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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