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HomeMy WebLinkAbout1987-2338.Candler et al.88-06-30EMPLOY& DE LA CO”RONNE DEL’ONTARIO CQMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS Between: Before: For the Grievers: For the Employer: Hearing Date: IN THl~MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Candler et al) and The Crown in Right of Ontario (Ministry of Education) R.J. Roberts Vice-Chairman I. Freedman Member G. Milky Member R. Wells Counsel Gowling & Henderson A.R. Rae Senior Staff Relations Officer Management Board of Cabinet May 10, 1988 2338187, 230-l/87 2354187, 2361/87 Grievers Employer ~~, DECISION This arbitration involves two sets of grievances. The first set, comprising three grievances, raises the question whether Residential Counsellors who are covered by a specific Addendum to the Collective Agreement are entitled to receive the minimum credit for work on a holiday specified in Article 19.1 of the Collective Agreement. A second set, comprising only one grievance, raises the question whether a Residential Counsellor covered by this Addendum is entitled to receive a day off under Article 19.3 of the Collective Agreement when a holiday coincides with his scheduled day off and he does not work on that day. For reasons which follow, the first set of grievances is denied: the second is allowed. By agreement, the parties did not call any evidence in this case. It was stipulated that the grievors are all Residential Counsellors with the Ministry of Education. Three of them work at the Sir James Whitby School in Belleville. The fourth, Mr. Jack Parks, works for Sagonaska School, which is devoted to language learning disabled children. The two schools are located on the same property in Belleville. All of the claims involved in the two sets of grievances relate to Monday, October 12. 1987, which was Thanksgiving Day. Three of the grievors, Mr. Ruscoe, Ms. Rowe11 and Mr. Parks, were required to work on this day. Mr. Ruscoe and Ms. Rowe11 worked 2 seven hours. Mr. Park worked six hours. They were paid double time for all hours worked. In their grievances, these grievors claimed that they should have been paid more. They claimed double time for the minimum credit of eight hours specified in Article 19.1 of the Collective Agreement. The remaining grievor, Mr. Candler, did not work on the Thanksgiving Holiday. This holiday coincided with his regular day off. He grieved that as a result, he was entitled to another day off under the provisions of Article 19.3 of the Collective Agreement. It was agreed between the pa,rties that all of the grievors were covered by the following Addendum to the Collective Agreement. ADDENDUM TO THE WORKING CONDITIONS AND EMPLOYEE BENEFITS COLLECTIVE AGREEMENT The parties hereto have agreed to the terms of this Addendum covering employees in classifications of Residence Counsellor 1, 2 and 3 in the Institutional Care Category and Nurses Special Schools in the Scientific and Professional Services Category. This Addendum shall be attached to and form part of the Working Conditions and Employee Benefits Agreement. The terms of the settlement are as follows: (a) The hours of work shall be established by the Ontario Schools for the Deaf and the Blind, and they may vary depending on the situations which : (b) (c) It also 3 exist at the different schools. The normal hours of work per week shall be forty (40) hours plus an additional number of hours of work for the purpose of coverage requirement without penalty, recognizing that twelve (12) hours between shifts and two (2) consecutive days off may not be possible to schedule. Normal scheduling of hours shall be September 1 to June 30. Sleep-in is not work and shall only be compensated as specified herein. Scheduled sleep-in hours shall be credited at the rate of fifty percent (50%) to a maximum of four (4) hours credit for those hours on sleep-in duty per night toward the required annual accumulation. Sleep-in hours prior to or following a period of work shall not form a part of the work shift for any purpose under this Agreement. Authorized overtime. work which is required as a result of an emergency situation shall be immediately submitted for payment at 'time and one- half (1 l/2) the regular hourly rates. This emergency non-scheduled overtime work shall not be included when totalling the number of credit hours required for the year as ~per Schedule A. Payment will normally be expected within thirty (30) days of submission. was agreed that the grievors were covered by Appendix 3 of the Collective Agreement, which reads as follows: SCHEDULE A AVERAGING OF HOURS OF WORK The number of hours of work per week prescribed shall be computed as a weekly average over one (1) year, where the duties of a civil servant require: that he work more than the number of hours per week prescribed at