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HomeMy WebLinkAbout1990-0160.Graham et al.91-04-02 l ' r"...... ~, -. I . , 'I ~:' \ ,", ,. "ON7 ARlO EMPl OYts DE' lA COURONNf I' '.. ',' .. .~: CROWN EMPLOYEES Of L 'ONTARIO ~ . \~~: " ii~¡, , , ",. '/,'. GRIEVANCE COMMISSION DE ~-~ -- 1111 SETTLEMENT: RÈGLEMENT _. .._- BOARD DES GRIEFS ~:_ ~ __. 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARro. MSG ¡Z8., " TElEPHONE/TÉLËPHONE: (416) 326-13, 180, RUE DUNDAS OLlEST, BUREAU 2100, TORONTO loNT,MIIO). M5G îZ8 FAcsIMILÊm~.LÉCOPIE· (4161326-/3 . . ot- l .. 160/90, 161/90, 162/90, 163/90, 164/90, 165/90, 219/90, 562/90, 563/90,· 677/90, 953/90, 962/90,. 1021/90, 102~/.90,... 1047/90, 1048/90, 1469/9G, 1470/90, 1471/90, 1645/90, 1721/90, 1722/90, 1901/90, 2026/90. -. - ~ ~ J ' IN THE HATTER OF AN ARBITRATION - ... ,-" Under '. '. - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ·ACT., , Betore. THE GRISVANCB SETTLEMENT BOARD .BETWEEN OPSEU (Graham et all Grievor - and - . . The Crown in Right of ontario .., (Ministry of Labour) h~.. -. ., Employer BEPOR~: '. R. Kennedy Vice-Chairperson . . " E.' seymour . 0 Member M. O'Toole Member . FOR. THE " P. Chapman o GRIEVOR Counsel . ~. Ryder, Whitaker, Wright & Chapman - Barristers «Solicitors , , - , ~... - ':.,. FOR THB W. Kenny EMPLOYER Counsel Hicks, Morley '0 Hamilton, stewart & storie Barristers & SOlicitors HEARING: --November 14, 1990 January 24, 1991 0- - · - 2 - INTERIM AWARD The Grievors are employed as Occupational Health and Safety Inspectors and are Schedule 6 Employees pursuant to the provisions of the collective agreement. In a prior decision of this Board issued November 6, 1989, namely Bennett 276/88 (Wilson), this same group of employees successfully argued that due to the state of readiness to return to work that they were required to maintain when not at work, they were entitled to receive on-call duty pay as provided for in Article 16 of the collective-agreement. The effect of the Bennett decision was that all Occupational Health and Safety Inspectors were found to be entitled to the on-call payment for all hours that they were not regularly at work. In. response to the Bennett decision, the Employer implemented a formal system of on-call duty in each of its offices, requiring specific Inspectors to be av'ailable on a rotational basis. Where possible, the syste~ was to be implemented on a voluntary basis, but if insufficient volunteers were available, on-call duty was to be mandatory and assigned on a rotational basis. The group of grievances that are presently before this Board arose out of the Employer's Hamilton) London, Windsor and Toronto West Offices, and the Grievors claim that the system of duty implemented by the Employer constitutes stand·by time and attracts the rate of remuneration provided for in Article 15, rather than being an on-call duty attracting the lower rate of remuneration provided for in Article 16. .- . " - 3 :- Based on the opening statements.of. counsel, itw~ apparent that in addition to the written statements issued by the Employer in response to the Bennett award, . . we would be hearing oral evidence from both sides dealing with what employees '.. . . . . l were told with respect to the new system, which evidence might well vary from ) ~ office to office. It would appear that individuals on both sides. may have had d~fferent expectations and instructions thEm others. _ In ad,dition, the Employer indicated that it would be arguing that the ~ol1ective agree,ment and prior decisions ., of this Board recognize a distinction between Schedule 6 Employees and all other . . employees with respect to various forms of additional payment provided in the . " . . . . 1 collective agreement. The Employer's counsel indicated he would be arguing that , , 'priordecisions of this Board clearly established that Schedule 6 Employees have no entitlement to overtime, travel,allowance, call-back pay and holiday pa)r, and that .. ...,." .' the'principles argued in those ·cases are equally'applicable to disentitle Schedule 6 . I . . Employees from OI~-call duty and stand-by time. It :w~ the Employer's :position that . . this panel. of the Board should not follow ·Bennett as it is in conflict with a long line , - of earlier decisions of this Board. In view of the fact that it appeared the evidence . withre.spect to the Employer's new system coul~ be lengthy and could vary from . office to office, it was agreed by counsel that the threshold issue of whether or not , ' the Grievors as Schedule 6 Employees had any possible entitlement under Articles 15 and 16 be determined as a preliminary matter. . . 4 ~ The applicable provisions of the collective agreement provide as follows: ARTICLE 7 . HOURS OF WORK 7.1 SCHEDULE 3 and 3.7 . The nonnal 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~si:x and one·quarter (36 1/4) hours per week. ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this Agreement shall be one and one·half (11/2) times the employee~s basic hourly rate. 13.2 In this Article, lIovertimell 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 (7 114) 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. , . - 5 - 13.4 Employees in $chedules 3 and 4 who perform authorized work in excess of severt ,and one·è¡uarter (7 1/4) hours or eight (8) hours as applicable. shall receive compensating leave of one and one- half (1112) hours for each hour of overtime worked, at a time mutually á~eed upon. .Failing agreement, the ministry shall reasonably dete~ine.the ti~e of the'compensating leave. 13.5 Where there is ,a mutual agreement, employees may receive compensating leave in lieu' of pay at the overtiine rate or may receive pay at~ the overtime rate in lieu of compensating leave. , . . 13.6· Compensating leave accumµlated 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 agreemen~ a~ the local or ministry level. 13.7.1 Emplòyées who are in classifications assigned to Schedule 6 and who are required.to wOJ:k 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 fl1'e fighting or related duties. shall be . paid one and one-half (11/2) 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 2~hour period. ARTICLE 14 - CALL BACK . 14.1 An employee who leaves his place of w~rk and is subsequently called back to work prior to t~e' starting time of his next scheduled shift shall be paid a minimum of four (4) hours' pay at one and one-half (1112) times his basic hourly rate. , ' . ARTICLE 15 - STAND-BY TIME 15.1 "Stand-by timeH means a period of time that is riot Ii regular working period during which an employee keeps himself available for immediate recall to work. - 6 - 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 bis normal work da,y, 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 (11/2) 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 reasonably . available for recall to work. 16.2 On-call duty shall be approved prior to tbe 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 all hours such employee is ¡ assigned to on-call duty. ARTICLE 19 - HOLIDAY PAYMENT I 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 only evidence provided with respect to the preliminary issue was given by one of the Grievorst Ron Elliott, who has been employed in the London Office for four years. He stated that his nonnal working hours were 8:30 a.m. to 4:30 p.m., , I . - 7 - . , , , . .~ . Monday to Friday) with a 45-minute lunch break. He frequently works outside òf those hours as the exigencies of plant inspections rriayrequire, and it is impossible to predict how long he will actually be working on any given day. If he is . . , . investigating a problem at a factory, he has to continue until the investigation is completed. He may also be called back after 4:30 p.rn.to deal with emergencies. . He stateq that from time to time he did receive travel time if he had to be at a plant or at court prior to 8:30 a.m. and that his Manager in his discretion did give him lieu i . -, I time on occasion to compensate for time sp~nt beyond the end of a normal day or on . . -, ~" ". . .. a day off When originally hired he was told that he might be called out at any time, and much of his time is spent away from the office on plant visits. . Hence, travelling is an inherent part of his job. It was argued for the Employer that Schedule 6 Employees are completely different from other employees under thé collective agreement, and that this is . . demonstrated by Article 7. Most employees have normal hours specified on a daily .. and weekly basis, whereas Schedule 6 Employees are simply given a minimum number of a hours per week. . No maximum is set .on either a daily or weekly basis, and this is a reflection of the fact that Schedule 6 Employees cannot predict exactly " . when they will have to work. For the same reason, the salary schedules do not specify a basic hourly rate for Schedule 6 Employees in the same manner as they do I . \ . - 8 - for other employees. It is undisputed that Schedule 6 Employees are not entitled to be paid overtime, and Mr. Kenny argued that this is because they had no regular working period, and the salary level is intended to compensate them for all their working activity. Similarly, they are not entitled to other premiums normally paid under the collective agreement unless some specific provision is made for them. Mr. Kenny then reviewed a number of prior decisions of this Board denying various forms of premium compensation to Schedule 6 Employees. In Whitehead 198/82 (Roberts) it is stated at p. 5 and 6 that for Schedule 6 Employees there is no maximum hours per week, and employees are not entitled to overtime, either in the form of monetary compensation or compensatory time off. Reference was made to Krete 1055/88 (Verity) and ßaker/Elliott 90/89 (Kirkwood) denying Schedule 6 Employees any entitlement to call-back pay under Article 14 on the basis that call- back is simply another form of overtime, and Schedule 6 Employees not being I entitlèd to overtime