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HomeMy WebLinkAbout1978-0149.Tocher.79-03-06i49/78 Between: IN THE MATTER OF ANY ARBITRATION Under The CRO!dN EMPLOYEES~COLLECTIVE BARGAINING ACT Before THE GR!EVANCE SETTLEMENT BOARD Mr. Douglas Tocher and Grievor Eefore: The Crown in Right of Ontario Ministry of Correctional Services Employer Mr. J.F.W. Weatherill Vice-Chairman Mr. A. Fortier, Member Mr. H.E. Weisbach Member For the Grievor: Mr. G. Richards Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Employer: Mr. J. F. Benedict Manager, Compensation and Staff Relations ' Ministry of Correctional Services 2001 Eglinton Ave. East Scarborough, Ontario Hearing: February 16, 1979 Suite 2100, 180 Dundas St. West Toronto, Ontario -2- In this grievance, dated May 1, 1978, the grievor seeks .:., ::: ‘: ,::: compensation for an alleged shortage of four hours' pay in the holiday pay which he received in respect of Good Friday,, March 24, 1978. The facts are the subject of an agreed statement, and are as follows: STATEMENT or FACT 1. Mr. Tocher is employed with the Ministry of Correctional Services at the Quinte Detention Centre in the position of General Duty Officer (Correctional Officer 2) and has been employed in the Ministry since January 1966. 2. Correctional Officer 2 is a classification assigned to hours of work schedule 4.7 in accor- dance with Article 7.2 of the Collective Agreement between Management Board of Cabinet and Ontario Public Service Employees Union (February 1, 1978, to January 31, 1979). 3. The settlement required of Mr. Tocher's grievance,and as amended by his correspondence of June 22, 1978, to Mr. S. Shoom, Regional Direc- tor, Eastern Region is "four (4) hours at my basic rate of "pay" for working the statutory holiday on Narch 24, 1978 (Good Friday). 4. Mr. Tocher worked a regular 12 hour shift on March 24, 1978, as part of his regular work schedule and he was paid 12 hours at time and one half (l&j his basic hourly rate in accor- dance with Article 19.1,and 8 hours at his basic hourly rate in accordance with Article 19.2. Article 19 of the collective agreement is as follows: ARTICLE 19 HOLIDAY PAYMENT 19.1 Where-an employee works on a Holiday included under Article 9 of the Employee Benefits Agreement, he shall be paid at the rate of time and one-half (1% for.311 hours worked with a minimum credit of seven and one quarter (7&) or eight (8) hours, as applicable. :: j. : .’ .# : j: I . . .-. .,.; -3- 19.2 In addition to the payment provided by section 19.1 'an employee shall receive either seven and one-quarter (7%) or eight 481 hours pay as applicable at his basic hourly iate 01 compensating leave of seven and one-quarter (7fl or eight (81 hours as applicable, provided the employee opts for com- pensating leave prior to the holiday. 19.3 When a holiday included under Article 9 of the Employee Benefits Agreement coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to receive another day off. 19.4 Any,compensating leave accumulated under sections 19.2 and 19.3 may be taken off at a time mutually,agteed upm . Failing agreement, such time off may be taken in conjunction with the employee's vacation leave or regular day(s) off. 19.5 Any compensating leave accumulated under sections 19.2 and 19.3 in a calendar year which is not used before March 31 of the following year shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 date may be extended by agreement at the local or Ministry level. 19.6 Notwithstanding anything in Article 19, employ- ees who are in classifications assigned to Schedule 6, who are required to work on their day off on a holiday included in Article 19 of the Employee Benefits dgreementr shall receive equivalent time off. Being an employee assigned to schedule 4.7 (as noted inthe agreed statement of facts), the griever would, by virtue of article 7.2 of the collective agreement, work eight hours per day. Article 7.6, however, contemplates that local arrangements may be made relat- ing to variable work days or weeks as such arrangements were made in this case. The effect of such arrangements is that the griever works fewer, but longer, work days. His normal work day, it would seem, is of twelve hours. Good Friday, March 24, 1978, was a holiday under article 9 of the Employee Benefits Agreement, but it was a regularly scheduled work -4- day for the grievor, and he did work on that day. He was paid for all hours worked (twelve hours) at the rate of time and one-half. This was a correct application of article 19.1 of the collective agreement. In addition to pay for time worked on the holiday, the grievor was entitled to holiday pay as such, or to compensating leave. It would appear that the grievor did not opt, prior to the holiday, for compensating leave. He was entitled, then, to holiday pay pursuant ~ to article 19.2 of the collective agreement. He was paid eight hours' pay in purported compliance with that article: His claim