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HomeMy WebLinkAbout1988-0595.Union.89-03-31 ~,, I~. , ~. ,: ,~.~- t* .~,~. '~ - ON TARIO EMPLOY~:S DE LA COURONNE '.', :'~ ,.,/ .,~;".~i ~,~." : : . CROWN EMPLOYEE~ DE L'ONTARIO BOARD DES GRIEFS t80 OUNDAS STREET WEST, TORONTO, ONTARIO. MSG 7Z8 -SUtTE 2~ TE~PHONE/T~L~PHONE 180, RUE DUNDAS OUES~ TORONTO. (ONTARIO) MSG 1Z8 - B~EAU 2~ ~ (416) 5~-0~8 ~ ' 0595, 0695/88 J IN-THE MATTER OF AN ARBITRATION Under THE cRowN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE SRIEVANCE SETTLEMENT BOARD Between: 0PSEU (Union Grievance) · ' GrJevor -and - The Crown ~n Right of 0ntarJo (Ministry of Correctional Services) Employer Before: Barry B. Fisher Vice-Chairperson I. Freedman Member C. Linton Member APPEARING FOR J. Kovak "' THE UNION: Counsel Gowling and Henderson Barristers and APPEARING FOR D. Brant Labord THE EMPLOYER: Counsel Hicks, Morley, Hamilton, Stewart, Sto~e Bar~ister~ and ~o~,icitors Hearino: De¢:embe? ]4, 1988 DECISION These two grievances Were on.consent heard t6'gettier Ori the basis of an.. agreed statement of facts. 7, ,~ . The issue in this case involves an interpretation· of·SectiOn 3.8.1 of the · Collective Agreeffieht entitled "Attendance Credits and Sick Leave". :The relevant section reads as folloWs: Employees who work thirty-six and one-quarter (36 lf4.) · or. Jorty (40) hours per week s. haIl ~earn attendance credtts ~ - of'one and one-quairter (1 1/4) days for ed~h calendar · , month .of~.ll att'endancd Attendance credits may be used · forprofdch'on purposes only i.n the'event that.an . .' employee is. unable to attena to his'official duties _~y · reason Of illness or injury. However, accUmulated ' attendance credits'earned prior to April 1, 1.978 m~ be" . , . ,. trarq, ferred to the Classified Service when ti~e appomtment · to the Classified Service is madepom', continuous, unbroken, ff-ull-time Unclassifi. qd- Sqrvice. -... ' . ' · ' Tl~e relev~t agreed facts'are as'follows: 1. The .Union (OPSEU) filed a policy grievance dated June 13; 1988 st. ating that the. employer, .Ministry of Corr_e_ctional. Senqces, Guelph, had violated Article 3.8.1 of the collective agreement. The Statem~ht of Gdeoance provides: 'T_he union gri'eves that .uncIassifidd staff at the Guelph Corredtionat . Centre are not accumulating attendance credits when worMng 40 hour per week fdr full,calendar months as per j4rticle 3.8.'1 of the Colldctive Agreement'. ' ' · -. · 2. - The union (oPS~U).fited a policy gn'evanc~ dated July 6, 1988 stating that the em_ pIoyer, Minis'try of Correctional Service's, had violated Artictes 3. 4, 37.8.1, and 3. 9 at the Elgin-Middlesex Detention centre. The allegations concerning Artt'clks 3.4.aruf 3.9 have been withdrawit. ... · .~. -. ' ~ 3. The parties agreed to consolidate these twb grievances. 4. · The relevant collective qgre. ement between Management Board of Cabinet and Ontario Public Service Employees U,niofl .exptres. December 31, 1988. 5. The grievances concern unclassified employees whoseequivater~t civil service classification is that of Correctional Officer 1. (Schedule4) 6. The hours per ·week Of the classified C. 0.1 position are 40 (Section 9(1) tLR. O. 1980, Regulation 881) -2- Z At Guelph Correctional Centre there are .approximately~ 35 unclassified employees whose ecluivale~t classification. is that of CO. 1. ~ · ,At Elgin-Middlesex Detention Centre there is a fl__uctuating number o.f employees whose equivalent classification is that of C. O. L The numbers range '.. ' Oetween approximate[yl. 4 and 2I. . .... .~ .. ~ 8. Unclassified employees are appointed by the Minister or his designee. 9. At the two institutions there exist 2 types of unclassified employees. 