and not having what could be referred to as a next scheduled , I shift within the language of the Article could not be entitled to same. Mr. Kenny I then reviewed the various decisions of the Board dealing with the entitlement to I travel time and pointed out that with one exception, these decisions deny Schedule 6 and equivalent employees entitlement to travel time credits. Reference was made to Pinaue 1355/87 (Ratushny), -OPSEU Union Gdevance 1192/89 (Simmons), Elliott 1544/89 (Dissanayake) and Wright 0249/89 (Fisher). Mr. Kenny did point out that ; . \ . - 9 - in Fawc~tt 275/B2(Draper) it had been held that Schedule 6 'Employees were - , entitled to travelling time' credits, but he argued that the Fawcett 'case was . , incorrectly decided and should 'not be followed. In Mr. Kenny's view it had been specificaily rejected in each of t~e other cases to which he referred dealing ~ith the same issue, and he argued that the' Fawcett reasoning failed to get around the point . . ( " that Schedule 6 Employees had no .ordinary working hours, such that they could he found to be travelling 1I0utside of working hours" so· as to bring themselves within the entitlement of Article 23.. Mr. Kenny further argued that the Fawcett case did not adequately address the fact that Schedule 6 Employees had no basic hourly rate; , , which was another requirement for the application òf Article 23. With specific reference to the language of Article 15, Mr. Kenny argued that for a Schedule 6 Employee any period is ~ regular working period and such employee has no basic hourly rate. Therefore, the language cannot be applied to a Schedule 6 Employee. Similarly, Articles 15.3 and 15.4 are unworkable for Schedule 6 Employees because it is impossible to determine the number of hours in thEÜr normal work day. Article 16 again could not have been intended to apply to Schedule 6 Employees, since for them there is no period that is not a regular working period. With specific reference to the Bennett decision, Mr. Kenny argued that the case simply assumed without deciding that the employees involved èould in , I 1 . . 10 - appropriate circumstances be entitled to stand-by and on~call remuneration and that I on its language the decision is clearly directed only at an analysis of whether or not I the Grievors were required to be reasonably available for return to work. He pointed out that there was no discussion in the Bennett case of the basic issue of entitlement or of the decisions that had been referred to before this panel of the I Board. He argued, therefore, that Bennett was simply not on point for our purposes and its authority was limited to being a finding that those employees were required to be reasonably available for return to work. The case did not address the issue of whether Schedule 6 Employees who were required to be reasonably available to return to work had any entitlement to on-call remuneration. Mr. Kenny pointed out that, based on evidence we had heard, it did appear that the Employer voluntarily on occasion made extra payments of remuneration to employees or provided lieu time which indicated that the Employer was not without sympathy in situations where the Schedule 6 status might produce inequities. Such paymentsJ howeverJ were not required by. the collective agreement and could not be considered to vest any right in employees to such entitlement. Mr. Kenny characterized the on-call system and payment subsequent to Bennett as again a voluntary process on the part of the Employer and not one that could be enforced before the Grievance Settlement Board. Mr. Kenny indicated that Bennett had not been taken to judicial review because that panel of the Board did, in fact, decide the issue and the case that was I I ? . . . 11 - " . ~ .. put before it, and that if the Employer hàd gone" to the Divisional Court on the ba~ic '\ ~ r_ . ..:..._ issue of entitlement, the Court would have said that if that issue was to have been decided, it should, have been put to the Bennett panel. For the Union, it was argued that the collective agreement does no't establish any sort of separate regime for Schedule 6 Employees, and they are entitled' to the ,. benefits available under any Article of the collective agi-eement to the same extent a~ any other employee. There is no discussion in the collective agree,ment defining just what a Schedule 6 Employee is supposed to be, and Ms. Chapman argued that the , Employer arguments as to their special status were In a sense totally speculative. Within the scheme of the collective agreement in situations where particular employees are to be excluded from benefits, the parties explicitly' say so. They have . not done so in the Articles with which we are concerned on this arbitration. It was the Union position that it was necessary to look at the specific Article in question, and if the employee met the criteria set out in the Article, the employee was entitled I . to the benefit. The cáses and the 'collective agreement do