Loading...
HomeMy WebLinkAbout1977-0053.Flett.79-01-19Between: Before: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. Terry Flett And The Ministry of Revenue (Grievor) (Employer) Professor Katherine Swinton Vice-Chairman Mrs. Mary Gibb Member Mr. Ron Cochrane Member For the Grievor: Mr. George Richards, Representative Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Employer: Mr. E. Farragher, Senior Personnel Officer Personnel Services Branch Ministry of Revenue 20th Floor, 77 Bloor St. West Toronto, Ontario Hearing: August llth, 1978 Suite 2100, 180 Oundas St. West Toronto, Ontario This is a grievance involving the payment of overtime to which the grievor claimed that he was entitled in accordance with Appendix 2 of the Working Conditions Agreement (January 28, 1976 to January 27, 1977). The grievor is employed as a Property Assessor 3 by the Ministry of Revenue. His hours of work are determined in accordance with Article 7.4 of the collective agreement, which states that employees in Schedule A will have their hours determined in accordance with Appendix 2. That provision deals with "Averaging of Hours of Work" and reads as follows: AVERAGING OF HOURS OF WORK Authority: The number of hours of work per week prescribed, shall be computed as a weekly average over one (I) year, where the duties of a civil servant require: - That he work more than the number of hours per week prescribed at regularly recurring times of the year, or - That the number of hours per week be normally irregular. Cla'sses Assigned to Averaging: The classes subject to averaging are listed at pages VI-F64 and 5. Identification of Classes Assigned: For quick and easy identification, the letter 'A' denoting 'Hours of Work Averaged' will be placed beside these classes in the necessary records. Averaging Period: The averaging period for each class: - Will conform to the twelve-month calendar period which reflects the work cycle of that class, and - Will be reported to the bargaining agent. If at any time a ministry, which is not using one of the classes affected by averaqing, finds it necessary to do so, that ministry must then: -3- - Determine the applicable calendar period, and - Report such period to the bargaining agent. Pro-Rating: Periods of employment of less than twelve months in an averaging period, e.g. due to appointment, transfer, separation, etc., will be pro-rated. Hours Per Averaging Period: nor the one year averaging period, the hours of work required are as follows,, whichever applies to the particular class: - 1885 hours, which corresponds to a 36-4 hour week. - 2080 hours, which corresponds to a 40 hour week. - 2496 hours, which corresponds to a 48 hour week. Changes to Hours Per Averaging Period: If at any time, a ministry requires a dif- ferent hours base for a class or for a position within a class, from that now shown e.g. 2080 instead of 1885, the ministry must: - Alter the affected employees' salaries proportionately, and - Notify the Staff Relations Branch, Civil Servi~ce Commission, of any such changes. Record of Hours worked: A record will be maintained for each employee affected showing a running total of hours worked: - On his regular working days? and - During the averaging period. Excessive Build-Up of Hours Worked: Mhen an employee's build-up of hours worked is becoming excessive, he: - day be required to take time off, on an hour for hour basis, in order to bring his hours accumulation into line with the hours require- ment for the averaging period, . -4- - Will be given reasonable notice, where circumstances permit, of any such time off. Calculation of Hourly Rate: In all cases, the hourly rate of pay for employees on averaqinq is to be determined by dividing the weekly equivalent of the annual hours requirement, i.e. 1885 = 36?r, 2080 = 40, 2496 = 48. Hours Worked Over Annual Requirement: At the end of the averaging period, any excess hours standing to the employee's credit, over and above the stipulated annual hours require- ment, will be: - Considered as overtime, and - Multiplied by one and one-half'to show the employee's "overtime credit" for pay ol compensating leave purposes. Normally, the employee shall be paid for his overtime credits. Such payment shall be made at the hourly rate he was receiving on the last day of the averaging period. Compensating time off may be substituted for pay- ment of overtime credits: a) Where there is insufficient work for an employee to the extent that his presence is not required for a period of time, in which case: - A ministry has the authority to direct that the employee take time off rather than receive pay for his overtime credits, and - Such time off must be taken commencing during the first month of the averaging period. (OR) b) In circumstances other than the above &d where the employee and his supervisor mutually agree to compensating leave, in which case the time off will commence: - Within the first month of the next averaging period or - At