HomeMy WebLinkAbout1989-1192.Union.90-08-23 ONTARIO EMP~.OY£S DE LA COU,qONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
SEITLEMENT R~GLEMENT
BOARD DES GRIEFS
DUNOAS STREET WEST, TORONTO. ONTARtO. MSG 17-8- SUITE 2~O0 TE£EPHONE/T~L~PHONE
RuE DUNDAS OUES T, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (416J 598-O6~,~
I192/89
IN TEE MATTER OF AN ARBITRATION
Under
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance}
Grievor
- and -
The Crown in Right of ontario
(Management Board of Cabineti
Employer
- and -
G. Simmons Vice-Chairperson
J. C. Lanie! Member
A. G. Stapieton Member
FOR THE I. Roland
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors ..
FOR THE W. Kenny
EMPLOYER Counsel
Hicks Morley Hamilton
Stewart Storie
Barristers & Solicitors
HEARING: June 2lr 1990.
2
The Union grieves a change in the practice in applying
Article 23 "Time Credits While Travelling" insofar as Schedule 6
employees are concerned. Schedule 6 employees are those employees
who perform various forms of work on which it is difficult to put
firm time strictures because of the nature of the work they
perform. There are various kinds of schedule employees and these
are addressed in Article 7 of the Collective Agreement. Article 7
reads as follows:
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 this
schedule shall be forty (40) hours per week and
eight (S) hours per day.
7.3 SCHEDULE ~
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.
7.5 Where the Employer adjusts the number of hours per
week on a schedule, the employee's weekly salary
based on his basic hourly rate shall be adjusted
accordingly. The adjustment will be discussed with
the Union prior to such adjustment being made.
7.6 Where the Employer intends to transfer employees or
an employee from one schedule to another schedule,
the Employer will discuss the transfer with the
Union prior to such transfer. When the transfer
occurs, the employee's weekly salary based on his
basic hourly rate shall be adjusted accordingly.
7.7 It Ks understood that other arrangements regarding
hours of work and overtime may be entered into
between the parties on a local or ministry level
with respect to variable work days or variable work
weeks. The model agreement with respect to
compressed work week arrangements is'set out below:
MODEL AGREEMENT WITH RESPECT TO COMPRESSED WORK
WEEK ARRANGEMENTS
MEMORANDUM OF AGREEMENT
BETWEEN: THE MINISTRY OF
AND: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(and its local )
This compressed work-week arrangement is made in
accordance with Article 35 (Local and Ministry
Negotiations) and Article 7 (Hours of Work) of the
Collective Agreement on Working Conditions and Employee
Benefits, between the Ontario Public Service Employees
Union and the Crown in Right of Ontario, represented by
Management Board of Cabinet.
Unless otherwise specified in 'this Agreement, all
articles of the Working conditions and Employee Benefits
Agreement apply to employees covered by this Agreement.
Article 1 - Work Unit and Employees Covered
Detailed and specific description of work unit and.
employees covered.
Article 2 - Hours of Work
2.1 Detailed description of the regular hours of work
with an attached schedule where appropriate.
2.2 Article 10.2 of the Working Conditions and Employee
Benefits Agreement shall not apply to employees
covered by this compressed work week agreement.
4
Article 3 - Overtime
3.1 Authorized periods of work in excess of the regular
working periods specified in Article 2.1 or on
scheduled day(s) off will be compensated for in
accordance with Article 13 (Overtime) of the Working
Conditions and Employae Benefits Agreement.
Article 4 - Holiday Payment
4.1 Where an employee works on a holiday specified in
Article 48 (Holidays) and opts for compensating
leave under Article 19.2, he may elect, at that
time, to receive, in addition to his entitlement
under 19.2, further leave equal to the difference
between the number of hours'in the employee's normal
work day and his entitlement under 19.2. Where an
employee makes this election, there shall be
deducted from the employee's pay for time worked
under 19.1, an amount equal to the number of
additional hours of leave granted under this
article.
(Additional leave to be determined by length of
regular work day. For an employee on Schedule 4,
whose regular work day is 10 hours and who works 10
hours on a holiday:'
Entitlement under 19.1 10 hr. @ double time =
20 hr. (straight time)
Entitlement under 19.2 = 8 hr.
Where an employee elects additional leave under this
article ~
Entitlement under 19.2 = 8 hr.
Additional leave under this article
(10 hr. - 8 hr.) = 2 hr.
