Loading...
HomeMy WebLinkAbout1985-0963.Fitchett and Shannon.87-07-02963185 964185 IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMBNT BOARD OPSEU (D. Fitchett and P. Shannon) -and- Griever THE CROWN IN RIGHT OF ONTARIO (Hinistry of Community and Social Services) Employer BEFORE: FOR THE GRIEVOR: FOR THE FXPLOYRR: D. Costen Legal Services Branch Ministry of Community and Social Services HEARING: n.3~ a, 1987 .I. Gandz F. Taylor E. Orsini Vice-Chairman Member Member D. Wright COUnSel Cowling and Henderson ’ -2- DECISION The Crievors, Dianne Fitchett and Pam Shannon, claim that they should be paid a shift differential according to Article 11 of the Collective Agreement which states: ARTICLE li - SHIFT PREHIW 11.. 1. I Effective March 16, 1987, an employee shall receive a shift premium of forty-five ccaca (450 per hour for all hours: worked between 5:00 p.m. and midnight. Where more than fifty percent (SO%) of the hours worked fall within this period, the forty-five cents (45+) per hour premium shall be paid for all hours worked. 11.1.2 Nowithstanding 11.1.1, effective tiarch 16, 1987, an employee shall receive a shift premium of fifty-five cents (55f) per hour for all hours worked between nfdnlg,ht and ?:OO a.a. !fhere more than fifty percent (SO.21 of the hours worked fall vithin this period, the fifty-five cents (55{) per hour premiun shall be paid for all hours vorked. 11.2 Notwithstanding LI.1.1 and 11.1.2, uheri:an employee’s hours of work oormslly fall within 7:00 a.m. and 5:00 p.m., the employee .shall not be entitled to receive a shift premium for hours mrked between 5:00 p.m. and 7:00 a.m. 11.3 Shift premiums shall not be considered as part of an employee’s basic hourly rate. 11.4 Shift premium shall not be paid to an l mzoyee who for mutually agreed upon reas.ans vorks a shift for which he vould otherwise be entitled to a shift premium. The Employer argues that Article 11.4 (11.3 as it was then) clearly and unambiguously indicates that such a shift premium need not be paid under the circumstances of this case. -3- The following statement of facts was agreed to by the parties at the outset of this hearing. 1. 2. 3. 4. 5. 6. 7. The grievors are employees of the Muskoka Centre, a residential facility for the developmentally handicapped in Gravenhurst; Ontario, operated by the Ministry of Community and Social Services. Both grievors were employed at the time of grievance as residential counsellors in the Residential Services Department of the Centre. Residential counsellors provide for the varied needs of the residents at Muskoka Centre and their duties include programming, life skills training and general care. Because of the unique needs of the residents at Muskoka, the Residential Services Department operates on a 24-hour basis. Each day i&divided into three shifts. Approximately 30 to 40 residential counsellors are assigned to the day shift which runs from 7:00 a.m. to 3:30 p.m. Approximately 30 to 40 residential counsellors are assigned to the afternoon shift. The night shift covers the period fr-;m 11:OO p.m. to 7~00 a.m. Approximately 14 residential counsellors work on the night shift. All but 17 of the residential counsellors rotate through the three shifts. These people who work on rotating shifts are paid a shift premium in accordance with Article 11.1 of the Collective Agreement when they are not working on the day shift. The other 17 including the grievors of these residential counsellors have individually approached management in the past and requested for various reasons that they be placed permanently on either the afternoon shift or the night shift. Management has agreed to such arrangements. Management has taken the position with all of these persons that Article 11.3 of the Collective Agreement applies, and as such no shift premium has been paid. -4- 8. 9. 10. 11. 12. 13. 14. 15. 16. Ten of these residential counsellors work permanently on the afternoon shift and seven work permanently on the night shift. If any of these persons indicate to management that they no longer wish to work a steady shift, they will be immediately placed back in the shift rotation. The grievor Fitchett was employed as a Residential Counsellor 11 at the Muskoka Centre by the Ministry of Community and Social Services. The grievor began her employment with the Ministry on February 17, 1975. She resigned June 15, 1986. In approximately March 1976, the grievor requested to be placed on a permanent afternoon shift. Management has taken the position that in accordance with Article 11.3 of the Collective Agreement, the grievor has never been paid a shift premium for work on this permanent shift. The grievor Shannon is also employed as a Residential Counsellor 11 at the Muskoka Centre by the Ministry of Community and Social Services. The grievor was hired on July 10, 1972. In February 1985, the grievor requested to be placed on a permanent night shift. Since that date the grievor has regularly worked on the night shift. Management has taken the position that in accordance with Article 11.3 of the Collective Agreement, the grievor has never been paid shift premium for this work. The housekeeping department at Mrikoka Centre employs eighteen cleaners. Fifteen of the cleaners are assigned to work steady days. while three cleaners are assigned to work steady afternoons. Unlike the Residential Services Department, the cleaners are not rotated. If one of the cleaners assigned to the afternoon shift indicates that he or she wants to work days, such an assignment is only made when there is an opening and when it deems to be an appropriate placement. All cleaners who work on the afternoon shift receive a shift premium in accordance with Article 11.1 of the Collective Agreement, as it is management's view that they are assigned permanently to the position. For this reason management has taken the position that Article 11.3 (now 11.4) does not apply. Joseph Richard is a cleaner employed by the Ministry of Community and Social Services at the Muskoka Centre. 