The URL can be used to link to this page

Home My WebLink About1978-0179.Attwood et al.79-11-16179178 (Dissent)*** Between: Before: For the Grievor: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Albert Attwood et al And Ministry of Revenue J. R. S. Prichard M. Gibb 'R. Cochrane (Grievor) (Employer) L. Stevens Ontario Public Service Employees Union For the Employer: D. S. Nagel Civil Service Commission Hearing: January 25, 1979 Suite 2100, 180 Dundas Street West, Toronto, Ontario. *** NOTE This copy of the dissent of Mr. R. Cochrane should be attached to the copy of the majority award dated the 31st of October, 1979 and already distributed. November 16, 1979 Registrar .- -7 0 0 I am unable to agree with the majority award for the following reasons: The facts of this grievance are not in dispute. Mr. Attwood is employed as a Clerk 3, General by the Ministry of Revenue in the Essex Regional'Assessment Office located at Windsor, Ontario. He has been employed by the Ministry since 1970. His normal hours 'of work are 36% per week and 7% per day scheduled from 8:30 a.m. ~ to 4:45 p.m. Monday through Friday. On occasion, the grievor has been required to perform overtime work following the completion of his shift and continuing beyond 5 p.m. The grievor is compensated for these overtime hours at the rate of 1% times his basic hourly rate, in accordance with Article 13. Mr. Attwood claimed and was denied a shift premium under the provisions of Art. 11 in respect of the overtime hours worked beyond 5 p.m. It is the denial of this claim which forms the basis of.the dispute between the parties. The relevant provision of the collective agreement for the purposes of this grievance is Article 11: Article 11 - SHIFT PREMIUM 11.1 .4n employee shall receive a shift premium of six- teen (XC) per hour for all hours worked between five (5:OO) p.m. and seven (7:OO) a.m. Where more than fifty percent (50%) of the hours fall within this period the premium shall be paid for all hours worked. 11.2 Shift premiums shall not be consi&red as part of an employee's basic hourly rate. 11.3 Shift premium shall not be paid to an employee who for mutually agreed upon reasons works a shift for which he would otherwise be entitled to a shift preriim. Both the union and the employer in their submissions referred the Board to an earlier grievance which had been decided by this 6oard, the Cameron award. - -3- z-. .,f The facts of the Cameron grievance are recorded beginning at Page 4 of the award and are repeated here for ease of reference. Mr. Cameron worked both overtime hours and on one or more holidays be&een the hours of five (5:OO P.M.) and seven (7:OO A.M.). It would appear that the overtime was some- times worked in the form of a,full additional shift, which in Mr. Cameron's situation means either 8 or 12 hours, and at other times for a period of hours amounting to less than a full shift. If he commenced work at 7:OO A.M. he received twelve hours at straight time with the last two hours that fall after 5:OO P.M. attracting an additional 16o in accord- ance with Article 11. However, when he was assigned overtime work in addition to these hours on any particular day, and such additional hours fell between the hours of 5:OO P.M. and 7:00 A.M. he was paid time and one-half for these hours but not the additional 16C per hour under Article 11. In Cameronthe Board was not told the number of hours worked on the holiday or holidays during the period in question, butt assumed that the assigned work was also either in the form of a complete shift or in lesser hourly amounts. The major difference between the Cameron grievance and the present‘one is a portion of Mr. Cameron's shift attracted a shift premium while Mr. Attwood's shift does not. They are similar in the sense that both employees worked during the day and the period of overtime was an extension to their normal hours of work. The issues in the Cameron grievance concerned the pyramiding of benefits. In this case the employer submits the issue is fundamenta ,llY different. In its submission the thrust of the employer's argument was based on the proposition that if Mr. Attwood's shift could not attract a premium then neither could any overtime worked as an extension to that shift. In support of its'submissions the Employer referred the Board to 3 published labour arbitration decisions; Re Allied construction Council and Hydra Electric Power Commission of Ontario, 18LAC43 (Hanrahan); Re Printing Specialties and Paper Products union, Local 466, and Canada Foils Ltd. 19LAClBl (O'Shea); Re Allied