10. The fi_~. t type of unc'lassified e.mployee,, is employed under a limited term c,o,,n, tract. That conti'act stipulates treat the Normal hours of work not to exceed ttze normal hours of wo?k per wdek of the classified eClUii~alent. These appointments are generally made tn response to a temporary, non-re, curring vacancy which is as a result of a classified employee being, off on Matemiiy Leave,.Long Term Disability, etc.' ' While employed these emploj~ees are scheduled in t~e same manner as the classified equivalent. That is; they are scheduled to work Z5 or 8 ::.5~;.._: hours per day, 5 day.s'pei' week, for eith. e.r 36.25 or 40 hOftrs per week. .:This schedule continues.tor the duration o! tt~e contract. These employees are placed on the OJ p.ay__roll th.e same as for classified_ em'ployees~ The Ministry. has. been applyi~ng `Article 3.8.1 to mis type o[employee. The classified equivalents,tor'tnese~types o! appointments have tncluded Clerical typist 2 and Office`Administration & 11. .The second, type of unclassified employee is ,a~?o employed under a limited term contr, a. ct. That contract provides that the '`Authorized ho'urs .of work as required up to. the amount specified for thor employee's classified equivalent. These typ. es,qf employees are used as fill-ins. They are utilized to · fill in for the cIas~fi.ed correctibncd.qfficers When the classified correctional. officers are absent due to staff trainin_g, illness, union-leave, lieu days, vttcation, ~?) :i t)ereavement leave, persona[leave of absence, etc. ' · . · They employees are telephoned at their home by the institution to report for a shi~. The ambunt of tiotice r. anges from none to 1, 2 or 3 days. In the event that the insti~ti.on is unable to'cOntact th.e. employee: or the em. plo. yee is unavailable for the shift_ tne institution; then calls tne next emptoyee on the hst. Sometimes the unclassified aPe tentatively arranged, to come tn. on greater than 3 days' notice but th~ is subject to change. This qualification aoes not ~ist at Guelph. ' ' ' . · In the event that the mstttutton ts able to ·contact the employee and the employee is available, 'the employee is advised to report to w. ork for a specified number of hours. The shift may be 4, 8 or 12 hours in duration. These employees are not placed on the O1 payroll. ' · 12.' There exists Occasions where some unscheduled unclassifiOd employees work at 40 straight-time hours per week for each week in a calendar month. -3- 13. There exists occasions where so'ne unscheduIe'cl unclassified "' employees work less than 40 straight-time hours in a,week in each -.of the weeks of . a calendar month but work ovemme hours which when added to the straight,time ' · '~ ~' · hours causes the employee to 'work 40 hours per week in each.week in a calendar month. 14. In'all other ~ircumstances the unscheduled unclassified ernt~ldyees do not work :40 hours per week for each week in a calendar montheven when the straight-time and over-time hours.are ~dded togbther. ' 15. At the instii'ution in Guelph there exist 1 and poSsiblY 2 unschedulod unclassified, employees wtio have worked 40,hours per week fgr all weeks in a .. .. calendar, month on one occasion in the 6 months preceding, the grievance, ....... 16. There exists a greater incidenCe of'unscheduled unclassifie'd'~ '" .' emplgyees worMng 40 hours per week for aIl w, eeks ora calendar monttt at the Lo-ndon institution. ' :~"~;. ' 1 Z Prior to April 1,"1978, the collective agreement pi'ovM, ed fot:'a si~k " ~ ' leave credit system' stmilar to the one found in ~4'rticle 3.8.1of t~e current collective agreement. ,The. system'was applicable to. the~ ciasfified.staff. . The system wa~ also .applicable t'o the unclassified staff to the same extent as it is. in tt~e current, collective agreement. . · .. · ~ffective Ap_ril 1, 1978, the sick leave credit system was re_placed with the Short Term Sickness plan for the classified employees. Th~s plan still exists under the current collective agreement for the classified emptoYees.- , .. . · However, the sick leave credit system remained for the unclassified . .. employees. " ~'Currently, under the classified_ Pr~visions'of the colle'ctive "" ' - 'i - agreement,~-attendance credits'accumulated under t.he. sick-.Ieee c,,r,edit. ~stem prior to April, 1~978 can be used to top-up amounts payaote uncter me ,non ~ erin The key'issues are found in paragraphs. 