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HomeMy WebLinkAbout1985-0695.McGregor et al.88-10-20EMDLOYES DE LA CO”“ONNE DEL’ONTARKJ C$IMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EWLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (McGregor, Steele. Noon) Gr ievors - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer T.H. Wilson J. Anderson M.F. O'Toale Vice-Chalrperson Member Member Before: For the Grlevor: A. Ryder Counse 1 Gowllng and Henderson Barriste?s and Solicitors For the EmDlover: Hearina: I DECISION The three grievors claim compensating leave in lieu of payment for work performed on call-back. The parties filed an agreed statement of facts for each grievor. I set out those facts applying to the first-named grievor, McGregor, as the model. The issue remains the same for each: 1) McGregor is employed as an Instructor 2, Recreation and Crafts at the Rideau Regional Centre. 2) He has a continuous service date of May 8, 1972. 3) He is in hours of work Schedule 4.7 for which normal hours of work are 40 hours per week and 8 hours per day. 4) At the time of the grievance he was working under a compressed work week agree- ment. 5) On March 5, 1987 he was working the 8:00 a.m. to 8:30 p.m. shift. 6) Subsequent to the completion of his shift, McGregor was called into work to take part in a search for a resident. 7) McGregor returned to the Centre at 9:00 . . on March 5, ;.:. 1987 and worked to 11:OO 8; On March 24, 1987 McGregor grieved that he was entitled to compensatory leave in lieu of payment for work performed on call-back. 9) The Ministry maintains that McGregor was not entitled to leave in lieu of payment and local management did not consider the request for leave under Article 13 as it was not con- sidered applicable. - 2 - The only other fact that needs to be noted is that the grievance of M. Noon, whose claim relates to January 4, 1985, was during the period when the Public Service Act Regulation 881, 1014) was still in force and it provided: (4) Where a public servant is recalled to work on a regular working day after leaving his place of employment at the end of the regular working day, he is entitled to a credit of a minimum of four hours overtime. The relevant provisions of th e collective agreement are Article 13, especially clauses 13.2 and 13.5 and Article 14 and, by way of agreement, Ar_ticles 16 and 17. I set out their terms as follows: ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1 l/2) times the employee's basic hourly rate. 13.2 In this Article "overtime" means an authorized period of work calculated to the nearest half hour and performed on a scheduled working day in addition to the regular working period or performed on a scheduled day(s) off. 13.3.1 Employees in Schedules 3.1 and 4.1 ' who perform authorized work in excess of seven and one-quarter (7 l/4) hours or eight (8) hours as applicable, shall be paid at the overtime rate. 13.3.2 [omitted] 13.4 Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one-quarter (7 l/4) hours or eight (S) hours as applicable, shall receive compensa- ting leave of one and one-half (1 l/2) hours - 3 - for each hour of overtime worked, at a time mutually agreed upon. Failing agreement the Ministry shall reasonably determine the time of the compensating leave. 13.5 Where there is mutual agreement employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave. 13.6 Compensating leave accumulated 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. 13.7.1 Employees who are in classifica- tions assigned to Schedule 6 and who are required to work on a day off shall receive equivalent tiine off. 13.7.2 Notwithstanding 13.7.1 and Article 19.6 (Holiday Payment) employees who are in classifications assigned to Schedule 6 and who are assigned to forest fire fighting or related duties, shall be paid one and one- half ,(l l/2) times the 'employee's basic hourly rate, to be calculated on the basis of thirty-six and one-quarter (36 l/4) hours per week, for all such work after eight (8) hours in a 24-hour period. ARTICLE 14 - CALL BACK 14.1 .An employee who leaves his place of work and is subsequently called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of (4) hours pay at one and one-half (1 l/2) times his basic hourly rate. ARTICLE 16 - ON-CALL DUTY 16.1 "On-call" duty means a period of time that is not a regular working period, overtime period, stand-by period, or call- back period, during which an employee is required to be reasonably available for recall to work. 16.2 prior to be on ca 1 16.3 On-call duty shall be approved the time the employee is required to 1. Where an employee is required to be on call he shall receive twenty-five cents (25 ) per hour for all hours such employee is assigned to on-call duty. - 4 - ARTICLE 17 - MEAL ALLOWANCE 17.1.1 An employee who continues to work more than two (2) hours of overtime im- mediately following his scheduled hours of work without notification of the requirement to work such overtime, prior to the end of his previously scheduled shift, shall be reimbursed for the cost of one (1) meal to four dollars ($4.00) except where free meals are provided or where the employee is being compensated for meals on some other basis. 17.1.2 A reasonable time with pay shall be allowed the employee for the meal break either at or adjacent to his work place. [rest of Article 17 omitted1 The union counsel argued that its interpretation was in fact a "win - win" situation: for management it would provide greater flexibility since clause 13.5 provides for mutual agreement. He asks that if the grievance should succeed, the matter be remitted to management under Article 13.5 to consider. The counsel for the Ministry took the position that clause 13.5 does not apply to an Article 14 situation and in refusing to consider that provision the Ministry was 'correctly applying the collective agreement. ~The issue is therefore strictly one of the interpretation of the collective agreement. The union's basic argument is that call-back under Article 14 creates overtime within the definition of clause 13.2, Any provision in a collective agreement that is in conflict with a provision of a regula- - 5 - i.e. it is an authorized period of work calculated to the nearest half hour and performed on a scheduled working day in addition to the regular working period and that therefore 13.5 applies. It is also recognized as overtime under Public Service Act Regulations lO(4) when it was in existence. In the union's view-Article 13.2 defines overtime in the generic sense for inclusion within Article 13 not to create overtime within Article 13. There are many overtime situations within the collective agreement beyond Article 13, e.g. meal allowance under Article 17.1.1. Special