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HomeMy WebLinkAbout1989-1500.Crowder & Holmgren.90-06-06~" ONT.4R,~O EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS DUNDAS STREET WEST, SUITE 2;O0, TORONTO, ONTA~.~. MS.~ ?Z~ TELEPHO.NE/TELEF~HONE: [416) 32~-~3EE ~UE ~uNDAS OUEST, BUREA~ 2t~, TOROntO (ONTARIO}, ~G ~ F~CE~fLE/T~L~COPIE : (4~6) 326-~396 1500/89 IN THE MATTER OF AN ARBITRATION Under CROWN EI~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIE~JANCE SETTLEMENT BOARD BETWEEN: OPSEU (Crowder/Holmgren) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer - and - BEFORE: M.R. Gorsky Vice-Chairperson M. Lyons Member F. Collict Member FOR THE A. Ryder GRIEVOR: Counsel - Ryder, Whitaker, Wright and Chapman Barristers & Solicitors FOR THE W. Emerson EMPLOYER: Employee Relations Advisor Ministry or Community & Social Services HEARING: April 12, 1990 DECISION The Grievors claim the option of receiving either payment or compensating leave in lieu of payment for "stand-by time" under Article 15 of the Collective AGreement. The facts are not in dispute and are as follows: i. Both Grievors are employed at the Rideau Correctional Centre in Smith Falls, Ontario, Crowder as a Recreation and Crafts Instructor and HolmGren as a Registered Nurse. 2. During the summer of 1989, both Grievors were assigned to work at the Grippen Lake camp which is operated by the Centre, the assignment being for a period of approximately five months, Crowder was temporarily assigned to the position of Acting Team Leader, which is a management classification, however, pursuant to Article 6.5, it was agreed that he would retain his rights and obligations under the Collective Agreement during the temporary assignment. Holmgren continued to function as a Registered Nurse. 3. Both Gr~evors were assigned to work every alternate week. When the Grievors were "on" they performed their regular duties during regular workinG hours, For the balance of the 24 hours in the day they were required to be on standby and available for work if called upon. 4. As a result, both Grievors accumulated a large number of stand-by hours. 5, Both Grievors, purporting to rely on the provisions of Article 13.5, requested the Employer to Grant them 2 compensating leave in lieu of pay for part of their stand-by hours. The Employer declined to consider the request on the grounds that Article 13.5 did not apply to stand-by hours. The issue, therefore, is whether an employee, who has an entitlement to receive stand-by payment pursuant to Article 15, is entitled, if a request is made to the Employer, to consideration for the receipt of compensating leave in lieu of the payment to which she is entitled. Article 15 is as follows: "ARTICLE 15 - STAND-BY TiME 15.1 'Stand-by time' means a period of time that is not a regular working period during which an employee keeps himself available for immediate recall to work. 15.2 Stand-by time shall be approved in writing and such approval shall be given prior to the time the employee is required to stand by except in circumstances beyond the Employer's control. 15.3 Where an employee is required to stand by for not more than the number of hours in his normal work day, he shall receive four (4) hours' pay at his basic hourly rate. 15.4 Where an employee is required to stand by for more than the number of hours in his normal work day, he shall receive payment of one-third (1/3) of the stand-by hours at one and one-half (1 1/2) times his basic hourly rate." 3 Article 13 is as follows: "ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this A~reement shall be one and on,-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 ~n 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. Falling 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 rate it was earned. Effective March 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." Articles 23.1 and 23.6 were also referred to in argument. Article 23 is as follows: "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 ' (1) 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." Both counsel referr, ed to the case of Mcgregor et al. (Wilson), 857/87, 858/87, 695/85. In the Mcgregor case the grievors claimed compensating leave in lieu of payment for work performed on call-back. Certain other articles which were relevant ~n that case are as follows: "ARTICLE 14 - 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 (4) hours pay at one and one-half (1 1/2) times his basic hourly rate. ARTICLE 16 - ON-CALL DUTY 16.1 