Construction Council and HEPC of Ontario (1961), 12~~C105 (Donley). All of-these cases can be distinguished from the present one both on the fact situations and the language used in the collective agreement. For example in the Allied Construction case decided by Judge Hanrahan, the language specifically made reference to which shifts would,1 attract a differential. Employees required to work shift work shall receive the following differentials: Operating Engineers and Auto and Diesel Mechanics Second Shift .15C per ho&. Third shift .25c per hour In the‘printing Specialties case again there was specific refer- ence in the agreement as to what shifts would attract a premium i.e. "Employees on afternoon and night shifts will . receive .._ premium . . ..(I In the second Allied Construction Council case (Donley) there was again specific reference as to which shift would attract the premium "Ten cents per hour for the second shift on a two shift per day operation provided the'shift begins before and ends after 12 midniqht." The Employer also drew our attention to Article 11.03 as support for its submission that the hours for which a shift premium are to be paid must be referable to a specific shift. This submission was adequately answered in the Cameron award at Page 27 where the Board found: I - .i -5- The employer also submitted that the reference to a "shift" in art. 11.03 is an indication that the hours for which a shift premium are to be paid must be referable to a specific shift. However, in numerous recent cases arbi- trators have held that overtime hours in excess'of an employee's shift are referable to that shift. Moreover in art. 11.1 the premiums are not expressly related to shifts but rather to "all hours worked between five (5:OO)p.m. and seven (7:OO) a.m. We would also note that art. 11.3 is identical to art. 13.3 of the preceding agreement between the parties and 13.2 of t&t agreement was very clear t&at shift premiums and other premiums could be~paid for the same hours. In our view if the parties had intended to alter this result they would have done so specifically and not by merely relocating-the ideas contained in art. 13.2 and expressing them more concisely. We also note that art. 13.1 of the current agreement makes it clear that overtime is to be paid with respect to an employee's basic hourly rate which avoids some of the computation problems encoun- tered in the earlier cases (i.e. Silverwood Dairies Ltd. (Sup%a)) and this is again some indication that shift premiums and overtime can be paid concurrently. . In the end we are left with applying the language of this collective agreement to the fact situation presented by the grievance. Article 11.1 states: "An employee shall receive a shift premium of six- teen cents (16C) per hour for all hours worked between five (5:OO)P.M. and seven (7:OO)A.M. Where more than fifty percent (50%) of the hours fall within this period the premium shall be paid for all hours worked." The article as written entitles an employee who works between five (5:OO)P.M. and seven (7:OO)A.M. to a premium. If more than 50% of his work is performed between this time frame then he would be entitled to the "premium" for "all hours worked" regardless of the fact that some of those hours may be before 5 P.M. or after 7 A.M. The words "for all hours worked" are incapable of being regarded i’ -ii- as being 'ambiguous either latently or patently. It is clear from a read- ing of 11.1 that it is not the shift which attracts the~premium but hours worked within the shift a certain defined period of time. I am comforted in that conclusion by the Cameron decision at Page 27: "Moreover in Art. 11.1 the premiums are not expressly related to shifts but rather to "all hours worked between five (5:OO) P.M. and seven (7:OO) A.M." The facts indicate that on occasion Mr. Attwood is required to work overtime which extends beyond 5 p.m. Therefore it is clear that on these occasions he is working after 5 p.m. Whether these hours 0 are treated as an ,extension to ,his shift or they are treated separately would not alter this fact. The present wording of Art. lbdoes not restrict the payment of a premium to specific shifts. If this were the parties intentions then clearer language is required. For the foregoing reasons I would have allowed the grievance. With respect the majority award has placed a meaning on Art. 11 which the language cannot reasonably bear and would require the insertion of the words "on shifts" after the words "for all hours worked" in Art. 11.1 Toronto, Ontario November 16, 1979