overtime situations are dealt outside Article 13. Another case is Article 19 dealing with Holiday Payment. That of course has its own rate and its own in-lieu provision appropriate to the circumstances. In fact as I suggested to union counsel at the hearing, it is for these purposes virtually a self-contained code within the collective agreement. Counsel for the Ministry took the position that the Public Service Act Regulation was not relevant since with the enactment of the Crown Employees Collective Bargaining Act, the Public Service Act and its regulations applied for the most part to non-bargaining unit employees and it is the collective agreement which governs. I point out that, of course, as s. 30(3) of the Public Service Act in fact provides: - 6 - tion as it affects the employees of a bargaining unit covered by the collective agreement prevails over the provision of the regulation. The Ministry's principal argument is that Article 13.5 applies only to Article 13 and that Articles 13 and 14 are distinct and separate: Article 13 is overtime while Article 14 is call-back. The wording of Article 16 maintains this distinction. Reference was made to the Board's decision in Grant v. Ministry of Correctional Services (G.S.B. 197/83). In that case while the grievor was proceeding to the Millbrook Correctional Centre where he would commence his normal 3:00 p.m. shift an incident occurred near the Centre and he was direc.ted by a supervisor to investigate the incident. The giievor was paid one-half hour overtime at time and one-half. He grieved that Article 14 applied because there was no degree of inconvenience or disruption for the employee and on the facts the grievor was not called back, i.e. there was no instruction that the gr'ievor be physically present at work prior to the normal commencement time of his shift: he was in fact already there. Vice-Chairman Kennedy therefore held that on the plain language of the Article, the grievance must be dismissed. Rich v. Ministry of Correction- al Services (G.S.B. 442182) was also referred to in argument but sheds no light on our issue. Basically the Ministry's position is that the words "shall be paid" are mandatory and if the parties had intended that the alternative of in lieu time had been intended it would - 7 - specifically have been so provided in Artic .e 14 or by reference to Ar.ticle 13.5. By analogy Article 7 which sets out the compressed week model, specifically therein provides: Article 3.1 Authorized periods of work in excess of the regular working periods specified in Article 2.1 or on scheduled day(s) off will be compensated for in accordance with Article 13 (Overtime) of the Working Conditions and Employee Benefits Agreement, Also Article 4 deals with an election for holiday pay or in lieu time. And Article 23 of the collective agreement specifically Article 23.6 provides specifically for an optional compensating leave for travelling time credits. This is to be contrasted with on-call duty which in Article 16.3 provides only for payment. Article 23.6 was the subject of interpretation in Snider v. Ministry of Transportation and Communications (G.S.B. 509/83). In that particular case, Vice-Chairman Brandt at page 9, specifi- cally rejected treating Articles 13.5 and 23.06 similarly specifically because they used different language, namely "at the rate. . .earned" [13.5] and "basic hourly rate" C23.061. The Ministry and the union counsel disagreed on Article 17. The Ministry argued that Article 17 is also outside Article 13 and there is no in-lieu time available, i.e. 13.5 does not apply to either Article 14 or Article 17. The union argues they both fall within Article 13. By way of comparison, replied the union, neither Stand-By Time (Article 151 nor On-Call Duty (Article 16) are overtime. But both Articles 14 and 17 are - 8 - overtime, says the union, albeit special overtime and it would offend the Golden Rule of interpretation to find that in lieu applies to one kind of overtime butnot another kind. In the union's view the language of Articles 19, 23 and Model Agreement Article 4 support its argument. It is I believe important in understanding the issue to note the purpose of Article 14. cihat does it do? It guarantees a minimum amount of pay if called back to work. Namely four hours at time and one half. So if the employee leaves work at shift end at 4:OO p.m., is called back at 5:CO p.m., arrives back at his work place at 5:20 p.m. and does :C minutes of repair work, he gets six hours pay. The purpose of the Article is to set that minimum amount of pay. 1f he actually works, for example, six hours on call-back, he will get six hours times time and one-half - not because of Article 14 but under Article 13. Article 14 does not create the overtime. It only sets a minimum amount. It is all overtime under Article 13; Article 14 simply creates a minimum. Clearly Article 14 is functionally part of Article 13 and could without any violation of its function have simply been numbered 13.8. The reference to rate of pay in Article 14, as union counsel pointed out is in exactly the same language as the language of 13.1. If an employee on call-back works six hours, he gets a wage of nine hours - or he can elect under 13.5 and then the management has to decide on pay or in- lieu time. It makes no sense to say that he cannot ask for that option if he works less than four hours on call-back. in my view - 9 - he is in any event paid overtime under Article 13; and 14 only guarantees a minimum if he actually works less than four hours on the call-back. It is an interesting theoretical question to look at the other articles in the collective agreement. But I draw no conclusions from it for two reasons. (1) Articles 13 and 14 are entirely understandable together as physical and functional neighbours (2) the collective agreement is not like a single carefully drafted statute written by an experienced legislative draftsman who tries to use a legislative scheme ahd meticulously selects phrases with narrow meanings. References to such concepts or methods of interpretation are not, however, invalid or inadmissible - the collective agreement is not chaotic but those interpretive techniques are highly risky and can lead to scholastic type interpretations of a collective agreement that in fact emerged from successive negotiations. In this case, I find the references to the other provisions unpersuasive and incon- clusive. ~1 am satisfied that 13.5 does include overtime worked on a call-back. The grievances are allowed and these matters are remitted to the Ministry to decide what it wishes to do under 13.5. - 10 - DATED 4T TORONTO, Ontario this 20th~ day 9 / g'/ .r,pJ.,g THOMAS H. WILSON, VICE-CHAIRPERSON ; O'TOOLE, MEMBER