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HomeMy WebLinkAbout2010-3062.Union.16-12-12 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-3062 UNION#2011-0999-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING December 6, 2016 - 2 - Decision [1] On December 10, 2013 I issued my decision relating to a policy grievance dated February 22, 2011 and remained seized. The grievance related to the entitlement of Fixed Term Correctional Officers (“FXT/CO”) to overtime pay rates under article 31 A. 3.1 ( b) of the collective agreement. The Article provides that overtime rates apply for authorized hours of work performed “in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours.” The parties had agreed that the Board should restrict itself to interpreting the article based on the evidence relating to one institution, The Vanier Centre for Women, and remain seized with the grievance. At paragraphs 35 and 36 I wrote as follows: [35] The issue for determination by the Board is whether an unslotted FTE/CO who fills in for an absentee RFT/CO, and performs a shift the latter held under the CWWA, works “in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours”, when he/she is required to work beyond the hours of that shift. For article 31.A.3.1(b) to apply two conditions must be met. First, the employee must work in excess of the scheduled hours. In the instant case since every shift to be performed at Vanier is set out in the CWWA with a designated number of hours, if there is a shift extension the employee would be working “in excess of the scheduled hours”, and the first condition would be met. [36] The second condition for sub-section (b) to apply is that the employee must be one who “works on a regularly scheduled work day exceeding eight hours.” The parties disagree on whether or not this condition is met when a FTE/CO fills in for a regularly scheduled shift exceeding 8 hours held by a RFT/CO. The evidence is clear, and the union did to argue otherwise, that FTE/COs themselves do not have regularly scheduled work days at Vanier. They do not participate in the CWWA scheduling process and do not have shifts assigned to them under the CWWA. Only some of the anticipated work hours are scheduled for FTE/COs fifteen days in advance, and even that only to the extent possible. The evidence is that this scheduling is only tentative and the hours so scheduled are often increased or decreased based on the employer’s needs on a given day. FTE/COs may be assigned up to 40 hours a week, but are not guaranteed any hours. The evidence is that subject to very minimal exceptions, their work is almost exclusively as fill-ins for absences of RFT/COs, and the extent of - 3 - those absences, and when they may arise is unpredictable. They are utilized essentially as needed to fill in for RFT/COs, and their work hours change frequently on short notice. [2] At paragraphs 48-49 I concluded as follows: [48] The Simmons decision, and its interpretation of article 31A.3.1 are well reasoned. The Board gave effect to the intention of the parties as indicated by the use of different language in the various sub-sections of the same article. The Board does not find, and the employer did not suggest, that the decision is manifestly wrong. As reviewed above, the decision is not in conflict with other decisions of the Board. Therefore, there is no reason to depart from its interpretation. The evidence is that the majority of a FTE/COs shifts are scheduled 15 days in advance. Others are scheduled with shorter notice. With few exceptions, FTE/COs are scheduled exclusively to fill in for shifts held by RFT/CO. Thus, a FTE/CO, when scheduled for shift in advance or the day before, would be able to ascertain the duration of the shift he was filling in for, and its start/end times. He/she therefore takes over a shift with known and established hours. Therefore, if the shift hours are extended, it would cause inconvenience to the employee. Therefore, the interpretation, in the context of the facts at Vanier, is not inconsistent with the purposes of overtime as well. [49] In the result, the Board concludes that an unslotted FTE/CO at Vanier is entitled to overtime pay under article 31A.3.1(b), when due to a shift extension, he/she works in excess of the hours of any scheduled shift exceeding 8 hours, he/she filled in for. The Board remains seized with the grievance to deal with any other issues the parties may decide to put before it. [3] When the Board reconvened on December 6, 2016, the parties informed that they had resolved all issues in dispute based on the Board’s