regularly recurring times of the year, or that the number of hours per week be normally irregular. Averaging Period: 4 The averaging period for each class and/or position: will conform to the twelve (12) month ca which reflects the work cycle of that position, and lendar period class and/or will be reported to the bargaining agent. Prorating: Periods of employment of less than twelve (12) months in an averaging period (e.g., due to appointment, transfer, separation, etc.) will be prorated. Hours Per Averaging Period: The hours of work required shall correspond to a thirty-six and one-quarter (36 l/4) hour week or a forty (40) hour week averaged over the twelve (12) month calendar period. Changes to Hours Per Averaging Period: If at any time, a ministry requires a different hours base for a class or for a position within a class (e.g., equivalent of forty (40) hours per week instead of thirty- six and one-quarter (36 l/4) hours per week), the ministry must; alter the affected employees' salaries proportionately, and notify the Staff Relations Branch, Human Resources Secretariat, and the Union of any such changes. Record of Hours Worked: A record will be maintained for each employee affected showing a running total of hours worked: on his regular working days, and during the averaging period. Excessive Buildup of Hours Worked: When an employee's buildup of hours worked is becoming excessive, he: may be required to take time off on an hour-for-hour basis, in order to bring his hours accumulation into line with the hours requirement for the averaging period, and 5 will be given reasonable notice, where circumstances permit, of any such time off. Calculation of Hourly Rate: In all cases, the basic hourly rate of pay for employees on averaging is to be determined by dividing the weekly rate of the class by thirty-six and one-quarter (36 l/4) or forty (40) as applicable, unless the basic hourly rate of pay already exists. Hours Worked Over Annual Requirement: At the end of the averaging period, any excess hours standing to the employee's credit over and above the annual hours requirement will be considered as overtime. Normally, the employee shall be paid for his overtime credits. Such payment shall be based on the basic hourly rate he was receiving on the last day of the averaging period. Compensating time off may be substituted for payment of overtime credits as follows: (a) Where there is insufficient work for an employee to the extent that his presence is not required for a period of time, in which case: a ministry has the authority to direct thatthe employee take time off rather than receive pay for the overtime credits, and such time off must be taken commencing during the first month of the next averaging period. OR (b) In circumstances other than the above and where the employee an his supervisor mutually agree to compensating leave, in which case the time off will commence: within the first month of the next averaging period, or at an otherwise mutually satisfactory time. Hours Worked on Holidays or Other Than Regular Workdays: 6 (a) All hours (Holidays worked on a holiday included under Article 48 ) shall be paid at the rate of two (2) times the basic hourly rate that the employee was receiving when the holiday was worked. (b) All hours worked on a day that is not a regular working day for the employee will be treated as overtime and based on the rate he was receiving when the overtime was worked. The grievors fell under the averaging provisions of Schedule A, above, because they worked at schools which only operated for ten months out of the twelve-month calendar years. Because of this, it was calculated that they had to work 1,840 hours in this ten-month period to qualify to receive their regular salary for the entire year. ,The mechanics of this were worked out as follows: it was calculated that the.total number of working days for a twelve-month year would be 261 days. At eight hours per day, this resulted in a total of 2,088 hours. It was then necessary to deduct from the latter figure the eleven statutory holidays to which the grievors were entitled, i.e., 88 hours, and their vacation credits of twenty days per year, i.e. 160 hours. When these two figures were deducted from 2,088 hours, the total basic hours required of the grievors became 1,840 hours. Their schedules then were established to ensure that in the ten-month period, they would work this basic number of hours. Turning to the first set of grievances, i.e., those claiming the minimum credit of eight hours for work on holidays specified by Article 19.1 of the Collective Agreement, it was the position of the Ministry that in light of the specific provision of . . 