not support a general rule òf exclusion of Schedule 6 employees from all types of additional remuneration as " urged by the Employer. It was argued that all of the cases relied upon by the Employer denied entitlement to a benefit, not on any general prinCiple of exclusion, I , . - 12 - but rather because the employees involved had not brought themselves within the language of entitlement in the Article concerned. Ms. Chapman referred to the Fawcett decision as standing for the proposition that the correct question for the Board is whether the Article applies to. the employee concerned based on the criteria set out in the Article and not on any exclusionary principle of Schedule 6 Employees. Fawcett did define the normal hours of work for Schedule 6 Employees as being what the Employer tacitly accepted as normal and had no problem finding an hourly rate of pay by dividing the weekly rate by the number of hours specified in Article 7. The only part of Fawcett that was rejected in subsequent decisions was the rmding that travel time did not constitute work time, but the remaining and more important aspects of Fawcett continue uncontradicted. With specific reference to the language of Articles 15 and 16, Ms. Chapman noted that the operative words were "time that is not a regular working period", which is not the equivalent of such terms as "normal hours of work"and "next scheduled shift" that have been the factors in many of the cases disentitling Schedule 6 Employees to the particular benefit. She argued that there was, in fact, a regular working period based on the practice followed in the various offices, and .~...... It' -¡'1 - 13 - " . the Articles are meant to apply to periods outside of that regular working period. She noted that in the documents issued by the Employer subsequent to the Bennett decision there were a number of referencøs to normal working hours and rtoutside the regular working period". As was done'in Fawcett, she urged the Board to take a . - \ ,." ~ common sense view of what are normal, usual or regular working periods. Similarl)) with respect to basic hourly rate, there is no question they are paid a weekly salary and that there exists under Article 7 an anticipated level of hours worked in each week, arid from that it is easy to detennine a basic hourly rate. She . ! L.&· ... . - . noted that in Article 13.7.2 such a procedure was specified for Schedule 6 Employees involved in fighting forest fll'es. As to the actual nature of payments' made under Articles 15 and 16, Ms. Chapman argued that they were not really alternate forms of ..' "".... . overtime but rather are' compensation for the inconvenience and dislocation of having to keep oneself ready and available for work. Ms. Chapman argued that the Emp]oy~r's arguments and cases relied upon were limited to situations of work and the principle that the weekly salary for a Schedule 6 Employee covered all forms of' payment Kor work. Since on-ca11 and stand-by remuneration is not a payment for work, those arguments and eåses are not applicable. _ _ " .. i. I With respect to Bennett, the Union position was that it is à clear and specific finding of entitlement on the part of the employees involved and that there exists no , \ ( 't. . . - 14 - basis for this panel of the Board to conclude that similar arguments were not made to the Bennett panel. The on-call system subsequently implemented by the Employer can in no sense be called a gratuitous system, since it was in response to an order of the Grievance Settlement Board to pay on-call entitlement. Ms. Chapman further argued, on the authority of BloJ1din 78/89 (Sloane), that in any event a new argument is not a reason to change, an earlier decision. It is, therefore, irrelevant whether or not the specific issue was argued in Bennett. The Bennett decision was not reviewed, and it was implemented by the Employer, and it is improper for the Employer to get another try at the same issue on this arbitration. In repl~ Mr. Kenny disavowed any intent to create any general proposition with respect to Schedule 6 Employees. Rather, he stated the Employer's position as being that the collective agreement indicates an intention on the part of the parties to pay a weekly salary for the necessary work involved in the job and not a straight . time hourly rate with premiums. For this proposition' he relied strictly on the provisions of the collective agreement. With respect to the Union argument on basic hourly rate, it was Mr. Kenny's position that wherever the collective agreement contemplated payment on that basis, it did provide the measure of calculation of that basic hourly rate. Therefore, where that was not specified, there could be no intent to pay it. ;':. I .. - 15 - ., It is our view that the issues relating to 'the entitlement of Schedule 6 ';'.,. I. ~ ì _ Employees to amounts payable pursuant to the provisions of Articles 15 and 16 of . .' the collective 'agreement have been accurately analyzed by counsel for the