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HomeMy WebLinkAbout1983-0549.Astorino et al.84-07-31Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before~ THE GRIEVANCE SETTLEMENT BOARD OPSEU (E. Astorino, et al) - and - The Crown in Right of Ontario (Ministry of Government Services) R. J. Roberts, Vice Chairman F. D. Collom, Member W. A. Lobraico, Member For the Grievor: Raj Anand, Counsel Laskin, Jack & Harris Barristers & Solicitors For the Employer: L. McIntosh, Counsel Crown Law Office Civil Ministry of the Attorney General Hearing Date: April 13, 1984 Grievor Employer DECISION The issue in this arbitration involves the impact of a compressed work week arrangementupon entitlement to holiday payment under Article 19 of the collective agreement. For reasons which follow, the matter is remitted to the parties for further proceedings not inconsistent with this Decision. It seems that on April 15, 1976, the Ministry of Government Services entered into a formal agreement with the Union to implement a compressed work week in its Computer Services Division. Under this agreement, the parties provided that instead of working'for 7 l/4 hours per day, 5 days per week, employees would work 12 l/12 hours per day for 3 consecutive days per week. The agreement also dealt with a number of details that would be affected by the new arrangement, including hours of work, overtime, attendance and vacation credits, and statutory holidays. With respect to statutory holidays, the agreement provided, "The Statutory Holiday provisions contained in the Working Conditions Agreement Will apply except that payment and/or time-off will be based on a working day [of] 12 l/12 hours rather than 7 l/4 hours." This agreement expired on September 12, 1976. According to the evidence presented at the hearing, it was renewed - 3 - by the parties on a yearly basis. Initially, the parties drafted formal agreements embodying the same terms; however, after a number of years this practise was discontinued because it seemed to involve too much in the way of paper work. On the evidence, there was no doubt that despite the absence of a formal agreement it was the intention of both parties that precisely the same terms as those embodied in the earlier formal agreements would govern their relationship with respect to the compressed work week. In early 1983, however, it came to the' attention of the Ministry that under the foregoing compressed work week arrangement it might have been paying out more in the way of holiday pay than required by the collective agreement. The then current collective agreement, which had just been negotiated between the parties, included as an Appendix a model agreement with respect to compressed work week arrangements. This model agreement indicated in one of its provisions, Article 4.1, that holiday payment under Article 19 of the collective agreement was to be calculated on the basis of the number of hours per day that would have been worked by the employees if they had not been working under a compressed work week arrangement. With respect to the employees in the Computer Services Division of the Ministry, this suggested that Management's sole obligation under Article 19 was to make payment or grant time off upon the basis of a 7 l/4 hour working day rather than on the basis of a 12 l/12 hour working day as was provided in the Ministry's arrangement. In light of this information, the Ministry decided to change its practise. On February 25, 1983, the Personnel Services Branch of the Ministry sent to Mr. Adam, the Manager of the Operations Unit of the Computer Center, a memorandum which essentially instructed him to calculate holiday payment on the reduced basis. The memorandum also suggested that Mr. Adam enter into a formal compressed work week agreement with the Union which would reflect this change and would "ensure conformity and consistency among the.'Data Centres." Shortly thereafter, Mr. Adam circulated copies of the memorandum to representatives of the Union. He also attempted to engage in negotiations with the Union for a revised compressed work week agreement which would incorporate this change regarding holiday payment. A number of drafts apparently passed back and .forth between the Ministry and the Union: however, by the date of the hearing, a mutually acceptable formal agreement had yet to be reached. The first holidays to arise. after this process was initiated were Good Friday and Easter Monday. The former. -5- fell on April 1, 1983; the latter, on April 3, 1983. Holiday payment for these holidays initially was calculated by supervision on the basis of the formula set forth in the longstanding compressed work week arrangement between the parties, i.e., on the basis of 12 l/12 hours per day. The Payroll Office, however, held back payment with respect to these claims. On June 3, the Payroll Office issued payment for these holidays on the reduced basis of 7 l/4 hours per day. Attached to each cheque was a memorandum explaining the way in which the Ministry calculated the payment. Thereafter, on July 5, 1983, the grievances leading to the present arbitration were filed. At the hearing, counsel for both parties devoted the bulk of their argument to the question whether the longstanding participation by the Ministry in the prior arrangement between the parties regarding the compressed work weekestopped. the Ministry from unilaterally changing its position. It does IlOt appear to the Board, however, that it iS necessary for equitable doctrines such as the doctrine of promissory estoppel to be called in aid of the