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HomeMy WebLinkAbout1987-2185.Seguin.81-01-09SETTLEMENT EMPLOYtS DELA COURONh’E DE L’ONTARIO COMM,SS,ON DE RiiGLEMENT DES GRIEFS Between: Before: ,For,the Grievor: For the Employer: Hearing: April 18, 198% 2185187 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD OPSEU (R. Seguin) Grievor and The Crown in Right of Ontario (Ministry of Natural Resources) Employer T.H. Wilson I. Freedman G. Milley Vice-Chairperson Member Member A. Ryder Counsel Gowling & Henderson Barristers and Solicitors T. Sargeant Counsel Central Ontario Industrial Relations Institute' DECISION The grievor is a rotary wing (helicopter) pilot in Timmins with the Ministry of Natural Resources. As such he is a Schedule 6 employee under the regulation (R. R. O., Regulation 88 hours. He flies for all sorts Public Service Act 1). His work week is 365, of reasons. In the summertime he does a great deal of flying because of wild fires and planned forest burns. He also flies for other offices in the Ministry which arrange for his services through a dispatcher. The grievance claims that he has not been paid daily overtime for fire fighting under clause 13.72 of ,the Collective Agreement. The Ministry states that he is not covered by that provision but by the' Float Agreement between then Ministry and the Union. The Float Agreement is dated 1% June, 1981 and covers all Pilots (lFR,VFR) and Regional Air Engineers at Operating Bases in the Ministry of Natural Resources. It states in the Preamble: In recognition of the fact that. Pilots and Regional-Air Engineers assigned to ,operating bases may operate under irregular hours of work necessitated by the Ministry's role in air transport, the following conditions will apply r~- I I -2- ARTICLE 2 Work Schedule - Float Operating Season 2.1 Pilots and Regional Air Engineers will have a pre-scheduled 5 day work week during the float operating season. The hours in a day could be more or less than 8 hours.If it is necesary that Pilots or Regional Air Engineers work on the sixth or seventh day, or statutory holiday, they will receive time off at one and one-half times the number of hours worked with a minimum credit of 8 hours. If time off is not granted by the end of the float season, they will be paid one and one-half times their basic hourly rat~e for all accrued hours. The payroll for this time is to be submitted within one month after the end of the float operating season. If however, they prefer time off and it can be granted before March 31st of the following calendar year, then time off may be granted. 2.2.1 At the beginning of the fiscal year, Pilots and Regional Air Engineers will be credited with five (5) days leave. This time off to be taken with the permission of their Supervisor. The extra days are being granted to compensate for the flexibility of the work period and must be used by March 31. Days not used by March 31 will be paid on a day-for-day basis. Article 4 Term 4.0 The effective date of the Agreement is April 1, 1981 to March 31, 1982. It shall be renewed automatically for annual periods unless either party notifies .the other in writing prior to January 1 of their desire to alter or amend the Agreement for the following year, The relevant provisions of Article 13 of the collective agreement are: 13.7.1 13.7.2 Employees who are in classifications assigned to Schedule 6 and who are required to work on a day off, shall receive equivalent time off. Notwithstanding 13.7.1 and Article 19.6 (Holiday Payment1 employees who are in classifications assigned to forest fire fighting or related duties, shall be paid one and one-half (1%) times the -3- employee's basic hourly rate, to be calculated on the basis of thirty-six and one-quarter (36%) hours per week, for all such work after eight (8) hours in a 24-hour period Article 13.7.2 resulted from an Interest Arbitration Award delivered the 28th day of July, 1982 in which the Chairman was Howard D. Brown. The Union had proposed two overtime provisions for Schedule 6 employees: a) Any Schedule 6 employes assigned to forest fire fighting or related duties shall be entitled to the provisions of Article 13, for all hours so worked. b) In lieu of daily overtime compensation Schedule 6 employees are to be entitled to claim 5 days off with pay per year. Arbitrator Brown noted that Schedule 6 employees who under Article 7.3 have a 364 hour work week were not paid for daily overtime hours, but get compensation for work on days off or statutory holidays. That compensation was set out before that Arbitration Board in Schedule H of the Employer's brief. 1. 2. 3. A credit of $ of the daily equivalent of the employee's existing salary or the equivalent in compensating leave for each. four-hour segment of time worked in excess of 88 hours in each two-week period. Application to employees assigned to Schedule 6, except for pilots and air engineers whose hours of work arrangement are subject to a memorandum of understanding between the Ministry of Natural Resources and the union. No application to hours'for which compensation is provided under Article 19.6. -4- After referring to paragraph 2, Arbitrator Brown concluded at pages 16-7 of his Award: "We are persuaded,by the Union's Submission that Schedule 6 employees assigned to firefighting duties, should be compensated for such work, in like manner, to other employees involved in the same activity. "The Board therefore awards the following: "Any Schedule 6 employee assigned to forest firefighting or related duties, shall be paid 1% times the employee's hourly rate, calculated on the basis of 36% hours per week, for all such work after 8 hours, in a 24 hour period". [Article 13-7.2 "Schedule 6 employees'include such classifications as Biologists, Foresters, Educational Officers, Psychologists, and Industrial Development Officers, who work in circumstances without supervision, or control of the hours worked and thus have been described in the Schedule with a minimum and not a maximum schedule of hours of work. The overtime provisions of Article 13, do not apply to these employees, but in -5- Arb trator Brown then went on to reject the Union's 5 day off with pay proposal. Consequently, Article there is a provision for Article 19.6 equivalent t are required ime off, where such employees to work on a normal day