Union. At the end of the day, in argument, both counsel were, in fact, in agreement that there was not a totally different and 'separate regime set down for Schedule 6 Employees, , . but rather the issue was whether or not ~ particular article on its language was - intended to apply to a Schedule 6 Employee. We further think that Mr. Kenny correctly stated the rationale of the prior decisions of this Board dealing with overtime, call-back, travel time and similar entitléments on the basis that a weekly - salary is paid' for all necessary wo~k involved' in doing the job, and Schedule 6" . , - " ' - - Employees do not get paid straight time hourly rates with premium paynÌént for addition~ 'work. In substance,' Schedule 6 Employees include esSentially those types .' of employees who, because of the nature of their duties, do not have regular and . predictable hours' of work. Their general salary levels' are sligh~ly higher than the regular salaries paid to employees performing similar job functions on a regular and ~ " predictable work schedule. It may reasonably be concluded that the salary . differential is attributed to the fact that. 'as the "parties have always been aware, the . . , . Schedule 6 Empioyees do not receive certain of the premium payments provided for , . under the collective agreement. There is, however, no logical, rèason to extend that principle into the employee's non-working time and to suggest that for that same "'..: . . - 16 - weekly wage the Employer acquires a call on all of the employee's time without . further compensation. Accordingly, we see no basis in logic to conclude that the weekly wage is intended to cover anything more than the necessary work involved in performing the job. In considering the specific language of the Articles being considered on this arbitration to determine if they were intended to apply to Schedule 6 Employees, we believe that we should approach that task on the basic premise that collective agreement language conferring benefits on employees will be intended to benefit all . employees who are subject to the collective agreement in the absence of specific exclusionary language for a particular group of employees or some indication that in the employment context those employees could not have been intended to be benefitted by the Section. Articles 15 and 16 each apply on their language to a period of time that is "not a regular working period". The Employer's argument is that for a Schedule 6 Employee any time is the regular working period, and therefore there can be no period of time that is not a regular working period. However, in our view it is just as logical to argue that a'Schedule 6 Employee has no regular working period and that therefore any time constitutes a period of time for a Schedule 6 Employee that is not a regular working period, except times when the employee is, in fact, at work. When the employee is at work, that work is paid for I ~, .' - ,., - 17 - , by the weekly wage. When not at work, If the employee is keeping himself available . either for immediate, recall to work or to be r~asonably available for reèall to work, the respective entitlements under Articles 15 and 16 are triggered. . The computation of entitlem"ent undèr Article 16 offers no 'difficulty whatsoever. U uder Article 15, however, it is necessary to apply the concept of a normal work day and a basic hourly rate. We believe that those issues have been 1 ~ensibly and correctly addressed in the Fawcett decision, and we would' adopt the same approach on this arbitration, should it be found that the system introduced by' the Employer comes within the provisions of Article 15. o . In summary, it is our view that the entitlements under Articles 15 and 16 are of a totally different kind arid character than the various types òf premium payment that have been denied to Schedule 6 Employees in prior decisiçms of this Board. They are, in substance, compensation for the inconvenience and disruption of the employee's personal life by a contingent requirement to.return to work and may not reasonably be considered to have been adequately compensated by a payment intended to cover work performed. On any common sense approach, while the length of any particular working day may be unpredictable and may start before 8:30 à.m. and continue after 4:30 p.m., once the employee has finishe~ work and I "", . . - 18 - gone hornet the regular working period has ended. If there exists a call on their time to return to work prior to when they may reasonably expect to returnt they are entitled to be paid pursuant to the provisions of Article 15 or 16 depending on the nature of that obligation. We conclude that in appropriate circumstances Schedule 6 Employees are entitled to payment under the provisions of Articles 15 and 16, and the hearing will resume on the dates scheduled. DATED this ~nd day of Apri 1 ~ 1991. Ross L. Kennedy ~. //:7 ;.,:; ..... ., '/ ,- _""~.. L_ E. Seymour . , . ~ n ...... m· ~_ ov~- M. O'Toole I I