law in Order to achieve an appropriate resolution of the present case. As already indicated it seems to be clear that from September 12, 1976, the parties renewed on a yearly basis the entirety of their original compressed work week arrangement. It did not matter -6- that after an initial period of years, the parties ceased renewing this arrangement in a formal, written document. Article 7.6 of the collective agreement, which gives the parties authority to enter into such compressed work week arrangements, does not require that they be formalized in writing. As one of the terms of this arrangement, the parties themselves agreed upon a means whereby it might be terminated before it was due to expir~e in the following September. In paragraph 6, the parties agreed that "[tlhis' Agreement may be terminated upon 30 days written notice by either the Ministry of Government Services or by the Ontario Public Service Employees Union." Accordingly, the Ministry was entitled to be relieved of its obligations under the compressed work week arrangement upon giving 30 days notice in writing to the Union. Upon the expiration of this notice period, the only remaining contractual obligations of the Ministry would have been those under the collective agreement. The facts of this case do not indicate precisely when Mr. Adam made available to a responsible Officer of the Union the February 2,5 memorandum from the Personnel Services Branch. This date is significant because it represents the date upon which the Union, in effect, was given written notice of termination of the then existing compressed work week - - 7 - arrangement. In this regard it is noteworthy that paragraph 6 of the arrangement did not specify that the written notice had to be in any particular form, nor did it specify that it had to be addressed to any particular person. All that was required was a writing terminating the arrangement. There could have been no doubt that this is what effectively .was communicated in the memorandum. Given the uncertain state of the evidence, it might well be that the 30-day notice period that beg,an to run when the memorandum came into the hands of a responsible Union Officer did not expire until after April 1 or April 3, or both. If, it did expire after one or both of these dates, the Ministry was required to make holiday payment as required in the compressed work week arrangement. If not, the Ministry was entitled to make payment solely upon the basis of its obligations under Article 19 of the collective agreement. The compressed work week arrangement would have been effectively terminated. Ordinarily, the absence of an important detail in the evidence such as the date upon which the Union effectively received written notice of termination, would be fatal to the case of the party bearing the onus. In the present case, that would be the Union. Here, however, it would not be -8- appropriate to reach such a resolution. While the ground upon which we have decided the matter was fairly raised in the evidence, it was not part of the main thrust of the case presented by either side. In these circumstances, fairness requires that the matter be remitted to the parties for determination of the question whether the written notice was effectively received by the Union 30 days before the Good Friday holiday or the Easter Monday holiday. We will retain jurisdiction pending the completion of this process, and we will reconvene at the request of either party to resolve this particular issue in case the parties are unable to reach a satisfactory conclusion. DATED AT London, Ontario this 31s.t day of July , 1984. F. Collom, Member "I DISSENT" - See attached W.A. Lobraico, Member DISSENT Re: E. Astorino, et al File 549183 I believe I must dissent with~the decision of the Vice- Chairman. While the issue resulting from the decision is not great, there are important factors which should be considered and which rule out the solution chosen. The compressed,work week agreement relied upon by the parties and the Vice-Chairman expired on September 12, 1976 and cannot now be used to provide resolution of the employees'grievances. Although the practice of compensating employees for statutory holidays, based on a 12% hour day continued, it was effectively nullified by the Working Conditions Agreement signed by O.P.S.E.U. and Management Board of Cabinet on December 17, 1982. Up until that time some ministries did enter into local agreements such as that signed in 1976 because the Collective Agreement was silent on the method to be used for statutory holidays. As this matter is specifically covered by Article 7.6 and Appendix 4 in the agreement signed on December 17, 1982 it was no longer petmissable for the Ministry and the Union/employees to continue the verbal arrangement. In fact, it would appear that the agreement to use 12% hours for statutory holidays, was between the manager of the Downsview Computer Centre and his employees. The grievances should therefore fail regardless of when the Personnel Services Branch memorandum of February 25, 1983 was passed along to the employees and the Union. . . ..I2 -2- On the question of estoppel it was also clear that the Union case must fail for essentially the same reasons. Any agreement was between the manager and the employees,and even if the union was involved this cannot bind Management Board of Cabinet. As the Collective Agreement was signed on December 17, 1982 the estoppel question cannot be applicable to an issue arising in 1983. For all of these reasons I would have dismissed the grievances completely. Respectfully,