7 Schedule A dealing with work on holidays, paragraph (a), above, there was no room for application of Article 19.1 and, accordingly, the grievors could not succeed. Article 19.1 of the Collective Agreement reads as follows: ARTICLE 19 - HOLIDAY PAYMENT 19.1 Where an employee works on a holiday included under Article 48 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7 l/4), eight (8), or the number of regularly scheduled hours, as applicable. . . . . . Paragraph (a) of Schedule A reads: Hours Worked on Holidays or Other Than Regular Workdays: (a) All hours worked on a holiday included under Article 48 (Holidays) shall be paid at the rate of two (21 times the basic hourly rate that the employee was receiving when the holiday was worked. It is to be noted that unlike Article 19.1 this provision omits mention of a minimum credit for work on a holiday. In other respects, its wording mimics the essential language of Article 19.1. What is to be taken from this? Counsel for the Union submitted that the two provisions should be read together and that if the Board did so, it would not necessarily create a conflict between them to conclude that the grievors were still entitled to the minimum credit provided under Article 19.1. . . . I : 8 We disagree. Reading the two provisions together, it seems to us that the most likely conclusion is that when they drafted paragraph (a) of Schedule A, the parties must have intended those employees covered by Schedule A not to have the benefit of the minimum credits set forth in Article 19.1. Otherwise, it would have been mentioned. Instead, it is conspicuous by its absence. And there was no evidence at all that this omission was due to' clerical error. As such, this paragraph simply leaves no room for application of Article 19.1. For employees covered by Schedule A, this paragraph supercedes Article 19.1 of the Collective Agreement. Accordingly, the grievances of Mr. Ruscoe, Ms. Rowe11 and Mr. Parks are dismissed. Turning to the grievance of Mr. Candler, however, the Board reaches a different conclusion. It was .acknowledged by the parties that no specific provision in either the Addendum or Schedule A of the Collective Agreement precluded recourse by Mr. Candler to the provisions of Article 19.3 of the Collective Agreement. Article 19.3 reads as follows: When a holiday included under Article 48 (Holidays) coincides with an employee's scheduled day off and he does not work on that day, the employee shall be entitled to receive another day off. It also was acknowledged by the Ministry that because the Thanksgiving Holiday fell on his regular day off, Mr. Candler would end ug working more hours in that week than another 9 employee who did not work on the Thanksgiving Holiday and had his regular day off on another day of the week, e.g., Wednesday. It was indicated that at the same time, this would increase the number of hours that Mr. Candler had to credit against the 1,840 hours that he was required to work in the ten-month period and that under Schedule A, he would either be required to take time off on an hour for hour basis to bring his accumulation into line or be paid overtime credits for excess hours leftoutstanding at the end of the averaging period. It was agreed that under this scheme, Mr. Candler would not be entitled to receive a day off. Whether he received time off or overtime credits instead, it was submitted, was left to the discretion of management. Mr. Candler did not have absolute entitlement to a compensating day off under Article 19.3, it was submitted, because the Addendum and Schedule A of the Collective Agreement were intended to function as a complete code superceding Article 19 in its entirety for Residential Counsellors in the position of Mr. Candler. We do not agree. We cannot help but think that if the parties intended for these provisions to supercede all of Article 19, a not insignificant exclusion, they would have said so. They did not. This leads us to conclude that while the parties might have intended the provisions of the Addendum and Schedule A-- focused as they are upon Residential Counsellors -- to act as the 10 primary determinants of the rights of the parties in the areas that they addressed, they did not exclude applicability of the broader provisions of the Collective Agreement in the absence of conflict. Here, there is nothing to exclude the applicability of Article 19.3. It does not conflict with the Appendix. The provisions of the Appendix to which the Ministry referred-- those dealing with excessive buildup of hours and credits for hours worked over the annual requirement -- merely express the mechanics of handling buildups of hours. There is nothing in them to prevent application of a provision such as Article 19.3, entitling an employee to receive another day off when a holiday coincides with his or her scheduled day off. Accordingly, the grievance of Mr. Candler is allowed. DATED at London, Ontario, this 30th day of June 1988. -/I. Freedman,&&er C. Milley, Member