'On-call,' duty means a period of time that is not a regular working period, overtime period, stand-by period, or call-back period, during which an employee is required to be reasonable available for recall to work. 16.2 On-call duty shall be approved prior to the time the employee is required to be on call. 16.3 Where an employee is required to be on call he shall receive twenty- five cents (25] per hour for ail hours such employee is assigned to on-call duty, ARTICLE 17 - MEAL ALLOWANCE 17,1,1 An employee who continues to work more than two (2) hours of overtime _ im~nediately following his scheduled hours of work without notification of the requirement to work such overtime, prior to the end of his previously scheduled shift~ shall be reimbursed for the cost of one (1) meal to four dollars ($4.00) except where free meals are provided or where the employee is being compensated for meals on some other basis. 17.1.2 A reasonable time with pay shall be allowed the employee for the meal break either at or adjacent to his work place. [rest of Article 17 omitted] In the McGrecor case: " ... counsel for the Ministry took the position that clause 13.5 does not apply to an Article 14 situation and in refusing to consider that provision the Ministry was correctly applying the Collective Agreement." (McGreqor at po 4.) As in this case, the Board in the Mcgregor case identified the issue as being: " ... strictly one of the interpretation of the Collective A~reement." (Ibid) At pp, 4-5 of the McGreqor case, the Union's argument was set out: "The union's basic argument is that call-back under Article 14 creates overtime within the definition of clause 13.2, i.e. it is 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. and that' therefore 13.5 applies. It is also recognized as overtime under Public Service Act Regulations 10(4) when it was in existence. In the union's view Article 13.2 defines overtime in the generic sense for inclusion within Article 13 not to create overtime within Article 13. There are many overtime situations within the collective agreement b~yond Article 13, meal allowance under Article 17.1.1. Special overtime situations are dealt outside Article 13. Another case is Article 19 dealing with Holiday Payment .... The Board set out .the Ministry's argument at p. 6 of the Mcgregor award: "The Mfnistry's principal argument is that Article 13.5 applies only to Article 13 and that Articles 13 and 14 are distinct and separate: Article 13 is overtime while ArticLe 14 is call-back. The wording of Article 16 maintains this distinction," Further at pp. 6 and 7 of the Mcgregor case, the Board elaborated upon the M~nistry's position: "Basically the Ministry.'s position is that the words 'shall be paid' are mandatory and if the parties had intended that the alternative of in lieu time had been intended it would specifically have been so provided in Article 14 or by reference to Article 13.5. By analogy Article 7 which sets out the compressed week model, specifically therein provides: Article 3.1 [of the Model Agreement set-out in Article 7] 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 Employee Benefits Agreement. Also Article 4 [of the said Model Agreement] deals with an election for holiday pay or in lieu time, And Article 23 of the collective agreement specifically Article 23.6 provides specifically for an optional compensating leave for travelling time credits, This is to be contrasted with on-call duty which in Article 16.3 provides only for payment. Article 23.6 was the subject of interpretation in Snider v. Ministry of Transportation and Communications (G.S.B. 509/83).. In .that particular case, Vice-Chairman Brandt at page 9, specifically rejected treating Articles 13.5 and 23,06 similarly specifically because they used different language~ namely 'at the rate ... earned' [13.5] and 'basic hourly rate' The basis for the Board'~ decision is found at pp, 8 and 9 of the McGregor case: "It is I believe important in understanding the issue to note the purpose of Article 14. What does it do? It guarantees a minimum amount of pay if called back to work. Namely'four hours at time and one half~ So if the employee leaves work at shift end at 4:00 p.m., is called back at 5:00 p,m., arrives back at his work place at 5:20 p.m. and does 10 minutes of repair work, he gets six hours pay. If he actually works, for example, six hours on call-back, he will get six hours times time and one-half - not because of Article 14 but under Article 13. Article 14 does not create the overtime. It only sets a minimum amount. It is all overtime under Article 13; Article 14 simply creates a minimu~n. 