decision, except the application of the Board’s interpretation in five “scenarios.” UNION SUBMISSIONS [4] Scenario 1 Unscheduled FXT CO called on same day to complete a shift for a FT CO who did not attend this shift. Shift is a CWW shift and the remainder of the shift that was worked was 9 hours. The full CWW shift though was not worked by the FXT. After arriving at the institution and commencing the above shift, the FXT CO was asked to work an additional 4 hours to commence immediately following the conclusion of the above CWW shift. - 4 - Union counsel recognized that while the CWW shift which the FXT/CO was backfilling was a 12 hour shift, because he was called the same morning, he was unable to report for the start of the shift. As a result he was able to work only 9 of the 12 hour CWW shift. However, counsel submitted that when the FXT/CO reported to work he knew when he would start and end his shift. Then during the shift, 4 hours were added at the end of his scheduled shift. Thus he worked 4 hours more than originally scheduled. [5] Counsel pointed out that the only issue here is that the employee did not do the full CWW shift. He submitted that this does not make the Board’s reasoning inapplicable. The first condition the Board set out at paragraph 35 of its decision is met since the FXT/CO had a scheduled shift with a known end time, and it was extended when 4 hours were added at the end of that shift. The second condition set out at paragraph 36 is also satisfied because the FXT/CO worked on a CWW shift, which is a “regularly scheduled work day” which exceeded 8 hours. Therefore, overtime rates apply under article 31.A.3.1. (b). [6] Scenario 2 An FXT/CO scheduled on JUNE 18, 2015 to work a CWW shift on July 24, 2015. The shift was scheduled to start at 1830.At 0908 on the morning of July 24, 2015, the FXT CO was asked to work 4 additional hours from 1430-1830. The 4 additional hours represent a partial CWW shift. The FXT/CO accepted. Union counsel submitted that in this scenario also, the two conditions for entitlement to over-time are satisfied. The FXT/CO was scheduled for a 12 hour CWW shift. His shift was extended at the front end when 4 hours out of another full-time CO’s 12 hour CWW shift were added to be worked immediately before the start time for the scheduled shift. - 5 - [7] Counsel submitted that it is irrelevant that the hours were added at the front end and not at the end of the scheduled shift. The important fact is that he worked part of a CWW shift, immediately followed by his scheduled 12 hour CWW shift filling in for another full-time CO. He had a scheduled 12 hours shift with known and established start and end times. He ended up working in excess of that for a total of 16 hours. Thus he is entitled to overtime rates. [8] Scenario 3 An FXT/CO scheduled on August 7, 2015 to work a CWW shift on August 21, 2015. The shift was scheduled to start at 1930. On August 19, 2015, the FXT/CO was asked to work an additional 4 hours prior to the commencement of the 1930 shift. The FXT/CO accepted. The only factual difference between scenario 3 and scenario 2 is that in the latter the addition of extra hours was notified the same day of the scheduled shift, while in scenario 3 the FXT/CO received notice of the additional hours two days in advance. Counsel referred to an employer document titled “Fixed Term Overtime Implementation.” In a “Questions and Answers” section, question 5 reads, “Can a shift extension occur at the beginning of the shift as well as the end of the shift?” The answer reads, “ if the employee’s shift was changed with less than one (1) hour notice and the original pre-scheduled shift is part of the local CWWA where the employee is backfilling for a regular employee, then hours at the beginning of the shift would be considered a shift extension and subject to the daily overtime provision”. [9] Union counsel submitted in that document the employer has unilaterally set out an arbitrary notice period to limit entitlement to overtime. There is nothing in the collective agreement to the effect that there would be no entitlement to overtime rates if a certain amount of notice is received of a shift extension. Therefore, it would make no difference whether notice of one hour, 10 hours or - 6 - 10 days is received. The employer cannot unilaterally add a condition that limits entitlement to overtime. [10] Scenario 4 An FXT/CO scheduled to work a CWW shift that was scheduled to start at 1930. On the same day, but several hours prior to the commencement of the 1930 shift, the FXT is asked to work from 1530-1900. The