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HomeMy WebLinkAbout1986-0070.Bain et al.87-12-23mm, GRIEVANCE SETTLEMENT BOARD Between: CpSEU (Bain et al) Before: 70186, 550186, 554186, 557186 565186 i IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the Employer: and The Crown in Right of Ontario (Ministry of Correctional Services) E. K. Slone Vice Chairman J. McManus Member L. Turtle Member I. Roland Counsel Gowling and Henderson Barristers and Solicitors E. J. Anthony Regional Personnel, Administrator Central Region Ministry of Correctional Services Grievor Employer Hearing: October 23. 1987 * ' i DECISION This grievance raises a novel question of some significance to shift workers. The Grievors in this case are Corrections Officers at the Maplehurst Correctional Centre. Such institutions require staffing around the clock. It is also necessary for there to be a short .overlap between the ending of one shift and the beginning of the next. This ensures continuity of control. Thus is the baton passed. Shift schedules in Maplehurst operateon a 15 week cycle. Throughout that cycle there is a fairly even -distribution of morning shifts (06:45 hours to 15:15 hours), afternoon shifts (15:00 to 23:30 hours), and night shifts ' (23:00 hours to 0:700 hours). Under Article 8 of the Collective Agreement, absent an agreement to the contrary employees are entitled to two consecutive days off. This is subject to the provisions of Article 9, which provides: "9.1 A shift which does not commence and end on the same calendar day shall be considered as falling wholly within the calendar day ori which the shift commences." Thus, a shift beginning at 23:00 hours on a given day is deemed by Article 9 to have occurred entirely within that calendar day, notwithstanding the employee must work until - 2 - 7:00 o'clock the next morning. For a period of some eight months, a shift schedule was in effect at Maplehurst that contained an anomaly. During weeks 5, 7 and 11, the two consecutive days off in that week began after the completion of a night shift, and ended with the commencement of a morning shift. Thus, for example, the employees were required to work until 7:00 a.m. on a Saturday morning, and yet were obliged to report back to work at 6:45 a.m. on the following Monday morning. While the apparent effect of Article 9 is to deem Saturday not to have been a work day at all, it remains that the employees received less than 48 hours off. In fact, they received precisely 47-314 hours off. Counsel for the Grievor6 urges us to hold that Article 8 requires the employer to give the employees at least 48 hours off. While Article 9 permits the employer to count Saturday as a day off, it is argued that it does not permit the employer to give less than 48 hours. The issue therefore is: what is a "day" within the meaning of Article 8? Does it mean only a calendar.day, or does it also mean 24 hours? This issue is important because shift-workers are - 3 - placed under extreme pressures by virtue of the hours they work. Those pressures are magnified when they are required to make drastic adjustments in a short period of time from one shift to another. In the instant case it is not really the 15 minutes that creates a hardship for these Grievors; it is the fact that they are obliged in a short space of time to change over from night shifts to early nrorning shifts. They are literally asked to turn night into day within 48 hours. However, if the employer were to schedule afternoon shifts on the first day back after the two consecutive days, then the actual time off would exceed 48 hours, and the employees would have a smaller adjustment to make. Indeed, as.we can see from the shift schedule that replaced the offending schedule, the employer has done just that; it has scheduled an afternoon shift on every occasion when the employees are returning from a short weekend after working night shifts. It would be tempting to say that the employer should at .a11 times be guided by good sense and that it should schedule shifts in such a manner as to make the transitions as gradual and painless as possible. It is self-evident that the employer would get better productivity out of its employees. But, tempting as it may be to leave it at that, we must interpret the Collective,Agreement. Unfortunately, we must do so without the benefit of any precedent. ,- , I - 4 - It is our view that Article 8 of the Collective Agreement does require the employer to give at least 48 clear hours off. The ordinary meaning of a "day" is two-fold: it can mean either a calendar day, or a period of 24 hours spanning two~calendar days. In any~given context one or the other interpretation might be appropriate. We note that the parties have chosen to refer to "calendar days" in Article 9. There is a compelling inference consistent with elementary canons of construction that the use only of the word "day" in Article 8 was deliberate and was not intended to mean calendar day. It therefore must mean 24 hours. This interpretation does not render Article 9 meaningless, as Mr. Anthony suggests. Absent Article 9 the employees could argue that they are entitled to much more thank 48 clear hours. It could be argued that having.worked on part of Saturday they are entitled to all of Sunday and Monday off. But more importantly, Article 9 has other functions to perform. There are many reasons why it is convenient to deem a shift to have occurred during only one calendar day. That shift might otherwise straddle two pay periods, or even two calendar years. The employer would be forced to dissect the shift, into smaller elements, at some inconvenience and to no useful end. Article 9 is there for - 5 - administrative convenience. Article 8 on the other hand is there to ensure a decent rest period for employees, who are entitled to real days of 24 hours and not simply "deemed" days of something less. Thus, in drafting a shift schedule the employer must respect the right of the employees to 48 clear hours. As far as owe can ascertain, there was no great difficulty in rearranging the Maplehuist shift schedule to accomplish this goal. However, since it is possible that there may be situations where the Bcheduling of 48 clear hours is simply impossible, or at least impossible to accomplish without- offending some other part of the Collective Agreement, we add the proviso that the scheduling of 48 clear hours must be feasible. We can imagine very few instances when it would not be feasible, but the breadth of our imagination may be limited. Of course, we do not wish to interfere with any consensual arrangements that may be made between empioyees and the employer, which are expressly sanctioned by Article 8. Since every short period of time off in one part of the schedule,.is offset by a longer period of time off somewhere else in.the schedule, it is probable that some employees are willing to accept less than 48 hours on occasion. This is clearly something that can be mutually agreed to without violating the Collective Agreement. The relief requested by the Grievor6 is both declaratory and monetary. They ask for a declaration that : the offending shift schedule violated the Collective Agreement, and we have so declared. They also ask for compensation by way of overtime for having been called back on the occasions in question 15 minutes earlier than the otherwise 48 hours minimum. In our vieti, it is appropriate to treat these 15 minutes as overtime. Under Article 13.2 of the Collective Agreement, "overtime" is defined to mean "an authorized period of work calculated to the nearest half hour and performed on a scheduled working day in addition to the regular working periods...". There was some argument as to whether or not 15 minutes to the nearest half hour equalled zero or 30 minutes. Clearly under these circumstances 15 minutes of overtime to the nearest half hour is 30 minutes. Otherwise, as Mr. Roland pointed out, the employer would have a licence to call in the employees for up to 15 minutes of free overtime every day. Accordingly, the Grievors are entitled to time and a half for 30 minutes for each of the times that they were forced to work on less than 48 hours rest. Since overtime - 7 - for one half an hour would be regular pay for 45 minutes, and since the employees have already received regular pay for 15 minutes, then the amount of pay to which they are entitled is in each case 30 minutes of regular pay. We are confident that the parties can work out the exact dollar amounts applicable to each Grievor. However, we will 'remain seized of the matter in the event'our assistance is required in implementing this award, DATED at Toronto, Ontario, this 23rd day of December, 1987.* LFL E.K. SLONE - VICE-CHAIRMAN J . . MANUS - UNION MEMBER f-_;? 3,, * 1 L. TURTLE - EMPLOYER MEMBER