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HomeMy WebLinkAbout1988-0159.Mellun.88-10-17',~." C.~,~.~ ~..,~ ONTARIO ' EMPLOYESDELACOURONNE -. . ~ .= GROWN EMPLOYEE$ DE L'ONTARfO "' .... · ~ GRI~tANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS :180 DL/NDA~ STREET WES't' TORONTO. ONTAR. IO. MSG 1Z~-SUITE 2100 TELEPI-/ONE/T~L/~PHONE I80, RUE ~UNOAS OUEST, TORONTO, (ONTARIO) MSG tZ8 - BUREAU 2100 (41,8) 598-0688 0159/88 IN TH~ M~.TTER OF AN ARBITNATION Under THE CROWN FJ~LOYEE$ ¢OLLECTI'FE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU [ Alex Gr ~ evor - and - The Crow~ in ]~ght of ~Mirtistry o~ Correctional Services ~ployer 9afore: A, BarreT~ VAce-Chairperson F. Taylor Member D.C. Nontrose Member For the Grievor: H. Law Grievance OfFicer Ontario Public Se~vine E~p3cyees Union For ~he F~plo~er: C. S]ater Senic}~ Co~.tnsel Management Board of Cabfner DECISIO~ The grievance in this matter reads as follows: "I grieve that my hours of work were changed from Schedule 6 to Schedule 4.7 without my being notified and my salary has not been adjusted accordingly as per article 7.6 of the Collective Agreement." Different groups of employees governed by this Collective Agreemen~ have differen~ hours of work. Article 7 establishes Schedules and normal hours of work within those Schedules, as well as~'providing for adjustments when an employee transfers from one Schedule to another. The relevant portions of Article 7 are set out below: "ARTICLE 7 - HOURS OF WORK 7.1 SCHEDULE 3 and 3.7 The normal hours of work for employees on these schedules shall be thirty-six and one -quarter (36~) hours per week and seven and one-quarter (74) hours per day. 7.2 SCHEDULE 4 and 4.7 The normal hours of work for employees on tkese schedules shall be forty (40) hours per week and eight(81 hours pe~ day. 7.3 SCHEDULZ 6 The normal hours of work for employees on these schedules shall be a minimum of thirty-six and one-quarter(36¼) hours per week 7.4 SCHEDULE A Averaging of Hours of Work-see Appendix 3 attached 7.5 Where the Employer adjusts the number of hours per week on a schedule, the employee's weekly salary based on his basic hourly rate shall be adjusted accordingly. The adjustment will be discussed with the Union prior to such adjustment being made. 7.6 Where the Employer intends to transfer employees or an employee from one schedule to another schedule, the Employer will discuss the transfer with the Union prior to such transfer. When the transfer occurs, the employee's weekly salary based on his basic D£CISION The grievance in tkis matter reads as follows: "I grieve that my hours of work were changed from Schedule 6 to Schedule 4.7 without my being notified and my salary has not been adjusted accordingly as per article 7.6 of the Collective Agreement." Different groups of employees governed by this Cellective Agreement have different hours of work. Article 7 establishes Schedules and normal hours of work within those ~chedules, as well a$~'providing for adjustments when an employee transfers from one Schedule to another. The relevant portions of Article 7 are set out below: ARTICLE 7 - HOURS OF WORK 7.1 SCHEDULE 3 and 3.7 The normal hours of work for employees on these schedules shall be thirty-six and one -quarter (36¼) hours per week and seven and one-quarter (7¼) hours per day. 7.2 SCHEDULE 4 and 4.7 The normal hours of work for employees on these schedules shall be forty (40) hours per week and eight(8) hours per day. 7.3 SCHEDULE 6 The normal hours of work for employees on these schedules shall be a minimum of thirty-six and one-quarter(36¼) hours per week 7.4 SCHEDULE A Averaging ~of Hours of Work-see Appendix 3 attached 7.5 Where the Employer adjusts the number of hours per week on a schedule, the employee's weekly salary based on his basic hourly rate shall be adjusted accordingly. The adjustment will be discussed with the Union prior to such adjustment being made. 7.6 Where the Employer intends to transfer employees or an employee from one schedule to another schedule, the Employer will discuss the transfer with the Union prior to such transfer. When the transfer occurs, the employee's weekly salary based on his basic hourly rate shall be adjusted accordingly." ~he foundation for this grievance arose when the Employer and Union agreed by a written Memorandum of Settlement to transfer a whole class of employees, Hospital Housekeeper 2's, from Schedule 6'to Schedule 4. Shortly thereafter a new salary for Hospital Housekeeper 2's was negotiated between the par~ies and embodied in the Collective Agreement. Essentially, the grievor claims that the job used to be a 36% hcur a week job and is now a forty-hour a week job,. and his hourly rate of pay should be adjusted upwards pursuant to Articla 7.6 to reflect the increased hours of work. The facts giving rise to this grievance are not in dispute and were set out by the parties in an agreed Statement of Facts as follows: " 1. She Grievor is employed as a Sanitation Supervisor for the Ministry of Correctional Services at the Guelph Correctional Centre. The position is classified as a Hospital Housekeeper 2 position pursuant to the Crown's classification system. 