arotherwise mutually satisfactory time. Hours Worked on Other Than Regular Work Days: Any hours worked, on a holiday or other day that is not a regular working day for the employee, will be: -Treated as overtime and converted to "overtime credits” by multiplying by one and one-half, and -Recorded for each employee The employee shall be paid for all such overtime credits: -At least quarterly, and -At the rate he was receiving when the overtime was worked. Appendix 2 applies to specified classes of employees, who are usually professional and para-professional employees having hours that fluctuate widely throughout the year. Overtime is calculated, for these employees, on the basis of the total number of hours worked throughout the calendar year, rather than on the basis of a maximum number of hours per day or week. Other employees have their hours determined by Article 7.1, 7.2 or 7.3 as 36& hours per week and 7t, hours per day; 40 hours per week and 8 hours per day; or 36% hours per week respectively. Hours worked in excess of these maximums are compensated at overtime rates, except for employees in Article 7.3, Schedule 6. The difficulty giving rise to this case is the specification of the maximum number of hours which Mr. Flett must work in the year before he is eligible for overtime. The union argues that the three classes of "hours bases" set out in paragraph six of Appendix 2 under the heading "Hours Per Averaging Period" fix the maximum number of hours to be worked in any calendar year. Mr. Flett fell within the first class, with an hours base of 1885 hours, corresponding to a 36Ls hour week. Therefore, in 1975-76, a year in which Mr. Flett worked 1899.5 hours, it is argued that the grievor is entitied to overtime ' for lez hours. The employer has rejected this claim on the basis that the hours to be included in the averaging period in 1975-6 number 1899.5, not 1885. The figure of 1885 hours should be used only in those years : i -6- in which the 1885 hour total corresponds to a 36k hour week. This occurs only when there are 260 working days in the year, whereas 1975-76 had 262 working days because of leap year and because of the fact that the first working day of April fell on a Monday. The rationale for the employer's argument may become clearer if the Ministry's method of calculating overtime for those on the averaging system is explained. The Ministry uses a weekly base of 36% hours minus statutory holidays and records a cumulative balance of each employee's hours for the averaging period (which in this case is the fiscal year). Depending on the year, the Ministry treats the averaging period as 260, 261 or 262 working days or 1885, 1892.25 or 1899.5 working hours respectively. The union has argued that the plain meaning of the words in Appendix 2 of the collective agreement requires the employer to treat 1885 as the maximum number of hours that must be worked at straight time. Emphasis was placed on the reference to "hours of work required" in the paragraph entitled "Hours per Averaging Period." There are only three classes of hours required: 1885, 2080, or 2496. Further rein- forcement comes from the next paragraph, "Changes to Hours Per Averaging Period", which seems to contemplate only three classes of hours bases, again 1885, 2080, and 2496. Finally, in "Hours Worked Over Annual Requirement", there is reference to the stipulated annual hours requirement, seemingly a reference back to the three hours bases. Therefore, it is argued, 1885 is the maximum hour requirement in a year, regardless of the number of working days. While the union's argument is one that merits serious consideration, it would lead to an interpretation of the collective agreement that, from the evidence, is clearly not intended by the parties. The role of a board of arbitration,.in interpreting a collective agreement, is to try ~to determine the intention of the parties. In this case the purpose of the averaging ~system is to compensate those on irregular hours for overtime work in a way similar to their fellow employees who work regular -7- hours. That is, the aim of the scheme,. according to both the union and employer representatives, is equivalency, insofar as possible, between the two types of employees. One can see an effort to meet this objective in the language of Appendix 2, particularly in the controversial paragraph entitled "Hours Per Averaging Period". While the paragraph describes the classes of hours as 1885, 2080, and 2496 hours, it does so with a qualification, and that is, "1885 hours, which corresponds to a 36% hour week". Two of the three classes of employees in Appendix 2 correspond to the three classes of employee in Article 7 of the collective agreement, who work either 7S, or 8 hour days or a 36k hour week. Such employees work 1885 or 2080 hours per year in a year .of 260 working days. The parties show by the phrase "1885 hours, which corresponds to a 36% hour week" and also by the reference to hours