HomeMy WebLinkAbout1988-1055.Krete.89-05-25 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ON TAR/O
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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IN THEMATTEROFANARBITRATION
Under
THE CROWN EMPLOYEES CO?3mCTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Krete)
- and - Grievor
The Crown in Right of Ontario
(Ministry of Labour)
Employer
Before: R.L. Verity Vice-Chairperson
J.D. McManus Member
M.F. O'Toole Member
APPEARING FOR Mitch Bevan
THE GRIEVOR: Grievance Officer
Ontario Public Service
Employees Union
APPEARING FOR Susan Currie
THE EMPLOYER: Staff Relations Officer
Staff Relations Branch
Human Resources Secretariat
Hearing: March 1, 1989
DECISION
In a grievance dated September 27,.1988, Ronald Krete alleged an
Employer violation of Article 14.1 of the Collective Agreement in the denial of
"call back" pay for work performed on September I2, 1988 "beyond the normal
working hours" ?he remedy requested was payment of four hours pay at tin~ and
.one-half the basic hourly rate.
Article 14.1 reads as follows:
ARTICLE t4 - CALL BACK
14.1 An employee who leaves his place of work and is
subsequently called back to work prior to the starting
time of his next scheduled shift shall be paid a
minimum of four (4) hours' pay at one and one-half
(1-1/2) times his basic hourly rate.
The following additional provisions of the Collective Agreement were
cited by the parties:
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 (36-1/4)
hours per week and seven and one-quarter (7-1/4) 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 this
schedule shall be a minimum of thirty-six and
one-quarter (36-1/4) hours per week.
7.4 SCHEDULE A
Averaging of Hours of Work - see Appendix 3 attached.
ARTICLE 13 o OVERTIME
13.1 The overtime rate for the purposes of this Agreement
s~all be one and one-half (1-1/2) times the employee's
basic hourly rate.
13.2 In this Article, "overtime" means an authorized period
of work calculated to the nearest half-hour and
performed on a scheduled working day in addition to
the regular working period, or performed on a
scheduled day(s) off.
13.3.1 Employees in Schedules 3.7 and 4.7 who perform /
authorized work in excess of seven and one-quarter
(7-1/4) hours or eight (8) hours as applicable, shall
be paid at the overtime rate.
13.3.2 Overtime shall be paid within two (2) months of the
pay period within which the overtime was actually
Worked.
13.4 Employees in Schedules 3 and 4 who perform authorized
work in excess of seven and one-quarter (7-1/4) hours
or eight (8) hours as applicable, shall receive
compensating leave of one and one-half (1-1/2) hours
for each hour of overtime worked, at a time mutually
agreed upon. Failing agreement, the ministry shall
reasonably determine the time of the compensating
leave.
13.5 Where there is mutual agreement, employees may receive
compensating leave in lieu of pay at the overtime rate
or may receive pay at the overtime rate in lieu of
compensating leave.
13.6 Compensating leave accumulated in a calendar year
which is not used before March 31 of the following
Year, shall be paid at the mate it was earned.
Effective March 1, 1978, the March 31 date may be
extended by agreement at the local or ministry level.
13.7.1 Employees who are ~n classifications assigned to
Schedule 6 and who are required to work on a day off,
shall receive equivalent time off.
13.7.2 Notwithstanding 13.7.1 and Article 19.6 (Holiday
Payment), employees who 'are in classifications
assigned to Schedule 6 and who are assigned to foreSt
fire fighting or related duties, shall be paid one and
one-half (1-1/2) times the employee's basic hourly
rate, to be calcualted on the basis Of thirty-six and
one-quarter (36-1/4) hours per week, for all such work
after eight (8) hours in a 24-hour period.
ARTICLE 19 - HOLIDAY PAYMENT
19.1 Where an employee works on a holiday included under'
Article 48 (Holidays/, he shall be paid at the Mate;of
two (2) times his basic hourly rate for all hours
worked with a minimum credit of seven and one-quarter
(7-1/4), eight (8), or the number of regularly
scheduled hours, as applicable.
