HomeMy WebLinkAbout1989-1043.Speers.90-01-25 ': ONTARIO EMPL OYES DE LA COURONNE
CROWN EMPL 0 YEE$ DE L '0 N TA RiO
· GRIE¥~NCE C~OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG IZ$ o sUITE 2190 TELEPHONE/T~L~:PHONE
780, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8 - BUREAU 2100 14~6) 598-0688
1043/89
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EHPLOYEES COLLECTIVE BARGAINING_ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Speers)
GEievor
- and -
The Crown in Right of Ontario
(Ministry of Education)
Employer
Before:
J.W. Samuels Vice-Chairperson
J. McManus Member
H. Roberts Member
For the Grievor: 4. Paul
Grievance Officer
Ontario Public Service
Employees Union
For the Employer: D. Costen
Counsel
Human Resouces Secretariat
Management Board of Cabinet
~earing: January 9, 1990
DECISION 2
The 19 grievors are Residential Counsellors at the W. Ross
MacDonald School, a residentiaI school for the. visually impaired in
Brantford. They are responsible for the care and .programming for the
students who live in the residences during the time the students are not in
the classroom.
The normal working schedule of a grievor involves reporting for
work at 11:30AM on day 1; doing various duties until 11:00PM, by which
time the students should be in bed; actually sleeping at the residence until
7:00AM the next morning; and then doing various duties for two hours
until 9:00AM, when the students go to class for the day. This. Counsellor is
now off duty until 11:30AM the next day.
The issue in this case is: for what period are the grievors entitled to
shift premium during the work schedule described above?
Up until now, they have been paid their regular rate for the hours
ll:30AM to 5:00PM on day 1, then shift premium from 5:00PM to
11:00PM on day 1, then four hours pay for the sleeping time of 11:00PM
to 7:00AM, and their regular rate for the two hours from 7:00AM to
9:00AM on day 2. The grievors claim that they should also receive shift
premium for the hours 11:30AM to 5:00PM on day 1.
The difference between the parties concerns the application of
Article 11.1.1 to the grievors' working schedule. This article provides for
a shift premium as follows:
Effective March 16,1987, an employee shall receive
a shift p~emium of forty.five cents [45¢) per hour for
all hours worked i~etween 5:00 p.m. snd midnight.
Where more than llfty percent (50~) ol the hours
worked fatl v~thin this period, the forty-five cents
(45¢) per hour premium shall be paid for all hours
wortced.
It is the second sentence which concerns us here.
The Ministry takes the view that, from reporting time at 1 i:30AM
on day 1 until 9:00AM on day 2, the grievors work a 21.5 hour "shift",
with an eight-hour Sleeping break in between the two working periods
which total 13.5 hours. Of this 13.5 hours, six working hours fall between
5:00PM and midnight. These six hours attract shift premium, but they
constitute less than 50% of "the hours worked", and therefore the grievors
are not entitled to shift premium for all their hours worked.
The Union, on the other hand, argues that the grievors' normal
working schedule actually consists of three separate periods--a "shift" of
11.5 hours from l l:30AM to 11:00PM on day 1; a sleeping period from
l l:00PM to 7:00AM; and then a further "shift" of two hours from 7:00AM
to 9:00AM on day 2. In the first period (the l l.5-hour "shift" from
l l:30AM to l t:00PM on day 1), six working-hours fall between 5:00PM
and midnight. These six hours constitute more than 50% of "the hours
worked", and therefore the grievors should receive shift premium for all
their hours worked on this "shift".
There is an Addendum to the collective agreement which adds
several provisions concerning employees in the grievors' classification. It
reads, in part:
The parties hereto have agreed to the terms of this Addendum
covering employees in classifications of Residence Counsel-
Ior 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
Worl<ing Conditions and Employee Benefits Agreement.
The terms of the settiement 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
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 per>
airy, recognizing that tweNe (12} hours between
shies and two (2) consecutive days ofl may not
be possible to schedule. Normal scheduling of
hours shall be September 1 to June 30.
(b) Sleep-in is not work and shall only be compen-
sated 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 lollowing a period of work shall not
form a part of the work shift for any purpose
under this Agreement.
This Addendum does several things. Firstly, in paragraph (a), it
permits management to schedule more than the normal 40 hours per week,
where it is necessary to do so in order to provide coVerage, and to do this
without penalty. Secondly, in the same paragraph, it .permits management,
when it is necessary to maintain coverage, to schedule work without
providing for twelve hours between shifts (which is required under Article
10.2 of the collective agreement) and without providing two consecutive
days off in a week (which is required under Article 8.1 of the collective
agreement). Thirdly, in paragraph (b), it makes .it clear that time spent
sleeping in the residence is not work, and payment for.this time shall be at
the rate of 50% to a maximum of four hours per night.