2. Mr. Mellun, the Grievor, wa~ appointed to this position on May 4, 1987 as the result of a competition. 3. Prior to the appointment of Mr. Mellun to the position of Sanitation Supervisor, ~ospital Housekeeper 2, the parties negotiated a change in classifications, including the classification of Hospital Housekeeper 2 and the positions included in this classification. The result of these negotiations was a Memorandum of Settlement between the Union and the Crown, signed on February 3, 1987. 4. In the Memorandum of Settlement, the parties agreed to the transfer of the Hospital Housekeeper 2 class from Schedule 6 of the hours of work schedule to Schedule 4 of the hours of work schedule -3- 5. This memorandum was ratified by the parties on March 31, 1987. March 13, 1987 was the effective date of the transfer of the Hospital Housekeeper 2 class, and the positions in this class, from Schedule 6 to Schedule 4. This Memorandum of Settlement formed the basis of the Collective Agreement between the parties covering working conditions and employee benefits for the term of January 1, 1986 to December 31, i988. 6. The Grievor's salary upon appointment was $614.98 per week. This was the result of a further Memorandum of Settlement covering salaries in the General Occupational group, which included the Hospital Housekeeper 2 class, signed on March 21, 1987. This Memorandum of Settlement was embodied in a Collective Agreement coverin~ salaries in the General Occupational group signed by the parties on April 16, 1987. 7. Prior to the Grievor's appointment to the position of Sanitation Supervisor, Hospital ~ousekeeper 2, the position was filed by Mr. Harry Flynn. Mr. Flynn retired from the position on December 31, 1986. 8. The vacancy created by the retirement of Mr. Flynn was advertised in a February edition of the Crown's publication, topical. The February advertisement indicated that the position was in Schedule 6. The advertisement indicated that the deadline for applications was March 6, 1987. The Grievor submitted his application for the position in a timely manner and was granted an interview on April 8, 1987. He was subsequently offered the job over the telephone and, on April 27, 1987, was sent a letter confirming his appointment to the position effective May 4, 1987. This letter made no reference to the hours of work schedule covering the position. The grievor was first informed on May 4, 1987 that the position was in Schedule 4. 9. When Mr. Flynn worked as the Sanitation Supervisor, Hospital Housekeeper 2, and the position was in Schedule 6, Mr. Flynn's normal hours of work were 40 per week. Mr. Flynn's normal hours of work a week had been 40 since his appointment to the position, some years prior to his retirement. 10. When Mr. Mellun was appointed to the position, after the transfer of the position to Schedule 4, Mr. Mellun's normal hours of work per week were 40. In the interim between the retirement of Mr. F!ynn and the appointment of Mr. Mellun, the duties of the Sanitation Supervisor position were assigned to a Correctional Officer 2 at the facility, Mr. Wayne Smith. During the time of his assignment to the duties of Sanitation Supervisor, Mr. Smith worked and continued to be paid on the basis of a 40-hour work week as are all Correctional Officer 2's at the facility. Mr. Smith was paid the higher rate of the Hospital Housekeeper 2 position during the time of his assignment pursuant to Article 6 of the Collective Agreemest." It is to be noted that Schedule 6 employees have a minimum number of hcurs of work per week but no maximum. Schedule 6 employees are not entitled to overtime pay pursuant to Article 13 which covers.overtime pay for all other Schedules of employees. The only entitlement under that article for Schedule 6 employees is to equivalent time off if they are required to work on a day off. Thus it is conceivable that a Schedule 6 employee could be required to work 60 hours per week with no overtime pay. The Union argue~, first, that even though ~the grievor himself was not actually transfe.r~e~ ~romS~hedule .6 ~o Schedule 4 because he was not appointed until after the new Schedules were in place, nevertheless he should have the advantage of Article 7.6 because he "steps into the shoes of" the previous incumbent, Mr. Flynn. The ~ployer replies that Article 7.6 is clearly intended to adjust salaries of people who move from one Schedule to'the other while holding a job,and that it is individuals only who are intended to be compensated. Further, the Ur~ interpretation would in fact create ~ new wage scale for positions within a classification if it were the positioz that was to be adjusted as opposed to single employees or groups of employees who were obliged by the re-classific~i~ to work either longer or shorter normal hours of work. Employer postulates that if the Union interpretation wer~ ~ be accepted it could entirely back fire on it because th~ Employer is entitled to transfer groups of employees from one Schedule to another under its Managemen~ Rights powe~ ~ the Collective Agreement and could theoretically move al~ to Schedule 6, thus reducing the number of hours of work ~r week for all except Schedule 3 employees, with an attend~% reduction in pay due to the shorter kours of work. The Union's second argument is that a "basic hourly rm~e" must be established for the purpcses of Article 7 and that the only hours referred to for Schedule 6 employees are ~% hours per week and therefore that should be the benchmark, The Employer argues that the grievor, Mr. Mellun, was ne~e~ & Schedule 6 employee and therefore Article 7.6 has no appli~a%i~n to him because he was not transferred from one Schedule to another. At the time Mr. Mellun was appointed to the job it was a Schedule 4 job. He has always worked forty hours per week on the job, as did his previous incumbent for many years. The Employer says that the grievor is claiming more salary for the same work and thus seeking to amend the Collective Agreement -as it relates to wage rates. The Employer points out that Schedule 6 employees have "minimum" hours of work unlike Schedule 3 or Schedule 4 employees. The Employer says that "normal hours of work" are the hours you actually work on a regular basis. The effect of the Union argument is to read out the word "minimum" in Article 7.3. The Employer says that if Article 7.6 were intended to effect a permanent change in salary schedules, then the Collective Agreement should reflect that reality, but it does not. After the Schedules were changed the wage rates were negotiated and a weekly salary of $614.00 was established for ~ospital Housekeepers 2. On the Union interpretation of Article 7.6, the wage.rates for all Hospital Housekeepers 2 would rise to $670.00 per week. The Union relies on a Grievance Settlement Board decision ~275/8~ (Fawcett) where the Board held that Schedule 6 employees were entitled to travelling time under Article 23.6, against the Employer's objection that because Schedule 6 employees had ho. maximum hours of work, travel was simply part of their work and should not be compensated for in addition to their annual salary. The Board in that case noted that Schedule 6'employees were treated differently under the Collective Agreement for purposes of overtime and holiday payments by specific reference in those articles. Article 23 did not provide special treatment for Schedule 6 employees and therefore was intended to cover all employees. In that case, it was conceeded by the Employer that the grievor's normal hours of work were 7% per day and 36¼ per week. This case differs from Fawcett in that, first of all; the normal hours of work for Hospital Housekeepers has always been 40 hours per week, and in Fawcett, the Employer conceeded that the normal hours of work for that grievo~ were 36%. We have concluded: First that Article 7.6 applies to individual employees who while incumbents of a 3ob are transferred from one Schedule to another. The Article does not, and was not intended to raise or lower the pay rates for an entire classifi- cation on a permanent basis. Pay rates for classifications are bargained separately in the collective bargaining process and it is only individuals who are to receive adjustments pursuant to Article 7.6. Secondly, Mr. Mellun was never a Schedule 6 employee and Article 7.6 would not apply to him in any event. Finally, in determining the "Normal hours of work" for Schedule 6 employees, who are an exceptional group, reference must be made to actual working hours. For all of the above reasons, the grievance is dismissed. Dated at Toronto, this 17Ch. day of October, 1988. Anne Barrett, ~ce-C~ai~person F. Taylor, Me