Reduced entitlement under 19.1 = 18 hr.)
Article 5 - Short Term Sickness Plan and Vacation Credits
5.1 Short Term Sickness - Employees shall be entitled
to'full pay for the first (43-1/2 or 48) hours of
absence due to sickness or injury and seventy-five
percent (75%) for the next (899 or 992) hours of
absence due to sickness or injury. Employees may
exercise their option· under section 52.6 of
Article 52 of the Working Conditions and Employee
Benefits Agreement by deducting one-quarte~ (1/4)
of an accumulated credit for each (7-1/4 or 8) hours
of absence.
5.2 Vacation Credits - A deduction from an employee's
vacation credits will. be made for each day of
approved vacation leave-of-absence as follows:
(Prorating determined by length of workday. For an
employee on Schedule 4, off on a ten (10) hour day,
deduct 10/8 x 1 credit ~ 1.25 credits. For an
employee on Schedule 4, off on a twelve (12) hour
day, deduct 12/8 x 1 credit - 1.5 credits.)
A partial day's absence will be prorated on the same
formula.
Article 6 - Workers' Compensation
6.1 For the purposes of section 54.2 of Article 54 of
the Working Conditions and Employee Benefits
Agreement "sixty-five (65) working days" shall be
deemed to be (471-1/4 or 520) hours.
Article 7 - Training Assignments
7.1 When an employee covered by ~his compressed work
week agreement attends a training program, the
Employer may change the employee's scheduled hours
of work to the greater .of:
(i) 7-1/4 or 8 hours per day, as applicable, or
'(ii) the actual number of hours spent receiving
training,
for each day that the employee participates in the~-
training program.
7.2.1 Where the Change prescribed in 7.1 results in
fewer or more hours than the employee was
previously scheduled to work on the day(s) in
question, the "extra" or '~deficit" hours shall
be reduced to zero within 60 working days of the
completion of the training program, without any
loss of pay by the employee or'overtime payments
by the Employer, as follows:
(i) the employee shall be required to work a
corresponding number of hours to make up
for any deficit hours; or
(ii) the employee shall be scheduled off duty
for a corresponding number of hours to
offset any extra hours.
7.2.2 Where there is mutual agreement, an employee may
receive pay at his basic hourly rate for extra
hours in lieu of being scheduled off duty in
accordance with 7.2.1 (ii).
7.2.3 Where an employee's extra hours have not been
reduced to zero within 60 working days in
accordance with 7.2.1, any such hours remaining
to the employee's credit shall be paid at the
employee's basic hourly rate.
Article 8 - Term
8.1 This Agreement shall be ( x months, until either
Dartv notifies the other of its desire to
rene~otiate~ etc.) and will be' effective from the
(day) of (month) , 19~ to the
(day) of (month) , 19 __.
8.2 Either party may, on written notice of (days,
weeks) to the other party, terminate this
Agreement.
DATED THIS DAY OF , 19
For The Ontario Public For the Ministry of
Service Employees Union
Article 13 addresses the issue of "overtime" and that article reads
as follows:
ARTICLE 13 - OVERTIME
13.1 The overtime rate for the purposes of this
Agreement shall 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 atLthe 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 rate 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 in 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 calculated
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 23 is also relevant and it reads as follews:
ARTICLE 23 - TIME CREDITS WHILE TRAVELLING
23.1 Employees shall be credited with all time spent
in travelling outside of working hours when
authorized by the ministry.
23.2 When travel is by public carrier, time will be
credited from one (1) hour before the scheduled
time of departure of the carrier until one
hour after the actual arrival of the carrier at
the destination.
23.3 When travel is by automobile and the employee
travels directly from his home or place of
employment, time will be credited from the
assigned hour of departure until he reaches his
destination and from the assigned hour of
departure from the destination until he reaches
his home or place of employment.
23.4 When sleeping accommodation is provided, the
hours between eleven (11:00) p.m. and the regular
starting time of the employee shall not be
credited.
23.5 When an employee is required to travel on his
regular day off or a holiday listed in Article 48
(Holidays), he shall be credited with a minimum
of four (4) hours.
23.6 All travelling time shall be paid at the
employee's basic hourly rate or, where mutually
agreed, by compensating leave.