off or on a holiday . . . ..'I 13.7.2 appeared in the new Collective Agreement in 1982. The grievor was hired in 1981. He had always put in for an eight (8) hour day prior to 1987, but at that time he became aware of.Clause 13.7.2. At the beginning of the forest fire season in 1987, he began to put in for overtime on the forest fire fighting on week days. In September, 1987, he checked with the payroll clerk's office in Timmins to see how much time he had accumulated and discovered that the payroll clerk had been striking out the daily overtime. He kept his own records and claims 266 hours at 1% times for fire fighting, excluding planned burns. Roger Gordon is the acting Personnel Director for the Ministry of Natural Resources. His regular position is Manager of Personnel Policy and Staff Relations. He testified that the 1988 negotiations for the Pilot's Float Agreement are still in course. He explained that the float season (firefighting season) generally extends from April 1 to October 1. It varies with the ice conditions in the -6- lakes. He testified that the pilots have always been compensated under the Float Agreement and not clause 13.7.2. The union employee relations committee raised the issue in October, 1987 that the float agreement did not provide sufficient compensation. He testified that the commitee was aware of the Ministry's interpretation and policy. The parties agreed for purposes of negotiation to extend the agreement to May 1 from January 1. If the union had raised the issue before January 1, 1987, he would have raised it with senior management with a view to giving notice under' the Float Agreement. The air service source is in competition with the private sector since people in other offices such a,s biologists do have the option of hiring private pilots. At the same time, the other pilots not on firefighting duty would not receive any benefit. In cross-examination, Gordon agreed that the whole float agreement was up for negotiation and the union was seeking compensation for non-firefighting overtime which was increasing because wheeled planes were replacing the float planes. The union argues that Article 13.7.2 applies unless superceded by the Float Agreement. The float agreement does not apply to overtime on regularly scheduled days. The Float Agreement as shown by its preamble was intended to deal with the fact that the pilots work irregular hours. This is shown by the union's situation. -7- Usually he begins before 8 a.m.. Article 2.1 of the Float Agreement deals with a particular type of overtime namely the sixth and seventh days of the week and statutory holidays. The union's position is that by addressing that particular type of overtime, the Float Agreement implicitly indicates that it is not addressing other overtime. Indeed in 1981, when that language was drafted in fact there was no other kind of overtime. The other kind of overtime came into existence when 13.7.2 was added to the Collective agreement. Article 2.1 of the Float Agreement is addressing irregularity of hours, not overtime. In support of that approach, the union argues that the material before Arbitrator Brown supports their interpretation of his award. Brown saw it as unfair that Schedule 6 employees worked under different deals from other employees. It was not Brown's intention to exclude the supplementary agreements but to superadd Article 13.7.2 and where that Article covers the same benefits as the supplementary deals, Article 13.7.2 prevails. The Ministry argues that the fact that only the grievorasserts this claim and the agreement has always been administered in this matter, indicates that the Float Agreement does supercede Article 13.7.2. Counsel points out that Arbitrator Brown's Award makes no mention-of the pilots though he speaks of the biologists and psychiatrists within Schedule 6. At the same time the information on the pilots was before him. This, Counsel contended, is compounded by - the fact that the Float Agreement gives the pilots more than Article 13.7.1 gave to Schedule 6 employees. In his .submission, 2.2.1 of the Float~Agreement is the counterpart of Article 13.7.2 of the Collective Agreement and 2.1 of the Float Agreement is the counterpart of Article 13.7.1 of the Collective Agreement. In his view 2.1 speaks both to week-end, overtime and the flexibility of hours, and 2.2.1 gives five days for flexibility and overtime. It is a total package. A close reading of the Float Agreement leads me to the conclusion that it deals with all the possibilities: flexible hours, week-end and statutory holiday work - and - week-day overtime. It specifically alludes to all three. With regard to week-day overtime, I note that Article 2.1 specifically says, "The hours in a day could be more or less -- than 8 hours." (emphasis mine). Then in Article 2.2.1, it provides for five days leave, "to compensate for the flexibility of the work period...". But the flexibility includes that an employee's work day may be more than eight hours. It is not just compensation for having to report for work at odd-ball hours. It is a compensation both for that and possibly longer working days. The week-ends and statutory holidays are compensated under 2.1. Turning next to Arbitrator Brown's Award. The language set out above in his Award was directed at those Schedule 6 employees who got nothing for week-day overtime. Indeed he ~rejected for them the Union proposal for a five day off for that overtime. He -9- clearly was not speaking of the pilots who, he knew, had the Float Agreement which already gave them the five days. I am satisfied that he did not intend the addition of what is now Article 13.7.2 to oust the pilot’s agreement nor to supplement it. That being so the grievance has no merit. The grievor was correctly compensated under the Float Agreement and is not covered by Article 13.7.2. The Ministry also claimed there was an estoppel against the Union and the grievor. However, since I am satisfied that the Ministry's interpretation of the Float Agreement and Article 13.7.2 of the Collective Agreement is correct. I need not decide the estoppel question which the union forcefully opposed as unproven. Accordlingly, the grievance is dismissed. DATED at TORONTO this 9th day of Janus 1989. 3&~,, ;dg 'momas H. Wilson Vice-Chairperson I. fJ!;_ ~ .:I, G. Milley, Metier