FXT/CO accepted. In this scenario, while hours were added the same day to be performed prior to the start of the scheduled CWW shift, unlike in scenario 3 where all hours were performed continuously, there was a gap of 30 minutes between the added hours and the commencement of the scheduled shift, Union counsel relied on his submissions in relation to scenarios 2 and 3 as equally applicable to scenario 4, and urged the Board to find that overtime rates are attracted. [11] Scenario 5 A shift extension for an FXT/CO scheduled to work non backfilled hours, such as escorts, searches, suicide watch, training, etc. Some of these shifts would correspond to the HPRO designated shifts. Some of these shifts would not be correspond to the HPRO designated shift. The HPRO shift codes used are found in the CWW agreement, however, the corresponding duty/post would not be found in the CWW agreement. [12] Union counsel stated that sometimes FXT/CO’s are called in, not to backfill for a full-time CO, but to perform “as needed” duties such as to escort inmates for dental appointments or hospital visits, to perform search or suicide watch duties or for training. They come in and work for the period of time needed to complete the assigned duties. However, on other occasions FXT/CO’s are called in to perform those types of duties, also not filling in for a full-time CO, but for specific scheduled hours. Those hours correspond to a shift code in the overtime tracking system called HPRO. The union claims that in this - 7 - circumstance, if hours are added to the hours for which the FXT/CO was scheduled, overtime rates are payable under article 31A.3.1.(b) [13] Counsel submitted that although the FXT/CO was not backfilling for anyone, the hours he worked corresponded to a regularly scheduled HPRO shift with known start and end times. If he works in excess of those scheduled and known hours, the two conditions set out in the Board’s decision are met. EMPLOYER SUBMISSION [14] In Scenario 2, 3 and 4 the employee was scheduled for a CWW shift with established hours, and extra hours were added on the day of that shift, either prior to or at the end of those hours. Counsel submitted that in each of those scenarios there was no extension of the employee’s scheduled CWW shift. Rather, what occurred was a change of the hours of the scheduled shift by the employer in the exercise its management rights. Therefore article 31 A 3.1. (b) does not apply. [15] Employer counsel submitted that scenarios 1 and 5 also do not attract overtime rates under article 31 A. 3.1. (b) In both, the FXT/CO was not backfilling for a CWW shift held by a full-time CO. In scenario 1, the full-time CO held a 12 hour CWW shift. The FXT/CO backfilled for that regular CO, but only for 9 hours, not the entirety of the 12 hour CWW shift. Counsel referred to the observation of the Board in Re OPSEU, 2180/90 (Simmons) at paragraph 8 to the effect, “In other words, we have in (b) unclassified employees who work on a regularly scheduled work day exceeding 8 hours (the classified employee’s work schedule) as replacements for those classified employees” Thus the FXT/CO must be replacing the full-time CO for the shift the latter held. In this Board’s previous decision also, the Board recognizes that to satisfy the second condition it set out, the FXT/CO must have worked “a regularly scheduled shift”. The regularly scheduled shift was a 12 hour CWW shift. The FXT/CO did not do that 12 hours CWW shift. He did only part of it. There are no 9 hours shifts regularly scheduled under the CWW agreement. - 8 - [16] Employer counsel submitted that in scenario 5 the FXT/CO was not performing a shift regularly scheduled for anyone. Whether the assignments like escorts and training were for fixed periods of time or for an undetermined number of hours as needed, those are not “regularly scheduled work days” as contemplated by article 31 A. 3. 1 (b). Those are not hours that occur on a regular basis under the CWWA schedule. Rather they occur only on an as needed basis. The fact that sometimes those “as needed” hours correspond to hours of a regularly scheduled shift is irrelevant. [17] Counsel referred to article 31A. 4.3 which under “Reporting Pay” provides: (Article 31 A. 4 shall not apply where the employee has been notified, at least two (2) hours prior to his or her scheduled starting time, not to report for work). Also referring to article 2, the management rights clause, counsel submitted that the employer is entitled to change the hours of a shift or even to cancel a whole shift as needed, without penalty. Referring to