It is to be noted that Schedule 6 employees under Article 13 are
not entitled to receive overtime pay. Article 13.7.1 entitles them
to receive equivalent time off when they are required to work on
a day off. There is one exception to being compensated at overtime
rates as set out in Article 13.7.2 and this involves those
employees who are assigned to forest fire fighting or related
duties. Article 23.6 sets out how employees are to be compensated
when they are credited with time spent in travelling outside of
9
working hours when authorized by the Ministry and that is at the
employee's basic hourly rate or, where mutually agreed, by
compensating leave. The issue before us as to whether a~Schedule 6
employee is entitled to travel credits under Article 23 first arose
in O.P.S.E.U. (Fawcett) and Crown in RiGht of Ontario ~Ministry of
Transportation ~ Communicationsl, File Number 275/82 when an
employee who had been previously a Schedule 4 employee was
reclassified and transferred to Schedule 6. Prior to this
transfer, he had been entitled to travel pay and overtime pay but
this' ceased, following the transfer. We note in the majority
opinion of that decision that he received a salary increase at.the
time of the transfer. When one looks to the dissenting opinion
there appears the comment, "He received a substantial increase in
pay and at the same time received an annual salary rather than an
hourly rate". The Majority in the Fawcett decision determined that
Article 23.'1 applied to Schedule 6 employees and that his working
hours for the purposes of that article are a minimum of seven and.
one-quarter (7-1/4) hours per day.
The Board in the instant proceeding was not presented with any
evidence counsel electing instead to argue the poiDt of entitlement
to compensation or compensating leave as a general matter.
Therefore, we are not aware of the practice that has been followed
with respect to compensating Schedule 6 employees when and if they
fall within Article 23.1. However, we were presented'with a recent
decision O.P.S.E.U'. (T. Burrows) and the Crown in Right of Ontario
(M~nistry of Labour), File Number 0379/88, a decision dated May 30,
10
1989 wherein the issue in that decision was primarily one of
retroactivity. Burrows involved a Schedule 6 employee who claimed
travel time incurred outside working hours pursuant to Article 23.
It was conceded in Burrows that the grievor was entitled to travel
time pursuant to Fawcett and the only issue was retroactivity.
Another decision of this Board, O.P.S.E.U. (Pin~ue et all and
the Crown in Right of Ontario CMinistrv of the Environment), File
Number 1355/87, 1565/87, 1588/87, 1589/87, 1590/87 which was
released on November 24, 1988, involved five grievances by
Schedule A employees who likewise do not receive overtime but as
Article 7.4 states, they are compensated on an averaging hours of
work basis as set o6t in Appendix 3 to the Collective Agreement.
Basically, Schedule A of Appendix 3 provides for the number of
hours of work per week to be computed as a weekly average over one.
year. The grievors in that particular case sought to have travel
time compensable under Article 23 and not be a part of the
averaging provisions under Appendix 3. The Board stated at page 5
and 6 as follows:
Although counsel for the Grievors has put
their case as forcefully as possible, we are
of the view that the weight of decisions by
this Board is clearly contrary to their
position. The only decision which could be
cited in their favour was OPSEU (Fawcett) and
Ministry of TransDortation and Communications
G.S.B. 275/82. However, that grievance
involved a Schedule 6 employee and the Board
observed:
It is important to note that this is
not a case in which the issue is
whether an employee, who is eligible
for both, is entitled to pay at the
overtime rate or compensating leave
under Article 13, or to credits for
time spent in travelling .under
Article 23 .... the Grievor is not
eligible for overtime pay or
compehsating leave in any
circumstances, and is eligible for
equivalent time off only, for work
performed on a day off. (p.9)
It.is true that the Board also stated that:
We see no authority in the
collective agreement for the .~
charactsrization of time spent by
the Grievor in travelling as
overtime work. ~(p.9)
However, numerous subsequent decisions of the
Board clearly depart from that view
The Stahl decision which was cited at the
~.outset, refers to many of these decisions and
isolates the two elements which distinguish
'travelling time' from 'overtime'. These are:
'...travel as a necessary part of
the job, and the employee's
responsibility for the Ministry's
v~hicle.' (p.6)
There can be little doubt that these elements
are present in the facts before us.