19.2 In addition to the payment provided by section 19.1~
an employee shall receive either seven and one-quarter
(7-1/4) or e~ght (8) hours pay as applicable at his
basic hourly rate or compensating leave of seven and
one-quarter (7-1/4) or eight (8) hours as applicable,
provided the employee opts for compensating leave
prior to the holiday.
19.3 When a holiOay included under Article 48 (Holidaysl
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.
19.4 Any compensating leave accumulated under sections 19.2
and 19.3 may be taken off at a time mutually agreed
upon. Failing agreement, such tme off may be taken'in
conjunction with the employee's vacation leave or
regular day(s) off, if requested one (1) month in
advance.
19.5 Any compensating leave accumulated under sections 1~.2
and 19.3 in a calendar year which is not used before
March 31 .of the following year shall be paild at. the
rate it was earned. Effective March 1, 1978, the
March 31 date may be extended by agreement at the
local or ministry level.
19.6 Notwithstanding anything in Article 19, employees who
are in classifications assigned to Schedule 6 and who
are required to work on a holiday included in Article
48 (Holidays) shall receive equivalent time off.
The matter proceeded primarily on the basis of oral argument following
the submission of an Agreed Statement of Fact. The grievor, Ronald Krete,
testified briefly. The Agreed Statement of Fact is as follows:
1. The Grievor is classified as an Occupational Health
and Safety Officer II~ whose hours of work are
determined by Schedule 6 as contained in Article 7.3
of the Collective Agreement.
2. On September 12, 1988 at 6:45 pm, he was called at
home by Mr. Leon Mylemans, Acting Administrator,
Industrial Health and Safety Branch, regarding a PCB
spill at the Georgian Bay Kennedy Company in Owen
Sound.
3. As a result, the Grievor made three telephone calls
from his residence in order to deal with the problem.
4. Resolving the issue took one hour.
5. The grievor is seeking call back in accordance with
Article 14.
The evidence established that as_ an Occupational Health and Safety
Officer, the grievor is required to enforce and ensure compliance with the Ontairo
Occupational Health and Safety Act and all regulations thereunder in accordance
with Ministry Policies and Procedures. The grievor testified that his normal
working hours are from 8:30 a.m. to 4:30 p.m. Monday to Friday inclusive.
According to his evidence, he works at his Kitchener office some 20-25% of the
allocated time and at his home approximately 5-10% of the time. The vast m.ajority
of the grievor's, wo~k is field w~r~.
According to Article 7.3 of the Collective Agreement, the normal hours
of work for Schedule 6 employees is "a minimum of thirty-six and one-quarter
(36-1/4) hours per week". The issue is whether or not the grievor is entitled to
call back pay under Article 14.1 ~n these particular circumstances.
The Union contends that the grievor was wrongfully denied call back pay
for work performed on the day in question. The thrust of the Union's argument was
that the Article in question does not specifically disentitle Schedule 6 employees
to call back pay, and if that had been intended Schedule 6 employees would have
been expressly excluded. It was the Union's position tha~ in these circumstances
the grievor's home was also his place of work. tn support, the Union submitted
the following authorities: OPSEU (James H. Fawcett) and Ministry of Transportation
and Communications, 275/82 (Draper); and Re Shell Canada Ltd. and Oil, Chemical
and Atomic Workers, Local 9-848 (1974), 6 L.A.C. (2d) 422 (O'Shea).