of work prescribed, computed as a "weekly average" in paragraph one and to the "weekly equivalent" of .36% hours in the paragraph entitled "Calculation of Hourly Rate", that the emphasis is on the weekly average for hours of work. One might ask why paragraph one refers to the number of hours per week, computed as a weekly average, if the intent is not to emphasize that employees on irregular hours should be treated as much as possible like employees on regular hours. This is reinforced by the second reference to "hours of work prescribed" in paragraph one, which assumes that some of the employees on irregular hours will often work the same hours as regular hour employees. Since the emphasis in Appendix 2 seems to be on the equivalence between the re9ular and irregular hours employees, it would follow that those on irregular hours would work the 261st or 262nd working days in the year at their normal rates, if that is the number of working days in the particular year. The union would argue that these extra two days should be compensated at overtime rates, if 1885 hours has been exceeded in the year and that the plain meaning of "I885 hours" demands this result. This Board does not agree. If one looks to the language in "Hours Per Averaging Period," one finds the phrase "1885 hours, which corresponds to a 36% hour week." This statement is correct only if there are 260 working days. Using the union's contention, -a- if there were 261 working days, 1885 hours would correspond to a working year of 52.2 weeks and a 36.11 hour week, while if there were 262 working days, 1885 hours would correspond to a working year of 52.4 weeks and a 35.97 hour week. The parties clearly intended that the employees on the averaging system would work on a 36L4 hour weekly average, as the references to 36k hours throughout the Appendix make clear. The union's argument does not lead to this result, nor does it harmonize with the parties' goal of equivalency with other employees. Further assistance in interpreting the Appendix might come from evidence of the History of the Appendix. Clearly, the wording of the Appendix is ambiguous, because 1885 hours "corresponds" to a 36% hour week only in certain years and because it is unclear whether the "stipulated" annual requirement is 1885 hours or the total hours corresponding to a 36% hour week. Some evidence as to whether the parties intended 1885 to be an annual maximum is provided in the Agreed Statement of Facts (Ex. 2). The present Appendix is the outgrowth of a policy and procedure regarding averaging of hours of work that was first implemented on September 1, 1972. The policy and procedures, contained in management Directives D-209 and D-209A dated August 30, 1972 and January 12, 1973 (Appendix 1A and 16 of Ex. 2), were superseded by the present collective agreement on January 28, 1976, but the policy and procedures were wholly incorporated in Appendix 2 of the collective agreement. The Ministry, from 1972 to 1976, has‘treated the averaging period as 260, 261, or 262 working days or 1885, 1892.25, or 1889.5 working hours, depending on the year. In 1972-73 and 1973-74, the total number of working hours was 1885; in 1974-75, it was 1892.25; and in 1975-76 (the year of the grievance), it was 1899.5. The Ministry's focus, in administering the overtime provisions, has been on maintaining the 36% weekly average and the 'equivalence with the employees covered by Article 7. It might be argued that the history of the Appendix shows that the parties intended this practice to continue. It is difficult to reach that conclusion on the evidence. The question as to whether the work year could exceed 260 days (and 1885 hours) did not arise until 1974-75. There -9- is no evidence to show that the union agreed to the employer's interpretation that the figure of 1885 hours was an example only, which could be exceeded when the work year exceeded 260 days. Mr. Flett protested the 1974175 calculation, although that is not an issue in this case. The union protested the employer's calculation in the 1975-76 work year, its first opportunity to do so under the collective agreement. Therefore, the union cannot be said to have agreed, by its conduct, to the employer's interpretation of the Appendix. Nevertheless, the Board concludes that the intention of the parties, from the wording of the Appendix and the structure of the collective agreement, was to treat the employees on the averaging system similarly to those on fixed hours. In coming to this conclusion, the Board does not ignore the plain meaning of the collective agreement, nor does it add to the number of classes of hours bases in paragraph 6 (Hours Per Averaging Period). There are only three classes of hours bases contemplated in the Appendix: 1885 hours, which corresponds to a 36% hour week; 2080 hours, which corresponds to a 40 hour week; and 2496 hours, which corresponds to a 48 hour week. In each case the emphasis in the particular class is on