The Board in the Pingue case refused to follow the Fawcett case
completely. Instead., it preferred to follow a line of cases that
differentiated between travel outside of working hours tha~ is
responsibly free and travel outside of working hours that is some
way related to work. In the latter case, Boards have held that it
is "work" and therefore compensable by the overtime provisions in
Article 13. In the former situation, however, when the travelling
is outside~ of working hours, authorized by the Ministry, and is
responsibility free such as being a passenger in a vehicle owned
12
by the Ministry and not responsible for it, then Article 23 would
apply and travel time credits would be applicable. See O.P.S.E.U.
(Robert W. Anwyll} and the Crown in Right of Ontario (Ministry of
Government Services], file 406/83; O,P.S.E.U. CPileggi) and the
grown in Right of Ontario (Ministry of Transportation &
Communications), file 992/86 and the cases cited therein.
On June 22, 1989, the Staff Relations Branch of the Human
Resources Secretariat in the Management Board of Cabinet issued a
memorandum to all human resources services directors and all
directors, human resources branches concerning the impact of the
Pingue case which reads in part as follows (Exhibit 3):
The Pingue case involved employees whose' hours
of work were subject to averaging in accordance
with Appendix 3 of the collective aqreement.
The Board found that, because travel was an
inherent part of the grievors' jobs, travel
undertaken by the grievors outside of their
'normal' hours of work constituted work and not
travel; as a result, time spent travelling was
subject to averaging, and did not attract
compensation under Article 23 (Time Credits
While Travelling). It is our view that this
principle applies equally to schedule 6
employees. In those cases Where travel is an
inherent part of a schedule 6 employee's work
(and that will be a question of fact in each
case), then any work-related travel undertaken
by that employee outside of his or her 'normal'
working hours is work, and does not attract any
form of compensation. The exception to this
is the situation where a schedule 6 employee
travels outside the course of his normal duties
- for instance, where he or she must travel to
attend an employment-related course, etc. In
those circumstances, ministries are advised to
continue to compensate employees in accordance
with the principles set out in the Fawcett
award (#275/82).
The Pin~ue award, and earlier awards cited in
that decision also affect schedule 6 employees
for whom travel is not an inherent part of the
work they do. Where travel is not
responsibility-free for these employees (for
instance,~ because they have been assigned
responsibility for driving a Ministry vehicle),
those employees are performing work and
Article 23 has no application. Where a
schedule 6 employee is merely a passenger in
a Ministry vehicle, or travels by public
carrier, he or she should continue to be
compensated for travel outside of 'normal'
working hours in accordance with Article 23
and the Fawcett award.
The Human Resources Services Branch in the Ministry of Government
Services issued its own memorandum dated August 16, 1989, to
various individuals in the Ministry of Government Services and it
too addressed this issue as follows (Exhibit 2):
The travel time issue focuses on bargaining
unit employees whose hours of work are in
Schedule A (.averaging of hours). The Grievance
Settlement Board found that where travel is an
inherent part of the employee's job, travel
outside of normal working hours is considered
work,~ not travel. Therefore, time spent
travelling is included in the number of hours
worked but is not compensated.under Article 23,
Time Credits While Travelling.
The principle has a different effect when
aDpli~d to Schedule 6 bargaining unit employees
(employees working a minimum of 36-1/4 hours
per week). Where travel is an inherent part
of the job, work-related travel outside of
normal working hours is considered work and
therefore is not compensated. Where travel is
outside the course of the employee's normal
duties (ie: travelling to a work-related
course), compensation under Article 23 (Time
Credits While Travelling).is necessary.
In terms of Schedule 6 '~employees for whom
travel is not an inherent part of their work,
if the travel is responsibility-free (ie:
employee is a passenger in a Ministry vehicle),
compensation under Article 23 is required.
However, if the travel is not responsibility-
free (ie: the empToyee is assigned to drive
the Ministry vehicle), the employee would be
performing work and would not be entitled to
travel time credits.
Please consult with your Human Resources
Consultant prior to determining compensation
in these circumstances.
It is recognized that these interpretations by
the Grievance Settlement Board do not reflect
the Ministry's current practice. Therefore,
it is essential that this information is
communicated to your managers so that changes
to practices c~n be implemented immediately.
A review of these procedures for management
employees will be undertaken in the near
future.
Should you have any questions in the meantime,
please contact your Human Resources Consultant.
The reason for reproducing Exhibit 2 is due to the fact that it was
the document that came to the attention of the Union and was the
one that the Union relies on. However,.it is a~reed that Exhibit 3
is the seminal document and that both are therefore relevant.