17. 18., 19. 20. 21. 22. 23. 24. 25. - 5 - On June 13, 1985 Mr. Richard grieved "unjust denial to work the afternoon shift, on a regular basis". This grievance proceeded to stage 2 on July 25, 1985 at which point the Ministry decided that Mr. Richard would "be allowed to work the afternoon shift effective September 1, 1985 with the following provisions: (a) 'That it is understood by you and the Union that this does not alter management's present or future rights with regards to altering work assignments or schedules. (b) That you and your immediate management supervisor will discuss the expectations and performance in your present and future assignments. I That this response is acceptable to you and the Union and the grievance will be withdrawn in writing." On August 11, 1985 the grievor withdrew the grievance. Since that time Mr. Richard has',worked the afternoon shift on a regular basis. Mr. Richard, like all of the afternoon cleaners, is paid a shift premium in accordance with Article 11.1 of the Collective Agreement. Joanne Darwent is a nurse employed by the Ministry of Community and Social Services at the Muskoka Centre. In 1985 Ms. Darwent applied for her present position. The position was posted as requiring the employee to work on the night shift on a permanent basis. Ms. Darwent has been paid shift premium for all hours worked on the night shift since the commencement of her employment. Management at Muskoka Centre views Ms. Darwent's position as a permanent assignment. If Ms. Darwent wanted to work on a different shift, she would have to apply for that shift and would only be assigned if that was deemed an appropriate placement. :: - 6 - Both Ms. Fitchett and Ms. Shannon, testified at the hearing. Ms. Fitchett agreed that she had requested a permanent afternoon shift and that, at the time the request was granted, the issue of a shift premium was never discussed. She filed a grievance requesting shift premium after learning that Joe Richard, a cleaner employed in the housekeeping department at the Centre, was being paid a shift premium although he worked permanently on afternoon shifts. Ms. Shannon had also requested a permanent afternoon shift and the issue of shift premium had never been discussed. She filed a grievance after hearing of the !i Joe Richard situation from Ms. Fitchett. Both Ms. Fitchett and Ms. Shannon agreed, during cross-examination, that there were other people in housekeeping who were on permanent shifts (i.e. non-rotating) and were n,t being paid shift premiums. Mr. S. Potter, the human resource administrator at the Centre, testified that the Centre preferred to have residential services personnel rotate on shifts so that they could gather additional experience and improve their abilities. However, at the request of employees, the management of the Centre acquiesces to individual requests to work permanent shifts. Furthermore, it was the long standing practice not to pay shift premiums in such cases i : - 7- and there had not been a grievance on this matter, as far as he was aware, since at least 1975. However, Mr. Potter testified that shift premiums were paid to three employees in the housekeeping department, including Mr. Richard, because these people were placed on those shifts, at management-s request, for operating efficiency. The grievance filed by Mr. Richard dealt with the denial of the placement to him on grounds of seniority and qualifications. Once the job was awarded to him, the payment of shift premium was automatic and was not the subject of the grievance referred to in the statement of facts. Similarly, Ms. Darwent was hi'red to work a specific shift determined by management. Mr. Potter also testified that a=y permanently placed employee in the residential counselling department who wanted to work rotating shifts had only to request this and he or she would be accommodated immediately. The permanently placed people in housekeeping, who were placed on shifts for operational reasons, could only be rotated back at considerable inconvenience to the employer. The Union argued that Article 11 requires the payment of a shift premium to the grievors and, furthermore, that such premiums should be paid retroactively to the date of their commencement of work on the afternoon shift. The I -8- Union argued specifically that the words "a shift" in Article 11.4 should be construed as meaning any specific 7-l/2 hour time period such as "the 11-7 shift on Monday, July 21, 1985." This would then restrict the non-payment of shift premium to those cases where an employee had requested an unusual shift change, for a specific day, rather than to any permanent shift placement. In support of its argument that "a shift" means a specific 7-l/2 hour duty period, the Union cites other parts of the Collective Agreement where the words clearly have this meaning. Article 9.1, for exampie, refers to "A shift Tj which does not commence and end on the same day . ..II and Article 10.2 states that "Every reasonable effort shall be made to avoid scheduling the commencement of a shift . ..