is incorrect. In his submission, the Employer's practice has the effect of reducing the value of the vacation day, lieu day, statutory holiday or sick day. 16. In scenario #1 of Ms. Laakso, the two days off in lieu, if calculated as part of her hours worked, as the Union contends, would have resulted in her hours being in excess of 80, and having those excess hours paid at the premium overtime rate. On the Employer's reading of Article 13.03(a), the two days offin lieu were paid at regular rates and they were not treated as part ofthe calculation 13 of the 80 hours worked in that pay period. 17. In scenario #3 of Ms. Lamore, if her statutory holiday hours and her lieu day hours were treated as working hours for the purposes of calculating overtime under Article 13.03(a), she would have been entitled to overtime pay for the hours in excess of 80 over the pay period. 18. In scenario #4 of Ms. St. Germain, if her vacation time and her sick time were treated as time worked for the purposes of Article 13.03(a), then the 5 unscheduled hours she worked would be credited to her bailie at the overtime rate, not at straight time. 19. The question is, by acting as it did, has the Employer violated Article 13.03(a) by paying straight time instead of the overtime rate of time and one half for the hours it did not credit as working hours? 20. In Union counsel's submission, an employee is entitled to fill their pay period in one of two ways, either they work the 80 hours, as regularly scheduled, or they use their earned credits. Once the 80 hours are filled, on either basis, the employee is entitled to the overtime rate for the excess hours. On the Union's 14 reading of Article 13.03(a), the overtime rate is payable for all hours for which the employee is paid in excess of the 80, in the pay period. 21. Union counsel suggests that, if the calculation is not done on the hours paid (but on the hours actually worked), then certain overtime hours are paid for differently from other overtime hours. He suggests that, if an employee uses earned credits for overtime worked, rather than receiving pay for that work, the employee's work is less valued because the lieu time does not count towards the overtime calculation in the period in which it is taken. 22. I am not persuaded by this argument. The time in lieu for overtime worked is calculated at time and one half. That premium time is paid time off. It is time calculated at the premium rate. The fact that it is not credited for the purposes of premium pay in the pay period in which it is used does not diminish its value. Its value is time off at the premium rate, the direct equivalent of the value of that time being paid at the premium rate. 23. In Employer counsel's submission, certain collective agreements contain deeming provisions which specify that certain time off will be treated as hours worked for the purpose of calculating overtime pay (see, for example, Re ICM- 15 Krebsoge Canada Ltd. and I.A.M, Local Lodge No. 1975 (1996),58 L.A.C. (4th) 33 (Levinson)). There is nothing in Article 14 - designated holidays, Article 15- vacation, and Article 16 - sick leave accrual that deems the paid days off to be days worked for the purposes of Article 13.03. This, says Employer counsel, means that I must have regard only to the plain meaning of what is contained in Article 13.03. 24. Employer counsel argues it would make no sense to give overtime credit for hours earned as lieu time for overtime worked. This would have the absurd result of overtime work generating lieu time that would itself contribute to further overtime. 25. Employer counsel contends there is nothing inherently wrong in a collective agreement distinguishing between hours that are worked and hours that are not worked. Employer counsel says Article 13.03 contemplates that only hours worked count towards when the overtime premium payable. 26. I am persuaded by Employer counsel's arguments. Article 13.03(a) says that overtime pay is payable when a supervisor directs "the employee to work in excess of 80 hours in a pay period"; the employee is paid at the overtime rate "for 16 the overtime worked"; or receives lieu time "on the basis of one and one half times for each hour worked" [my emphasis]. The parties' intention is clear, in my view. Overtime pay is directly linked to hours worked. As Employer counsel argues, the ordinary meaning of "work" is that of the employee engaged in the active performance, the physical or mental exertion, of doing their duties. The only reason to extend the meaning of "work" beyond this would be if the language of the collective agreement deemed it so. 27. This interpretation is supported by the provisions of Article 13.03(b): "all overtime must be approved in advance by the supervisor before it is worked". As was said it Sing Tao Newspapers (Canada 1988) Limited and CEP, Loc. 87-M, [2002] O.L.A.A. No. 344 (Nairn), at ~13, the reference to the overtime having to be approved "before it is worked" suggests that overtime is based on hours worked, rather than hours paid. In the parties' collective agreement, there is only one stream of overtime entitlement: for the overtime actually worked. (See also Re Sudbury General Workers, Local 101 and M Loeb Ltd. (1963), 14 L.A.c. 97 (Little); Hertz Canada Ltd. v. UF.C w., Loc. 175 (Statutory Holiday Weeks Grievance), [2007] O.L.A.A. No. 564 (Herman); Hertz Canada Ltd. v. UF.C w., Loc. 175 (Geddes Grievance), [2008] O.L.A.A. No. 255 (Kaplan); and Imperial Oil Ltd. v. CE.P., Loc. 900 (Stinson Grievance), [2006] O.L.A.A. No. 278 17 (Luborsky)). 28. The answer to the second question, for the reasons given, is that "hours worked" for the purpose of Article 13.03 are only the hours actually worked, not the paid hours for statutory holidays, sick days, vacation days or lieu days. 29. In light of this conclusion, the scenarios of Ms. Laakso, Ms. Lamore and Ms. St. Germain result in their not being entitled to the premium pay the Union claims for them under the collective agreement. Their paid time does not equate to time worked in the pay periods described in their scenarios. ***** 30. In summary, the collective agreement or the prior collective agreement requires the payment of overtime pay at time and a half after 80 hours in a pay period; and "hours worked", for the purpose of Article 13.03, refer to the hours actually worked, not the hours paid. 31. In light of these findings and paragraph 11 of the Statement of Agreed Facts, I remain seized with respect to the impact of the Employment Standards 18 Act, 2000, if any, on the determination of the grievances. DATED at TORONTO on July 2,2009. ,. , " i 11 , Ii ..1,. '.' ',_....' _\ 'i \ \ \ Christopher J. Albertyn Arbitrator