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. If an employee on call-back works six hours, he gets a wage of nine hours - or he can ~lect under 13,5 and then the management has to decide on pay or in-lieu time. It makes no sense to say that he cannot ask for that option if he works less than four hours on call-back. In my view he is in any event paid overtime under Article i3: and 14 only guarantees a minimum if he actually works less than four hours on the call- back." It is clear that the Board in the McGreqor case viewed Article 14 as being "functionally part of Article 13" and that it 9 viewed that Article as applying to an employee who performed some work on a call-back: "It makes no sense to say that he cannot ask for that option if he works less than four hours on call- back." The Board viewed work performed on a call-back in excess of four hours as being overtime paid under Article 13: "In my view he is in any event paid overtime under Article 13 .... " That is, call-back pay is directly provided for under Article 13 and all Article 14 does is to~ "[guarantee] a minimum if he actually works less than four hours on the call-back." Looking at the purpose of Article 14, it is not to guarantee a minimum amount of pay for work performed. I emphasize, that is how the Board in the Mcgregor case viewed Article 14. The Board in the Mcgregor case did not address the situation where no work was performed on the call-back, as where an employee was called back to work prior to the starting time of his next scheduled shift, and he. performed no work. In any event, the stand-by pay in Article 15 is provided for only under that Article, unlike the case of call-back pay (as described by the Board in the Mcgregor case), which exists" ... not because of Article 14 but under Article i3. Article 14 does not create the overtime period it only sets a minimum amount .... " In fact, this was acknowledged by the Union in the Mcgregor case at p. 7: "The Ministry and the union counsel disagreed on Article 17.' The Ministry argued that Article 17 is also outside Article 13 and there is no in-lieu time available, i,e. 13.5 does not apply to either Article 14 or Article 17. The union argues they both fall within Article 13. By ~ay of comparison, replied the union, neither Stand-By Time (Article 15) nor On-Call Duty (Article 16) are overtime .... It is Significant that the work referred' to in Article 17 can be viewed as overtime. The provisions of Article refer to the work as overtime and it is.work performed "immediately following his scheduled hours of work .... " It is also significant that on-call duty is similar to stand-by time that. unlike work performed on call-back, it would not represent overtime as defined in Article 13.2. It is also significant that the Board in the Mcgregor case was (at p. 9): "... satisfied that 13.5 does include overtime worked on a call-back." The Board was consistent in viewing the application of Article 13.5 as being based on the fact that there was "overtime worked" Also, while the Board cautioned against a slavish~adherence to rules of interpretation derived from the law of statutory interpretation, it, nevertheless, observed, at p. 9, that: "References to such concepts or methods of interpretation are not, however, invalid or inadmissible .... " It did not (at p. 9): "... look at the other articles in the collective agreement," because it found that : "(Articles 13 and 14 are entirely understandable together as physical and functional neighbours .... " (ibid~) I find that Articles 13 and 15 are not "functional neighbours", nor are they in the same proximity as Articles 13 and 14. Accordingly, and for all of the above reasons, the Grievance is denied. DATED AT To~-~to, On%ratio th~s 6th day of June, 1990. ~. ~. c, or~, Vice .~. ., / /')'" ' (Addendum attached) ./ ADDENDUM G.S.B. 1500/89 OPSEU (Crowder/Holmgren) and Ministry of Community and Social Services Although I concur with the decision in this matter, I am at a loss to understand the Employer's apparent reluctance to come to a mutually satisfactory agreement as to how Employees could be compensated for Stand-By Time. It seems to me that if they would agree to a provision similar to Article 13.5 of the Collective Agreement, then both parties could benefit from'greater flexibility and goodwill. Dated at Toronto this 29th day of May, I990. M.fchaet Lyons,i.'~ember