is that he was entitled to be paid twelve hours' pay. Article 19.2 is' quite explicit and precise. Where holiday pay is payable in addition to pay for time worked (as is the case here), then the employee is to receive either seven and one-quarter or eight hours' pay, "as applicable" at his basic hourly rate. The number of hours "applicable" in any case may be determined by reference to article 7 of the collective agreement, which sets out hours of work. For employees (such as the grievor) on schedule 4.7, 'the normal hours of work per day are to be eight. For certain otheremployees, the normal hours of work per day are seven and one-quarter. In fact, as we have seen, the grievor's actual schedule was one of twelve hours per day, but that is by virtue of a local arrangement of the sort contemplated by article 7.6. In article 7 generally, the schedules referred to are those of either seven and one-quarter or eight hours, and in the grievor's case it was the eight-hour schedule which was "applicable" for the purposes of article 19.2. Agreement to a different daily schedule does not carry the ,:: ” 7 -5- implication that holiday pay will also be changed. The rate of pay for hours worked on a holiday is fixed by article 19.1, and that rate is payable for all hours worked on a holiday, regardless of their number (subject to a certain minimum). But holiday pay itself is of either seven and one-quarter or eight hours, and in the grievor's case it is clear that it is of eight hours. It would be quite anomalous for that benefit to be increased in the case of those employees who happened to be covered by an agreement changing'the normal scheduled hours. In any event, it is our view that the provisions'of the collective agreement are clear in that regard, and that the grievor was not. entitled to any greater holiday pay than he received. The union contends, however, that there exists an agreement which in effect amends the collective agreement and which provides for- the increased holiday pay which is here claimed. Such agreement, it is said, is to be found in the practice of the parties, and is supported.by the text of the agreement relating to the twelve-hour schedule. The collective agreement itself, in our view, is not ambiguous, and there Is no occasion for having resort to extrinsic evldence.as an aid to its interpretation. The agreement as to the twelve-hour day (no official or agreed text is before us), does not purport to be a collective, and does not purport to amend the holiday pay provisions of the collective agreement. It is not signed by the parties. A letter from the president of the local union, in acknowledgment of the memorandum setting out the local agreement, deals in,ter alia, with the matter of, -6- compensating days off, but does not deal expressly with the matter in issue here. A subsequent memorandum from the employer sets out an "interpretation" of article 19. Insofar as it is material, that interpretation would appear to have been followed in this case. It sets out as an example the case of a correctional officer on a twelve- hour shift schedule who is scheduled to work, as a regular working day, on a holiday. Such officer, it'is said, would be entftled to twelve hours' pay at one and,one-half times his basic rate, plus eight hours' pay at straight time (or compensatory leave). That is precisely this case, and that is what was done here. It is, as we have noted, a correct interpretation of the collective agreement. It is agreed that in fact some employees at least have been paid in the manner now sought by the grievor. In our view, such payments were in excess of what was required by the collective agreement. They do not, however, bind the employer and there is no document before us having the effect of amending the clear provisions of the collective agreement. For the foregoing reasons, it is our conclusion that there has been no violation of the collective agreement, and that the grievor was correctly paid holiday pay pursuant to article 19.2. Accordingly, the grievance is dismissed. DATED AT TORONTO, this 6th day of March, 1979. (Signed) . . . Wea then11 Vice-Chairman (Signed) A. Fortier Member (Signed) - U^".C,... ADDENDUM TO GRIEVANCE 149/78 (Tocher) After carefully reading the award I reluctantly signed.the award of the Board. However I should set out my reasons for not dissenting as much as I.would have liked to. My reasons for signing the award can be found in the fact that the Union, to my knowledge has not grieved the Bulletin of November 30th, 1977 which sets out the new procedure or interpretation of article 19 pertafning to holiday pay. It is my opinion that the union should have grieved the bulletin and its content, if they wish to take up grievances which result from the contents of the bulletin. Since the bulletin was , apparently accepted, I find it difficult to disagree with the findings of the Board. March 3, 1979. (Signed) Henry Welsbach.