As a consequence of the bssuance of Exhibit 2, the Union filed
the following grievance:
The Union grieves the violation of Article 23
of the Collective Agreement in that it has come
to our attention that the Human Resources
Secretariat has directed Ministries to
discontinue the practice of paying Schedule 6
employees travel time credits for travel
outside normal working hours in those cases
where travel is an inherent part of the
employee's job.
We request the Secretariat to publish forthwith
a notice to all Ministries cancelling its
directive to the above effect.
In order to avoid needless grievances by
individual Schedule 6 employees, we also
request the Secretariat to direct individual
Ministries to maintain travel records for all
Schedule 6 employees, even where t~avel is an
inherent part of the job, and to maintain funds
in trust· for all claims that may arise from
this alleged violation of Article 23 in the
event that this matter is eventually referred
to the GSB and decided in the Union's favour.
Counsel for the Union pointed out that only Fawcett and
Burrows address the issue of Schedule 6 employees. All of the
other cases are concerned with other schedule employees. The
competition in the other cases (except Pinque) is between overtime
on the one hand and travel time on the other. That is, they
involve a contest between Article 13 and'Article 23. The focus in
those cases is on what pay entitlements is there when travelling
outside one's regular working hours.' In those cases, employees
sought overtime pay versus travel time because overtime pay is
calculated at one and one-half times the regular rate of pay. The
Board developed the concept in those cases that if the employee·
travelling outside regular hours of work on the authority of the
Ministry is responsibility free, then the situation falls within
Article 23 which entitles the employee to travel time credits. But
if the employee has responsibiiities such as being responsible for
the vehicle or some other responsibility related to work in
addition to travelling, then Article 13 was applicable. However,
as stated earlier, the Union claims that because Schedule 6
employees are not entitled to· overtime pay (except in Article
13.7~2) they. should therefore be entitled to time credits when~
16
travelling whether they have responsibilities or are responsibility
free. The Pingue case while involving Schedule A employees and not
Schedule 6 employees (both schedules not being entitled to
overtime) applied the reasoning of the long line of cases that has
been cited above. It was as a result of Pincue together with the
Fawcett decision that the Employer issued the memoranda supra. We
are asked to issue a declaration as to whether or not the memoranda
are in keeping with the Collective Agreement and prior
jurisprudence of this Board.
In resolving this issue we are of the view that it is
paramount to look at the Collective Agreement as a whole.
-Article 13.2 defines "overtime" to mean an authorized period of
work in addition to the regular working period, whereas Article 23
refers to authorized travelling time outside of working hours.
By having included both Articles 13 and 23 in the Collective
Agreement it is trite that the parties must have contemplated that
a different interpretation would be applied to them.
The line of cases other than Fawcett supra have interpreted
Articles 13 and 23 to mean that if an employeer is carrying out
duties or is incurring responsibilities for the employer out of
normal or regular hours of work then overtime is payable pursuant
to Articles 7 and 13. However, when an employee is authorized to
travel outside of working hours but is responsibility free than
Article 23 applies.
In the instant situation there is no competition between
Articles 13 and 23 because Schedule 6 employees do not receive
17
overtime so we are requested to declare that Article 23 applies at.
all times whether the travel is work related or Ks responsibility
free. We are unable to make such a declaration.
In our opinion the interpretation that has been placed on
Article 23 by previous Board decisions (other than Fawcett) are to
be followed. We cannot place a different interpretation on
Article 23 simply because Article 13 is inapplicable to Schedule 6
employees. We must assume that'the parties had justifiable reasons'
for excluding Schedule 6 employees from Article 13 (except Article
13.7.2). Moreover, we agree with respect to the interpretations
placed on Articles 13 'and 23 by the previous decisions (other than
Fawcett). It is to be remembered Burrows wasnot concerned with
this issue. 'In our respectful opinion, therefore, the memor'andum
or statement-of the Human Resources Secretariat is a proper
interpretation on the C611ective Agreement and the jurisprudence
of this Board and we declare therefore that ~here has been no
violation of the Collective Agreement by the Human Resources
Secretariat in issuing its memorandum of June 22, 1989 nor is the
memorandum dated August' 't6, 1989 a violation of the Collective
Agreement or the jurisprudence of this Board. Accordingly, the
grievance is dismissed.
18
DATED at Kingston, Ontario this 23rd. day of August 1990.
C. GordOn Simmons
Chairperson "
Jean Claude Laniel
Member
Arne Stapleton
Member