HomeMy WebLinkAbout1990-0096.Gullen.90-12-28
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, ONTARIO EMPlQYÉS DE LA COURONNE I
CROWN EMPLOYEES DE L'ONTARIO \~Ì'>,.¡ß P
1111 GRIEVANCE COMMISSION DE
SETTLEMENT . ~ ~\ (}J1J
REGLEMENT ~ ~
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO. ONTARIO. M5G lZ8 - SUITE 2100 TELEPHONE ITtLtPHONE
180. RUE DUNDAS OUEST. roRONT'O,.(ONTARIO¡ M5G IZ8 - BUREAU 2100 . (418) 598-0688
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0096/90
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IN THE MATTER OF AN ARBITRATION
Under .
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THE'CROWN,EMPLO~EES COLLECTIVE BARG~INING ACT
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Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
CUPE (GuIIen)
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- Grievor
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The Crown in Right of Ontario
(Workers' Compensation Board)
Employer
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B. Keller Vice-Chairperson
G. Majesky Member
H. Roberts Member
FOR THE S. Barrett
GRIEVOR Counsel
Sack, Charney, Goldblatt &
Mitchell
Barristers & SOlicitors
FOR THE P. Young
EMPLOYER Counsel
winkler, Filion & Wakely
Barristers & Solicitors
HEARING: . August 2, 1990
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DECISION
At the outset of the-hearing, the Bo'ard was informed by the
parties that they wished to proceed on the grievance of Mr. Bruce
Gu II en rather than the grievance set for hearing by the
I Registrar as it was felt that the resolution of Mr. Gullen's
grievance would resolve the one to be determined by the Boa~d as
well as deal with the same problem faced by approximately 130 of
Mr. Gullen's co-workers. In view of the above, the Board acceded
to the request of the parties. The grievance alleges that the
employer improperlY applied the provisions of the income
protection plan following a reclassification of employees. In
particular, it is alleged that there was a reduction to their
regular gross income.
The relevant provisions of the collective agreement are 6.0S,
5.01(a) and S.09(a)
6.0S Income Protection
Where an employee is placed under Article
5.0l(a) or Article 6.10, the present
practice in respect of income protection
will be maintained.
5.0l(a) In accordance with Article 6
Technological and Organizational Change,
first consideration will be given to
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placing employees occupying the same or
higher ,salary classification, w:ithin the
bargaining uhit who are 'affected by
organizational or other changes which
hav~ r~~~lted, or are likely,tò result,
in a reõuction of the workforce. .
8.09(a) because of the nature of his position is
required to work irregular hours. Such
an employee Shall, for the purposes of
payment, be deemed to be working a
minimum of forty.(40) hours per week, and .
his salary shall "be adjust~d to forty - -
(40) hours an a straight time basis.
There is no di~pute that the grievor, and other affected
employees, are to be afforded income protection as provided in· s.
6. 08 . _ .
~he f~cts giving ~i~e to this issue are not in, disput~. In an
effort to improve the employerfs vocational rehabilitation
efforts and programs, a massive corporate reorganiza~ion
commenced in late 1986. In April l~88 the Board ~f Directors of
the WCB approved in principle a new vocational and social
rehabilitation strategy. This decisiqn affected just over 130
employees classified as Vocational Rehabilit~tion Counsellor 1 at
salary grade 072 and Employment 1 Placement Specialist at salary
grades 074/374. They were subsequently reclassified as' of
January 1, 1990 to new posit~ons, carrying a variety of titles
and classified as 071, 072 or 073. None of the posi~ions were
classified as 074.
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Each of the affected employees received a letter from the
employer informing them of the above and indicating that, where
appropriate, they woula receive salary protection under s. 6.08
of the collective agreement and, in fact, they did where they
were reclassified to a lower salary grade. (There is no dispute
between the parties regarding this).
Pr i 0 r to the re~lassification, the normal hours of work of
employees was 7 1/4 hours per day and 36 1/4 hours per week.
compensation for work performed in excess of those hours was as
provided in s. 8.0 of the collective agreement. A particular
regime was provided in s. 8.09 for those employees who, because
of the nature of their position, worked irregular hours. In such
cases they were "for the purposes of payment . . . deemed to be
working a minimum of forty (40) hours per week". Their "salary
(was) adjusted to forty ( 40) on a stráight time basis". The
result for these employees was that they received pay for forty
hours per week whether they worked, for example 36 1/4, 40, or
47.
Following reclassification the need for irregular hours
disappeared. Those employees who had been under the s. 8.09
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re,gime received, as appropriate, the protection of the income
protection plan. Such salary protection was calculated on the
basis of 36·' 1/'4 hour-s ., per week. It is the position of the
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grievor and.the union that as a result of s. 8.09 their salary
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was based on 40 hours per week prior to the reclassification and
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that it .is the 40 hours· p'er week that is now to be protected.