the weekly equivalent. Thus, the stipulated annual hours in Appendix 2 is 1885 hours when corresponding to a 36% hour week and 1892.25 hours or 1899.5 when thosehours correspond to a 36% hour week on an annual basis. There is no doubt that the intent of the parties could be more clearly expressed and in future negotiations the parties would be well advised to revise the wording of the Appendix. The parties referred us to the case of Ontario Housing Corporation Employees Union Local 767 CUPE and Ontario Housing Corporation, 77/76. The dispute in that case centred on the number of weeks to be used in calculating the breakdown of an "annual" salary into bi-weekly payments. Once again the : problem of leap years and extra working days arose. In that case, the Board focussed on the sum set as "annual" salary and treated that as the maximum which should be paid each,year. The grievor here would have us reach the same conclusion, focussing on the 1885 hours as the maximum number of hours that can be worked. However, the~ontario Housing Corporation case'is distinguishable, for the collective agreement provisions in question are different in the two cases. Here, the hours provision is not an annual maximom, as is the annual salary. It is an annual maximum if it corresponds to a 36% hour week. ,The focus of Appendix 2 is the hours of work calculated as a weekly average of 36% hours. Therefore, the employer did not err in refusing to pay overtime for the 14% hours of work in excess of 1885 hours in 1975-76, when there were - 10 - 262 working days. The grievance is dismissed. Dated at Toronto this 19th day of January, 1979 7-c ----P--,: Katherine Swinton Vice-Chairman I concur Mary Gibb Member I dissent (See below) Ron Cochrane Member Dissent With respect I am unable to agree with the majority board report for reasons which follow: The parties agreed to a statement of fact which essentially recites the employer's practice of administering Appendix 2. In addition it also notes the total number of hours accumulated by the grievor in the 1975/76 averaging period as being 1899.5. The issue as defined by the parties is whether Mr. Flett was entitled to the straight time compensation that he received for the 143 hours accumulated in excess of 1885 or to overtime compensation for these hours. - 11 - The issue involves an interpretation of the "Hours Worked Over Annual Requirement" section of Appendix 2 the relevant portion of which is repeated here for the sake of convenience. "Hours Worked Over Annual Requirement: At the end of the averaging period, any excess hours standing to the employee's credit, over and above the stipulated annual hours requirement, will be: - Considered as overtime, and - Multiplied by one and one-half to show the employee's overtime credit, for pay or compensating leave purposes." The union's.argument is essentially that the parties at the paragraph entitled "Hours Per Averaging Period" in Appendix 2 have identified three separate hourly totals of "work required" for the one year averaging period. In the grievor's case it was agreed that he fell under the 1885 hours total and that the averaging period was the fiscal year. It was further agreed that by the end of the fiscal year 1975/76 the.grievor had accumulated , 1899.5 hours. The union contended that at the end of the averaging period there was an excess of 14.5 hours standing to the employee's credit, over and above the "stipulated" annual hours requirement and therefore those excess hours had to be considered as overtime. The employer argued that the hourly annual totals recorded at the "Hours Per Averaging Peridd" were to be taken as examples only and these hours could vary depending upon'the total number of. days in the work year. In support of this position the employer relied upon its practice of administering Appendix 2 and to the fact that the annual hourly total of i . 7 j - 12 - 1885 does not always "correspond to" a 36% hour week. In fact this is so in only three fiscal years out of ten between the 1971/72 fiscal year and the 1980/81 .fiscal year. The employer argues that the "annual hours.requirement" for the 1975/76 fiscal year was 1899.5 hours and not 1885. Therefore there were no excess hours standing to the employee's credit at the end of the averaging period and therefore there was no overtime. The employer's practice of administering Appendix 2 is not a relevant consideration in interpreting the Agreement unless it could be shown that there is an ambiguity in the clause to be interpreted. The arbitrator in me Teamsters Union, Local 880, and C & W Asphalt Paving Co. (19671, 18 L.A.C. 156 (Palmer), puts the matter this way at p. 157. "Myriads of cases indicate that where there is no ambiguity in the terms of the agreement . . . past practice is irrelevant for the purpose of establishing a practice at variance with the terms Of the agreement." In Re U.A.W., Local 1132, and Blackstone Industrial Products Ltd.