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Home My WebLink About1987-1065.Jenkins et al.89-06-08NTARIO EMPLOY~SOEU CO”RONNE I CROWNEMPLOYEES DEL’ONTARIO I GRIEVANCE CQMMISSION DE !Xl&MENT REGLEMENT DES GRIEFS IN TEE HATTER OF AN ARBITRATION Under TRE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Between: Before: APPEARING FOR TEE GRIEVOR: APPEARING FOR TBE EUPLOYER: HEARING: Before THE GRIEVANCE SETTLENENT BOARD OPSEU (Jenkins/Randall/Rombough) - and - The Crown in Right of Ontario (Ministry of Transportation) Grievor Employer J. Forbes-Roberts - G. Nabi Vice-Chairperson - Member G. Milley - Member A. Ryder Counsel Gowling a Henderson Barristers a Solicitors K.E. Cribbie Staff Relations Advisor HUman Resources Branch Ministry of Transportation June 13, 1988 DECISION - 2 - These three (3) identical grievances involve an alleged failure to pay premium pay for overtime work as per the terms of the collective agreement. Messrs. Randall, Rombough and Jenkins are Highway Traffic Enforcement Officers vlth the Ministry of Transportation and Communications (“M-T.C-“)* Prior to January 1987 their regular shifts vere Monday to Friday vith occassional Saturday vork, the latter of vhlch was paid at overtime rates. In January of 1987 the Lord’s Day Act was declared unconstitutional. Highway traffic carriers began operating on Sundays and thus the Inspec- tion and veigh stations also had to be manned on that day. In order to .acoommodate: the need for seven (7) day coverage the grlevors’ schedules vere staggered so that Saturday and Sunday vere no longer regularly scheduled days off. An indlvi- dual grievor’s “veekend” could occur anyvhere during a seven (7) day period; The relevant portions of the collective agreement are as follovs : 7.3 SCHEDULE 6 ,le The normal hours of work for employees on this schedu shall be a minimum of thirty-six and one-quarter (36 l/4) hours per week. 8.1 There shall be two (2) consecutive days off vhich shall be referred to as scheduled days off, except that days off may be non-consecutive if agreed upon betveen the employee and the .mitiistry.. 13.1 The overtime rate for the purposes of this Agreemnt shall be one and one-half (1 l/21 times the employee’s basic hourly rate. It vas the Union’s contention that as used in article 7.3 “week” is synonomous vlth calendar week. Further, the calendar veek is from Saturday to Friday. By virtue of article 8.1 an employee cannot be required to work the period Saturday to Monday without tvo (2) consecutive days off . The net result of this argument is that after five consecutive shifts the grlevors must either be given tvo (2) consecutive days off, or be paid at the overtime rate in accordance vith article 13.1. The Employer contends that barring a specific modifier Week” means a seven (7) day period. The number of consecutive days vorked is irrelevant as long as the completion of a seven (7) day schedule an employee has had two ( 2 1 consecutive days off. Further the Employer is free to set any day as the first of the seven day cycle. This issue has been thoroughly canvassed by the Grievance Settlement Board ("G.S.E.). Indeed the betveen these same leading authorities are parties. The requirements articles 7.3 and 8~1 are nicely mandated by summarlzed in (G.S.B. 1064/85 et al): re:Fabian et al, As we read articles 7.2 and 8.1, there are three specific requirements set out, beyond vhich management initiative to schedule work is .ustranrmeIladr (1) There must be no more than forty * hours scheduled per week. ( * substitute thirty six and one- quarter) (2) There must be no more than eight hours scheduled per day. (3) There must be two consecutive days off (per week, if ve adopt the union's argument for the sake of this analysis). Assuming no consideration is given to the employer's argument of "abnormality" of the requirements of this job, are all of these considerations met? Clearly no more than eight hours has been scheduled in one day, and the forty hour week and two consecutive days off requirements are mutually dependent once the eight hour day requirement is met. Much of this issue will therefore turn on the meaning of "week". It is interesting that the Concise'Oxford Dictionary, 6th Edition gives as its first two definitions of "week" the following: week n. 1. Period of seven days reckoned usu. from and to midnight on Saturday - Sunday....; 2. Period of seven successive days reckoned from any point. * l l -4- For this particular employee's schedule, therefore, all of the conditions are met: in each calendar week there are no more than forty hours and there are two consecutive days off. Of course, if we were to insist on applying the calendar week requirement, other employees working on interlocking schedules could not meet all of these con- ditions since the distribution of days off would be different. The parties, however, have not specified "calendar weeks", but merely "weeks", and there appears to be no reason to prefer one of the definitions above to the other. Therefore, by merely designat- ing a different day of the week as the start- ing day for each of the four employees (or groups of employees) required to staff this rotating schedule, the employer will be Seen to have met, in respect of each employee or group, the requirements of the collective agreement. We note that the collective agreement does not specify the days of the week on which work is to be performed, does not specify that there must be five consecutive working days (but only that days off be consecutive) and does not prohibit the days off in one week from being contiguous with those in the next. Given the absence of such limitations we must --.... ~..~~ take the intention of the parties SS Set Out in the collective agreement. AS a consequence, we find that the shift schedule on which the grievor has been working since October 13, 1976 is not in breach of the collective agreement. We are Supported in this conclusion bY the decision of the board of arbitration in E united Automobile Workers, Local 984, and Canadian Acme Screw d Gear Ltd. (1963)) 14 L.A.c. 84 (Bennett) which, on materially identical contractual language but on slightly different reasoning, reached the same result. , I : - 5- We are in agreement vith the reasoning in all the above cited avards. Indeed we find this case to be on all fours vith Fabian ( supra). There vould appear to be no novel points of fact or law vhich would constitute the "... exceptional circum- stances..." ) contemplated by se:-, G.S.B. 1276/87 et al). The grievances are hereby dismissed. Dated at Toronto this 8th day of June, in the year 1989. -- -1 . Forbes-Roberts, Vice-Chairperson - G. Nabi, Member - G. Milley, Member