HomeMy WebLinkAbout1988-0301.Bergsma.88-09-28 ~"' ~ ~ ~ O/VTARXO ~M~LOY~S DEU~ COURONN~
r ~ CROWN EMPLOYEES DE L'ONTA~[O
GRIEVANCE ~9~18510N DE
(~- S~LEMENT REGLEMENT
~- ' 'BOARD DES GRIEFS'
~80 DUNDAS ST~ET WES~ TORONTO, ONTARIO, ~G rZE- S~ITE 2~ ~ELEPHONE/T~PHONE
18~, RUE DUNDAS OUES[ TORONT~ (ONTARIO.) MSG .IZ8 - BUR~U 21~ (416) 5~-~8
' 0301/88
'
IN THE '~ER OF ~ ~BIT~TION
Under
THE CRO~ EMPLOYEES COLLECTIVE BAR~INING ACT .
Before
THE GRIE~CE SETTLEMENT BOARD'
Between:
OPSEU (K. Bergsma}
Grievor
and
The Crown in Right of Ontario
(Ministry of Health)
Employer
Before: J.-W. Samuels Vice-Chairperson
L. Robbins Member
D.A. Wallace Member
For the Grievor: C.V. Hofley Counsel
Gowling and Henderson
Barristers and Solicitors
For thelEmployer: L.E. Horton
Staff Relations Officerl
Staff Relations Branch
Management.Board of Cabinet
Hearing: September 7, 1.988
DECISION
'-- The grievor is a child care worker at the Whitby Psychiatric Hospital.
She claims that she was denied an .overtime opportunity, and that this
constituted a breach of Article'8 of th~ local agreement between 'the~
Employer and the .Union. The local agreement was entered into-pursuant to
the provisions of the prime .collective agreement between the Employer and'
the Union, and there is no dispute that 'x~e have jurisdiction to hear and
determine an issue involving ~the interpretation of the local agreement.
At the outset of our hearing, the 'Employer raised, a preliminary
objection concerning the scope of Article 8 and whet. her the grievor's claim
.could invOlve a breach of this provision. The Employer argued that Article 8
' did not interfere with'management's exclusive right to assign overtime, and"
the grievor, was asking this Board to oversee the exercise of this exclusive
right, which was 'beyond our jurisdiction. This award will deal with this
prelkminary objection.
Article 8 of the local agreement provides:
In order to maintain a fair opportunity ~for the
.assignment of overtime, each department, or ward
shall establish an overtime opportunity list. Where
Management requires that overtime be worked,
employees on the listing will be contacted first
according to classification and'with regard for the
nature of the work to be performed.
'" Nothing in this Article shall interfere with the
exclusive right of Management to determine and
assign overtime work.
In a number of cases," this Board has considered grievances relating to
the assignment of overtime under the prime collective agreement, and has
'decided that Article 13 imposes no duty to allocate overtime on the basis of
fairness, or on any other basis. For the most recent review of the '
jurisprudence, see carter, 2291/86 and 2292/86 (Knopf).
'1
But in our case, it is not Article I3 which is in issue, and it is not the
prime collective agreement which is pleaded, but rather Article 8 of the local
agreement between the Whitby Psychiatric Hospital and the Union.
Article 8 does have something-to say about the allocation of overtime.
It says. exPressly that the parties intend that there be maintained."a fair
opportunity for the assignment of overtim, e". Article 8 makes clear the
overall criterion of the overtime allocation system-~-employees must have a
"fair Opportunity" to overtime---and it sets out various elements which must
be implemented in order to reach this overall goal.
Firstly, management, must establish an~ overtime, opportunity list. 'In
our view, it is not sufficient for management to simply establish whatever
list it chooses, ff the overarching requirement of the overtime system is to
be met (providing the "fair opportunity" to employees), then necessarily the
way in which the list is made up and administered is important. This Board
has the jurisdiction .t° determine whether an employee'has had a "fair
opportun ty, and this' would involve consideration of the overtime
oppommity list, its composition and administration.
The second sentence of Article 8 provides that the Employer may first
contact those employees who best fit the needs of the Employer, in terms of
'classification and with regard for the nature of the work to be performed. In.
other words, employees are to have a "fair opportunity" to do overtime, but
-only within the context of the Employer's requirements..
The second paragraph of the Article makes it clear that management
has the exclusive right to determine whether overtime is required and to
assign employees to overtime. This does not mean that management can
assign just any employee to do the overtime. If management~ in the exercise.
of its exclusive rights, decides that overtime is required, and decid&s to
assign employees to do overtime, then the selection of the " particular
employees who. will do the overtime must· be done according to the
requirements set out in paragraph 1 of Article 8. The second paragraph
concerns the initial decision to assign overtime generally, the first paragraph
concerns the selection of the individuals who will do the overtime.
The grievor's claim relates to overtim~ Which was assigned on Friday,
April 8, 1988, to be. done over the following Weekend. When management
. called the grievor.to 'ask her if she would work the overtime, the gfievor was
i'.
away from home and management received no answer. The Employer then
treated the gfievoras having been offered the oppommity to do the overtime,
and she would not get another opportunity until the nextrotation through the
list. The gfievor will say that she was away from home on a work-related
(5'!" errand, and the Employer will' dispute this.
'". During the course of his opening remarks, counsel for the grievor
commented that it was 'not sufficient for the Employer simply .to phone the
· grievor at her home. In an effort to assist the parties to reach a settlement · ·
now that we have. ruled on the preliminary objection, we commented at the
close, of the hearing that, generally the Employer can be considered to have
tried to contact an employee once a call is made to the employee's home.
But in this case, there may be an issue concerning the grievor's .situation, if
she was on a work-related errand. Perhaps the supervisor who was calling
employees to do overtime knew Where to f'md the gfievor and could have
called there; Or, if she couldn't be contacted because she was off ona work-
('} ..... . related errand, perhaps the Employer could give her another opportunity, to
do overtime later during the same rotation through the list.
We understand that the parties have been unable to settle this case,
and we will reconvene on. December 21.-
Done at London, Ontario, this 28th day Of September , 198&
~I.'V~t~amuelS, Vice-Chairperson "
" D. wallace, Member