HomeMy WebLinkAbout2005-2333.Gray et al.11-11-14 DecisionCommission de
Crown Employees
Grievance Settlement
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Board
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Couronne
Suite 600 Bureau 600
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Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
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GSB#2005-2333, 2005-2674, 2009-1604, 2010-2624
UNION#2005-0234-0257, 2005-0234-0354, 2009-0234-0116, 2010-0999-0033
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gray et al)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREBarry B. FisherVice-Chair
FOR THE UNIONEd Holmes
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYERStewart McMahon
Ministry of Government Services
Labour Practice Group
Counsel
HEARING
September 12, 2011.
- 2 -
Decision
[1]This case involves the issue of shift premiums for certain shifts at the Vanier facility.
[2]There are two schedules that are relevant to this case:
06:45 to 19:15
18:45 to 7:15
[3]The shift is 12.5 hours long, however it includes a 30 minute unpaid lunch break, so the employee
is paid for 12 hours.
[4]The issue here is whether the first 15 minutes and the last 15 minutes of these shifts entitle the
employee to a Shift Premium under Article COR6.1.1, 6.1.2 and 6.1.3, which read as follows:
COR6 1.1 Effective March 27, 1999, an employee shall receive a shift premium of one
dollar ($1.00) per hour for all hours worked between 5:00 p.m. and midnight.
Where more than fifty percent (50%) of the hours worked fall within this time
period, the one dollar ($1.00) per hour premium shall be paid for all hours
worked.
COR6 1.2 Effective March 27, 1999, an employee shall receive a shift premium of one
dollar and fifty cents ($1.50) per hour for all hours worked between midnight and
7:00 a.m. Where more then fifty percent (50%) of the hours worked fall within
this time period, the one dollar and fifty cents ($1.50) per hour minimum shall be
paid for all hours worked.
COR6 1.3 Effective June 24, 2005, a premium of three dollars ($3.00) per hour shall be paid
for all hours that commence on or after sevHQR¶FORFNSP)ULGD\DQGHQGRQRU
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[5]It should be noted that the Union is seeking payment of the shift premium on a prorated basis,
that is 30 minutes a day at the applicable rate.
[6]7KH8QLRQV¶DUJXPHQWLVVLPSOH7KHHPSOR\HHVDUHZRUNLQJIRUWKRVHWZRPLQXWHVDWWKH
beginning and the end of the shift and thus are entitled to the shift premium on a prorated basis.
[7]7KH0LQLVWU\DUJXHVWKDWWKHWHUP³SHUKRXUIRUDOOKRXUVZRUNHG³UHTXLUHVWKDWHPSOR\HHV
work a full hour of the shift premium period in order to be paid. In other words, there is no pro-rata
provision.
[8]Under the Ministry interpretation, the following scenarios would occur:
1)If an employee was scheduled and worked for 55 minutes into the premium period, he or she
would receive no shift premium.
2)If an employee was scheduled and worked for 1 hour and 55 minutes into a premium period,
he or she would receive a shift premium for only one hour.
- 3 -
[9] The Ministry says that where the parties intended to deal with periods of less than one hour, they
used different language to express themselves. For instance, in Article 8.2.3, Overtime, the parties used
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[11] Imagine if I were to offer you temporary emSOR\PHQWDQG,WHOO\RXWKDW,ZLOOSD\\RX³
SHUKRXUIRUDOOKRXUVZRUNHG´<RXZRUNKRXUVDQGPLQXWHV'R,RZH\RXRU"
[12] I do not imagine that there is a person in the world who would expect that the proper pay would
be $100. People rarely agree to work for free.
>@7KHUHIHUHQFHWR³DOOKRXUVZRUNHG´LVLQWHnded to differentiate between scheduled hours and
worked hours. In other words if an employee was scheduled to work 15 minutes into a premium period
but in fact did not work that period, then no shift premium would be payable.
[14] In other words, I find that the language used clearly includes the concept of pro rata payment and
if the parties want to limit this provision to only full hours, then they would need to express that in clearer
terms.
[15] The grievance is allowed. I remain seized of any issue involving remedy and the interpretation
and application of this award.
th
Dated at Toronto this 14 day of November 2011.
Barry B. Fisher, Vice-Chair