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Intérnal documents,Df the employer sho~ a salary grade with a
prefix of "3" rather than "0" (e.g. 374 rather than 074) for such
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employees. The union argues that this demonstrates a salary
grade recognizing 40 hôurs per week. The employer takes the
po"sition that this was for internal purposes only identifying
those working irregular hours and didn't constitute the
establishment of a separate salary grade. It ~s furtherarguéd
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that it is only the collective agreement that can establish
salary grades and no prefix "3" is .'found anywhere in the
collective agreement. .
substantial evidence was led dealing with the genesis of s. 6.08
and, in particular, the positions of the parties in past
negotiations. . In our view there is no need to recount that
history as nothing turns on it.
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A determination in this matter can not be made by looking at any
one section of the agreement in isolation. Each section must be
read in the proper cõntext. In the instant case there is no
question but that the salary protection plan applies to those who
have been reclassified to a lower salary grade. Indeed, this has
been done. The issue is whether salary protection is to be based
on 36 1/4 or 40 hours per week for those to whom s. 8.09 applied
in the past. Article 8 establishes the rules for the eligibility
to, and payment of, overtime. Its' purpose, like all overtime
provisions, is to establish the level and quantum of compensa-
tion where work hours exceed the norm established in the collec-
tive agreement. In the instant case, s. 7.01 establishes the
normal working hours at 36 1/4 per week. That establishes the
norm: without express language to the contrary that is the basis
for the application of the income protection plan.
Does s. 8.09 provide that contrary language. In our view it does
not. We reach that conclusion because of the very wording of s.
8 in general and 8.09 in particular. As indicated above, s. 8
deals with overtime and its modalities. S. 8.09 provides one of
those modalities. It stipulates where employees will not be
eligible to overtime compensation (i.e.) where irregular hours of
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work are the requirement of a position. I
In such a case, employ-
ees are paid 40 rather than 36 1/4 hours per week for as long as
they coritTnue to -wo'ikirregular hours. The result is not a
different rate of pay than others in the pay grade. It is the
same rate of pay plus a "top-up". This scheme was negotiated,
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according to the evidence, to avoid the necessity of tracking-the
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hours of those affected. ~Clearly in some, weeks employees will
earn more than their hoúrs worked warrant and vise-versa.
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Thus, it is our 'conclusion,' 1:;ha't the, income protecti9n plan is on
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the basis', for the affected employees, of 36 1/4 hours pay per
week. s. 8.09 compensation does not aft'ect that protection or
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,enti tlement.
The grievance is dismissed.
Nepean this 28th day of December 1990.
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, . - Brian Keller, Vice-ChaiIPerson
M.
11 I QJ..SßENTII (Dissent att.a~hprl)
G.Majesky, Member
[R~C
- H. ' 0 arts, Member
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Bk.t.'1d.li COPE 1750 (GulleD)
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TBB CBOIIf IN THE 1UGB'J' OP ONTARIO
(Worker' s CoaIpeDBa. tioo Doa.rd)
0096/90
UNION IDIINBE DISSDT
As the union Domineel I have rend this award and must declare
tba t I dissent from the majority. This is a matter which
requires an introspective into the compensation practices of
the WeB and its salarieå staff.
The chairman ha.s presented the issue in a very clear and
precise manner t though there are several points and issues
with which I must clearly distinguish as they are relevant to
this case.
(1) Tbe union and management have bad the reference of
salary in the Overtime provisions of the collective
agreement since the tlrßt agreement was signed.
(2) The Overtime section' in the COllective Agreement
states that work hours beyond 361/4 hours are
overtime t but, is qualified under section 8.09 (a)
which states:
"8.09 An employee is eligible for ove.rtime
compensation unless he:
a) because of the nature of his position is
.required to work irregular hours. SUch an \
employee shall. for the purposes of payment, be
deemed to be working Q. minimum of torty (40)
hours per week, and his sat a.ry shall be adjusted
to forty (40) Qours on a straight tilrK.' basis."
It is apparent on the face of the language tba t
Vocational Rehabilitation Counsellors have a
definition of work day/week dist1nguished from
tradi tional overtime. Add1 tional1y. they have not
been paid a premium on the hours above the 381/4
hours worked~ so why tbe distinction of whether it is
"top-up". Secondly, tbe'money is not overtime, 1 t -is
housed In the overtime Pl"OViEÜOn so that they don't
get overtime premium.
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, (3) Mánagement made a big .fuss, concerning the sta.tus of
tbese grievor' s by being emphatic tha,t-' they are
hourly, l:i.ª-_.9Pposed to salaried workers, The fact of
matter is that ,these a,re salaried employee's, not
-- -. hourly paiå. As salaried t they work irregular hours,
manage own work, in field without· supervision. and
manage their own time.