This Addendum is important to us because of the last point--the
eight hours between 11:00PM and 7:00AM, when the grievors are sleeping
in the residences, is not work.
The Ministry's argument requires that we accept as one "shift" a total
period of 21.5 hours, during which the grievor's work for 11.5 hours,
sleep for eight hours, then work for two hours.
In our view, this would stretch the meaning of a "shift" almost
beyond recognition.
Generally, a shift is a continuous period of work.
5
In Churchill, GSB 2431/87 (Forbes-Roberts), the Board was asked to
determine the amount of statutory holiday pay owing to Residential
Counsellors like the gfievors when a "shift" ran into the day of the holiday.
The Board decided that holiday pay was payable for hours actually worked
on the holiday, whenever the shift commenced. During the course of this
decision, the Board remarked "a shift is a shift ...... denoting a continuous
period of work" (at page 3 1/4). We agree with this statement.
In AbrieI, GSB 619/86 (Emrich), the Board was asked to determine
whether, for Residemial Counsellors like the grievors, shift premium was
payable in respect of the eight sleeping hours in a typical work schedule.
The Board decided that the premium was not payable in respect of these
hours. Counsel for the Ministry urged us to see in the Abriel decision an
understanding by the Board that the whole period from l l:30AM on day 1
to 9:00AM on day 2 is one "shift". He suggested that this arises in the
following passage (on pages 18 and 19):
In parl:.i'~, a new clause lt.2 was introduced which adclresaes
,, 11.2 ! Nc~cwifahs~ 1~.1.1 an~ 11.1.2, where an en~loyee's hc~r$
o~ ~rk ~ly f&~ wi~tin 7:~ a.m. and §~ p.m.,
enXaloyee shall nc~ be entitled %0 receive a ahif% premi~u fc~
hours w~rked ~e~ween 5:~ p.m. and 7:~ a.m.
In the instan~ case, because of the
~ ~ese griefs, ~ir r~ ~s r~re
~I~ fr~ ii:3~ a.m. ~ 11:~ p.m. ~ w~ys
9:~ a.m. ~ ~~ foll~ a ~~ sl~. ~'~,
~t ~ ~ ~ ~I~ is e~~ f~ i1~3~ a.m. ~ ~~ ~ fr~
7:~ a.m. ~ 11~ p.m. ~e ~y foll~ a ~~ sl~in f~ ~~t
%ires shculd ~e __~c~s_ idered as par~ of the employee's r~rmal hours of
is clear that the grievers w~rk an extended shif~ beycnd 7:~ a.m. and
p.m. Thus, 1~.2 w~uld seen no~ %0 apply to their s~%ua~i~.
With great respect, we do not agree with counsel for the Ministry.
All that the Board says in this passage is that the grievors normally work a
shift which extends beyond the period 7:00AM to 5:00PM, and therefore
Article 11.2 does not apply to their situation. The Board does not say that
the grievors' "shift" runs for 21.5 hours from l l:30AM on day 1 to
9:00AM on day 2. Indeed, the Board does not say what the grievors'
"shift" is. Rather, whatever the hours of the "shift", they extend beyond
the period 7:00AM to 5:00PM.
In our view, a shift is generally a continuous period of work. It
would not be correct to characterize as one "shift" a period of 21.5 hours
with an eight-hour sleeping period in the middle, which is expressly
considered not to be work.
The grievors' normal working schedule--involving the time from
11:30AM'on day 1 to 9:00AM on day 2--consists of three distinct periods:
a "shift" from 1 i:30AM to 1 I:00PM on day 1; a sleeping period from
ll:00PM to ?:00AM, which is not work; and a two-hour "shift" from
7:00AM to 9:00AM on day 2. This being the case, more than 50% of the
first "shift" is in the period from 5:00PM to midnight, and therefore the
grievors are entitled to shift premium for all the hours of this "shift",
pursuant to the second sentence of Article i1.1.1 of the collective
agreement.
We order that the grievors be compensated for the shift premium
they ought to have received from April 28, 1989. Our order is made
retroactive to this date because Article 27.2.1 of the collective agreement
provides that complaints shall be brought to a supervisor's attention within
7
twenty days of the grievor first becoming aware of the complaint. Here
the grievances were filed on May 18, 1989. We take it that the grievors
first became aware of their problem twenty days before this and we will
make our order effective twenty days before the filing of the grievances.
We will remain seized to deal with any matter arising out of this
order.
Done at London, Ontario, this 25th day of January , 1990.
~amu%1~, ViCe_ChairPerson
J. McManus, Member
H. Roberts, Member