The Employer's argument was two-fold. First, the facts did not support
a call back situation. Secondly and in the alternative, the grievor as a Schedule
6 employee was not entitled to call back pay. The Employer submitted the
following authorities: OPSEU (James H. Fawcett) and Ministr~of Transportation
and Communications, supra; Thomas Bell and Ministry of Community and Social
Services, 116/78 (Swinton); OPSEU (William Grant) and Ministr~ of Correctional
Services, 197/83 (Kennedy); OPSEU (J. Harvey, R. Cutrone) and M~nistry of
Transportation and Communications, 77/86, 78/86, 79/86, 80/86 (Forbes-Roberts);
OPSEU (MCGregor, Steel, Noon) and Ministry of Community and Social Services,
0695/85 (Wilson); Re County of Kent and Ontario Public Service Employees' Union
(~982), 8 L.A.C. (3d) 188 (Swinton); Re International Molders and Allied Workers
Union, Local 49 and Webster Manufacturing (London) Ltd. (1971), 23 L.A.C. 37
(Weiler); Re Ontario Steel Products Co. Ltd. and United Automobile Workers, Local
127 (1973), 3 L.A.C. (2d) 161 (Hinnegan); Re Shell Canada ltd. and Oil, Chemical
and Atomic Workers, Local 9-848, supra, Leco Industries Ltd. and Oil, Chemical and
Atomic Workers International Union, Local 9-819 (1980), 26 L.A.O. (2d) 80
(Brunner); Re Hydro-Electric Commission of Town of Mississauga and International
Brotherhood of Electrical Workers, Local 636 (1975), 8 L,A.C. (2d) 158 (Ferguson);
Re Weyerhaeuser Canada, Ltd. and Pulp, Paper and Wood Workers of Canada, Local 10
(1983), 9. L.A.C. (3d) 308 (Bird).
Despite the Union's able submission, the Board cannot accept its
argument on the merits. In these circumstances, the grievor, although performing
work, is not entitled to call back pay. Briefly stated, under the current wording
of Article 14.1 the essential elements to qualify for call back pay are not
present. Article 14.1 c~ntemplates an employee working a scheduled shift, and
that an employee has left his place of work and that he or she is called back to
work prior to the next scheduled shift. In our view, Schedule 6 employees
required to work a minimum of 36-1/4 hours per week are not shift workers in the
traditional sense. Article 7.3 makes no reference to the number of hours worked
in a given day. Similarly, it cannot be said that an employee has left his place
of work if, as the Union suggests, the home is one of his places of work.
Under Article 13.7.1, the grievor as a Schedule 6 employee is not
entitled to overtime pay or compensating leave but rather is entitled to
equivalent time off. Similarly, under the Holiday Pay provisions of Article 19.6,
Schedule 6 employees required to work a holiday are not entitled to holiday pay,
but are entitled to receive equivalent time off. The sole exception is contained
in Article 13.7.2 for Schedule 6 employees assigned to forest fire fighting or
related duties who are entitled to overtime or compensati'ng leave under Article 13
and also to holiday payments under Article 19.
Clearly, call back pay is a form of payment for overtime work. In each
case it involves unscheduled overtime. See generally Re County of Kent and
Ontario Public Service Employees Un~on, supra, (Swinton); Re International Molders
and Allied Workers Union~ Local 49 and Webster Manufacturing (London) Ltd., supra,
(~eiler)~ Re Shell Canada Limited and Oil, Chemica7 and Atomic~Workers, ~ocal
9-849, supra, (O'Shea); and OPSEU (McGregor, Steel, Noon) and Mi~nistry of
Community and Social Services, supra, (Wilson).
In the McGregor case, Vice-Chairman Wilson makes the following relevast
comments at p. 8:
...Clearly Article 14 is functionally part of Article 13 and
could without any violation of its function have simply been
numbered 13.8. The reference to rate of pay in Article 14, as
union counsel pointed out is in exactly the same language as
the language of 13.1 ....
It is now well established that Schedule 6 employees are not entitled to
overtime, tf those employees are disentitled to overtime pay, e×ce~t for those
employees referred to in Article 13.7.2, it would seem illogical, we think, that
such employees would be entitled to call back pay, which is a form of overtime
pay.
For all of the above reasons, this grievance is dismissed.
DATED at Brantford, Ontarfo, thfs .25ch day of >~)', A.D., 1989;
R. L. VERITY, Q.C. - VICE-CHAIRPERSON
· J.~cM~nus- MEelBER
M. O'TOOLE - MEMBER