(4) The genesis of how this group cif employees gat
slotted into' section a.09(s.) is that the ~mployer
felt it would be easier tò administer this ~cheme, as
opþosed to overtime. - Consequently the employer
benefited from administrative efficiency, and, I
further benef,i ted from Dot' having to pay overtime, I
because the work day for the grievors was defined as
40 hours. Now, when the, gr1evor's ,seek i..ncome
protec t.1on , as tbe1r pos1 tions changed due to re-
organizationJ they are told by management, a.nd tbe
decision of this board J that they tAche ically are 36
1/4 hour a week employees. So in reali ty ~ the
grievors have been prejudiced two succéssive times.
And, the employer has benefi l;ed from efficiency in
paperwork, -'ho-overtime pãyœents, and no payout for
. income protection. ' '- -
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(5) Ii you look to the method of salary calculation, it
is not calcula tad by hours, but baaed on 8.. singl.llar
-sum. Thus, the grievors receiv~ a t1xed salary rate,
housed in over....time sectioIl because it was the best
fi t the parties could find wben they drafted the
original eOllective agre~ment. ' '
The employer also submitted a number of exh1bits~ onp.
of which' was a July 28, 1982 CUPE 1750 bulletin to union
IOOmbers adv1s1ng ot the hours Or \'Ork for field statf and
irregular hours employees:
"Several enquiries have been received by the Union
regarding the hours of work required of field
employees. -
Most of these enquir1es have arisen because of
incorrect and conflict1n¡ direction given by some
~uperv1sors. Some members have bèen advised that the
40 hour per week pay provisions means that they must
work 40 hours per week. , Othar members have, been
advised that irregular hour employees,are expected to
work overtime wi tb no compensation. Furthermore, Somê
members have been informed that they must work over 40
bours per week - until all the work gets done.
For clarification we must look at the language in the
ColI active Agreement. Article 7:1 states that
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Clerical. Serli or Administrative and Treatment
employees work normal hours of 361/4 hours per wèek.
In addition, Article 8:9 {&) - points out that field
¡)er8ÓnneI who - are. reqU1~ to oork' irregula.r tiöurs
wiI r be consìderecí 1;0 be working ,40 hours .Per work for
paymënt purpoøes only. 'l'OUS, - the ~ 3/4 -bol.!r psi
premium - recognizes work perfonoed outside regular
hours. II (emphasis added)
I find it strange that the employer would present an exhibit,
which makes the union1s ease even stronger. Tbe language that
says ItpersODnel who are required to work irregular hours will
be considered to be workIng 40 hours per work for' payment
purjioses only".-· Well ~- I dOD' t think you can -get any cl~arer Ii.
deÎinì. tion ol how aDd wba t the 40 hour work week means; and
the limi ted ltppJication of this definition. It says very
c.learly llfor payment purposes only". That clearly means to me
when we are dealìng with pay related issues the grievors are
considered to be working 40 hours. Tho. t means, either: (1)
weekly payment purposes. or (2) income protection payment
purposes, There is a logical flow to this proposition.
Tbe union also has a memo, exhibit #19, from Vlce-Cbairrnan and
President Alan Wolfson dated Yay 7, 1990. The union 1s quite
correct in their assertion that this memo of corporate intent
clearlY supports the union's c.laim for, income protection and
the preliminary threshold claim:
liOn March 9, I announced tha t tbe Board's policy of:
two years full salary protection would apply to those
employees adversely affected by the following
organizational initiatives: the integration of
services in th~ Regional otfice. the implementa.tion of
tbe Claims Adjudication Stra. tegy t the implementation
of the Revenue Strategy and tbe corporate realignment.
Thlti is an exception to tbe Board' ssta.ndard pol icy of
red-circling sala.ry protection."
It is my clear belief that the Prêsident of the WeB has
clearly established the corpora.te directioD with respect to
salary protection. Mr. Wolfson speaks to tltull Salary
protec.~t:t.on'r and goes on to say that "I trust these comments
clarifY the Board's 'policy with respect to salary protection".
Frankly, the union submitted a definition from the Dictionary
of Peraoonel and Management and Labour RelatioDS for earnings.
It describes earnings as. total remuneration of an employee or
group of employees for worK performëèl, loc-h.lding wages,
bonúses, \(?mnlssions, etc. .-. .
In the tinal analysis_ I am compelled to support the position
taken by Alan Wolfson, Vice Chairman and President of the
Worker's Compensation Board. Clearly, he intended to provide
for full salary protection, and therefore, the grievors should
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have received income protection based on their weekly salary
of 40 hours per week.
Respectfully suhm1tt~ by
. . nNT SERVICES
GM/m¡,
MARKHA.M: t on tar10
December 1990
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