12 and 13 .of the. agreed statem.e, nt .o.f facts. Simply put, the. issue as whether or not unclassified employees who are on a call-in basis are'entitled to' earn attendance credits under paragraph 3.8.1 if they, 'm fa. ct, work 40 hours,per week in a calendai' month' of full attendance.... The position of Management is that this benefit is only available to those unclassified staff wh.o are scheduled to work on a full-time basis during their contract period and is not available to employees employed on a call-in basis even if those call-in -4- employees actually work 40 hours per week for a full month. Manageme~m's logic seems to flow primarily from the last sentence of the clause which makes reference to. ·. continuous'unbroken full-time Unclassified Service and from'thatwe are .to conclude that this provision is only tO apply to those people who are not on call-in status. The Board does not find.this argument persuasive ~nd rather finds' the ' ~" "'"work" arguments, of the Union more persuasive on this Point. The term under 3.8.1 is not defined and it seems 16gical that it should be interpreted in its common usage so that if a person actually does work 4'0 hours per week for a calendar month of full attendance, then he qualifies Under the paragraph no'matter what his contract says, As. '~.' ~.': was elo que ntly stated bY Vice'Chairperson Samuels in Union Grievance 1631/87 at page 6: ",4rticlk 3.'9 Of the collective agreement does not , . ~ - . . ' distin, fl~ish between unclassified staffwho are:on,, "full- time contracts and those who are on "part-time" contracts. -The hature of_the employee's contract is not the determining factor. Rather/'lt i~ the actual.work pattern o£ the employee which determines whether, or not the OHIP premium must be pa, id'bY th.? Ministry. , Applying the same .logic to'this case, it does not matter what,the emplo~,ee's' court, act says, rather we look at'what t~he employee actually does and' if he works 40 hours each "' ~':'">~ week in a mOnth and he has full attendance, then he should be entitled to receive his . attendance credit whether or not he is a call-in employee .br.a full-time employee. There is, however, a second criteria with' respeci' to entitlement under this' clause which is a little-more difficult to determine than the requirement to work 40 hours per week. The second component of this provision is that the employee has a calendar month of"full a~tendance" Managemenf raised the issue that because these people can refuse to do work, therefore, not'even'be scheduled for it, it would be difficult for management to determine whether o'r not a persoi~ had full attend//nce. First of all, from a practical point of view, the question of full attendance will be only relevant in those Situations where a person has already worked 40 hours per week in the. full month and therefore, i't is unlikely that ir'would occur very often. Moreover, this Board has no problem in fashioning a definition of the concept of "full attendance" to 'simply mean that the emplOyee worked every day that he was asked to unless his 'refusal was on reasonable grounds. This Would mean that an employee could i~r0perly refuse to · work hours and not be denied his attendance credits if the refusal Was on reasonable ... grounds, ie. sickness, death in family or other matters that have been a_.ccept~d by arbitrators as being reasonable. . ~ There was an agreement between the parties that the first part of this - decision Would only speak to liability and that another hearing would l~e scheduled for argument on the appropriate remedy. The questions of remedy wOuld include retroactivity and to what extent this decision extends beyond the inst.i~tutj.ons in.question to either the entire Ministry or to the entire government. In summary, this Board finds that the grievance is allowed with respect to liability and that unscheduled unclassified employees who work 40 hours per week for each calendar month with full attendance, being defihed as w6rking every day asked unless refusal was on reasonable grounds, would be 'entitled to attendance credits and sick leave under paragraph 3.8.I of the Collective Agreement._ -6- This Board hereby directs the Registrar to arrange another hearing date to argue the issue of a remed, y. Dated at Toronto, this 3~st day of March , 1989. ce chairperson ·., I2 t~reedman, Member C. LintOn, Member