(1969/, 20 L.A.C. 176 (&own), the union filed a grievance alleging that the company was violating the collective agreement by not paying the premiums for certain fringe benefits for probationary employees. The company relied on practice in which the union had acquiesced over a period of five years. ,The arbitrator allowed the grievance, holding that past practice was irrelevant in the face of clear and unambiguous language that entitled probationary employees to ,the payment of the premiums in question: See alSO Re Corporation of City of Victoria and Canadian Union of Public Employees, Local 50 (Weller), 7 L.A.C..(2d) p. 239, where at : i - 13 - page 243 an agreement that the undisturbed past practice of the City implied that it was the correct interpretation of the Clause in dispute was dismissed because "the language of the agreement on its face is sufficiently clear that extrinsic evidence may not be used to alter its meaning...". Therefore it is clear that unless there is an ambiguity in the "Hours Worked Over Annual Requirement" section the employer's practice in ,- administering Appendix 2 is irrelevant. Can it be said that there is an ambiguity in this section of the agreement. The section indicates that "a&' excess hours standing to the employee's credit at the end of the averaging period over and above the stipulated annual hours requirement will be considered as overtime. It will be noted that the language of this section was drafted in terms of hours and was not drafted in terms of work days or work week or corresponding work weeks. The expression "the averaging period" is not in dispute and in this case is the fiscal year. The expression "stipulated annual hours requirement" is an obvious referral .back to some other section in the Agreement where annual hours requirement is discussed. The only reference in the Agreement to annual hours requirement is in Appendix 2. More precisely in the "Calculation of Hourly Rate" section of Appendix 2 where there ins a specific reference to lE85 and two other annual totals. This is an indication that the parties have arbitrarily established 1885 as the figure which equals, "corresponds to" a 36% work week regardless of.the number of days in the work year, i.e., 1885 - 14 - equals 36% in all cases. There is also a reference to the number of hours of work required for the one year averaging period at the "Hours Per Averaging Period". As in the "Calculation of Hourly Rate" section, there is mention of only three annual total hours: 1885, 2Q80 and 2496. I am unable to find anywhere in the Agreement where there is provision for a sliding scale of annual hours requirement dependent upon the number of work days in the work year. To the contrary, whenever there is a reference to annual hours requirement there is a specific mention of three annual totals: 1885; 2080 and 2496. Therefore the only stipulated annual hours requirement are the annual totals referred to above. In fact there is a specific reference in Appendix 2 to Changes to Hours Per Averaging Period. That section provides a mechanism for altering the total annual hours "from that now shown". The only base hours shown are 1885, 2080 and 2496. The evidence revealed that the employer did not rely on this section to alter the base from 1885 to 1899.5. In order to achieve the result urged upon us by the employer we would have to completely ignore the word "stipulated" which modifies the expression "annual hours requirement". This result could have been achieved had the parties stipulated that in the averaging period where there are 260 work days the annual hours requirement is+1885 hours; for those where there are 261 work days the annual hours requirement is 1892.25; and for those where there are 262 work days the annual hours -v I I . . c 2 ;' - 15 - requirement is 1899.5. The parties failed to do this, in fact they expressly provided that the annual hours requirement of 1885 hours equated to a 36% hour work week. This would appear to be so regardless of the number of work days. Accordingly then, the 1885 total is inflexible. We are reminded that the section "Hours Worked Over Annual Requirement" provides for the payment of overtime for "'any" except hours . . . over and above the stipulated annual hours requirement". According to section 27.12 of the Agreement between the parties: "The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement." It is clear that the only stipulated annual hours requirement in the Agreement is a reference to either one of three annual hourly totals: 1885, 2080, and 2496. It is also clear that the applicable annual hourly total, insofar as the grievor is concerned, is 1885. There is no ambiguity, therefore by the words of the Agreement any excess hours above the stipulated annual hours requirement is overtime. The evidence reveals that the grievor had to his credit 1899.5 hours at the end of the fiscal year and therefore the last 14.5 hours must be considered as overtime. RL=+ Ron Cochrane - Member