@'. The Union also refers to a previous GF3 award (Barter, 106/79) in which the term "a shift" in the context of Article 10.1 was stated by the Employer to mean work on a given day rather than a shift schedule or a shift slot. In Barter, the Board agreed with the Employer's definition of "a shift" as work on a given day. The Union also suggested that the payment of shift premium to Joe Richard, who wanted the shift placement that management also wanted someone to work permanently on, indicated a past practice of paying shift premiums to people who work permanent non-rotating shifts by mutual consent. t - 9 - Furthermore, the Union argued that the non-payment of shift premiums to the residential counsellors who request permanent shift placement is tantamount to establishing individual contracts of employment within the collective agreement. The Employer argued that "a shift" in Article 11.4 should refer to any one of the (three) specified shifts and should not be restricted to a specific 7-l/2 hour period on a specific date. Furthermore, because management required a cleaner to work a permanent shift, rather than acquiescing to an employee demand, it was obliged to pay !f a shift premium because the placement was not for "mutually agreed upon reasons" as specified in Article 11.4. The words'"a shift" are ambiguouti and must, therefore, be interpreted in context. They might, under different circumstances, mean: a period of time on a given day or any one of several different "shifts" which could be worked such as 'afternoon', 'night', 'day', or 'swing'. Given this ambiguity, we must look at both the context and the past practice to interpret the intent of the provision. In the context of Article 11 - which deals with shift premiums rather than shift schedules - we believe that the words "a shift" clearly refer to one of the various shifts (such as 'afternoon', 'night', 'midnight to 7.00 a.m.* etc.) - 10 - . that an employee might be working .rather than the extremely narrow interpretation of a period of time on a given day that the Union urges this Board to adopt. The whole thrust of this article is to deal with compensation for working particular shift schedules and 11.4 must, in our view, be interpreted in that context. In Barter, the Board cites Charlebois. 168/77 in which the Board wrote: "The purpose of a clause like Article 10.1 is to strike a reasonable balance between the interests of the employer and those of theiemployees. Here the employer's interest is protectedtby an unlimited right to schedule and alter shifts. The employees' interests are protected by a requirement for advance scheduling and provision for notice of alteration of shifts once scheduled, with a penalty in premium pay exacted when the notice is not timely." ij We consider that this statement is applicable in the instant case. The payment of shift premiums is designed to balance interests of employers and employees. It is designed to offer compensation (shift premiums) to employees who are required to do something the employer demands (and has a right to demand). Sometimes individuals would rather noJ do this (such as those who would rather not work rotating or the night shift) and sometimes individuals & to do it (such as an individual who prefers working nights). In order to avoid totally individually-oriented payment i. : . - 11 - schedules, some rules have to be followed. In this case the rule which has been consistently followed by the employer, is that: When the employer requires a certain shift or shift schedule to be worked, it pays a premium whether or not the individual prefers that particular shift or shift schedule. When the individual requires a certain shift or shift schedule, and the employer acquiesces in that desire, the shift premium is not paid. It is the latter case which falls within the meaning of Article 11.4-s terminology "mutually agreed upon reasons". Common sense dictates this interpretation. If the employer were to be forced to pay shift premiums to individuals it accommodated on their preferred shifts, some individuals would then be receiving higher overall regular pay than others. In effect, individuals could "elect" a higher paying job. Under such circumstances equity could only be restored by the employer refusing such requests for permanent assignment to shifts. This would surely be to the disadvantage of those employees who 1 for a variety of personal reasons - do not wish to be on rotating shifts. The employer would also be disadvantaged through poorer relationships with such employees whose wishes could not be accommodated. Provided that the employer follows some consistent rule, this practice does not constitute individual contracts of employment as the Union suggests. _ . - 12 - In summary, to adopt the Union's position in this case, would be to impose an economic cost on the Employer for accommodating employees' preferences for more personally suitable working hours. That does not seem reasonable and is not required by the language of this collective agreement. Accordinqly. the grievance is denied. Dated at London, Ontario, this 2nd day of July,.l987. J F. Taylor, Member c