article COR 5.6, counsel pointed out that even hours pre-scheduled for FXT/CO’s 15 days in advance may be changed, subject only to the requirement that any such change must be verbally confirmed. [18] Counsel submitted that the employer is entitled to make reasonable rules in the exercise of its management rights. It has made a rule that overtime rates do not apply to hours added prior to a scheduled shift with at least one hours’ notice. That is not arbitrary, it is a reasonable rule which allows the employee sufficient time to re arrange his personal life, to the able to start work earlier than originally scheduled. [19] Counsel submitted that article 31 A 3.1. (b) applies only where a scheduled shift being backfilled by a FXT/CO is extended after it has begun. Therefore, it has no application in scenarios 2, 3 and 4, where hours were added to be worked before the scheduled shift. - 9 - UNION REPLY [20] Counsel submitted that provisions relating to shift changes are of no relevance. In the instant grievance the union is not asserting that the employer violated the collective agreement by changing shifts scheduled for FXT/CO’s. The assertion is that by operation of article 31A.3.1.(b), when a scheduled shift is extended by addition of hours, overtime is payable if two conditions are met. He pointed out that in each of the scenarios the scheduled shift of the employee did not change. What occurred was that hours were added to that shift. [21] Counsel submitted that the FXT/CO in scenario 1 was scheduled to backfill for a 12 hour CWW shift held by a full-time CO. Due to the short notice he received, the FXT/CO was unable to report to work in time for the start time of that shift, and was able to do only 9 hours. However the fact remains that he reported for a shift with known hours. When he started the shift he knew when work would end. Then additional hours were tacked on to be worked at the end of that scheduled end time. In the circumstances overtime rates apply under article 31. A.3.1 (b). CONCLUSIONS [22] The analysis must begin by looking at what the parties have stipulated in article 31.A.3.1. (b) because the intention of the parties is the paramount consideration. The Board’s mandate is to ascertain that intention by interpreting the language they have agreed to, and apply it to the facts. In the decision dated December 10, 2013, the Board interpreted article 31.A.3.1(b) and applied it to the evidence pertaining to Vanier. In the instant proceeding the Board is called upon to apply its interpretation to certain hypothetical fact situations put before it. In its decision at paragraphs 35 and 36 the Board concluded that for entitlement to overtime rates under that article two conditions must be met. The Board must, therefore determine whether those two conditions are satisfied in the scenarios presented by the parties. - 10 - [23] I first turn to scenarios 2, 3 and 4, since they include substantial common facts. Scenario 2- Conclusion The employer asserts that overtime is not payable because the additional hours were worked at the front end of the scheduled shift. Counsel argued that in that circumstance there was no “extension” of the scheduled shift. The employer simply exercised its management right to “change” the hours of the scheduled shift. [24] The first condition to be met is, “the employee must work in excess of the scheduled hours”. The article does not speak about “extension” of a shift, or about hours being added at the beginning or end of a shift. As noted in the earlier decision, in the vast majority of cases article 31.A.3.1(b) comes into play at corrections institutions as a result of shift extensions. Therefore it is not surprising that counsel during their submissions, and the Board in its decision, repeatedly referred to shift extension. However, the requirement in condition 1 simply is that the employee must have been scheduled for a certain number of hours, and he must have worked in excess of those hours. Whether those excess hours are characterised as a shift extension or a change in the scheduled hours is irrelevant. The FXT/CO in scenario 2 worked in excess of the hours he was scheduled for, and the first condition is satisfied. [25] The second condition for entitlement is that the employee must be working on a “regularly scheduled work day exceeding eight hours”. In the previous proceeding the employer argued that, “The employee must be working on a work day regularly scheduled for him/her. An employee who has no regularly scheduled work days is not entitled to overtime under sub-section (b) merely because he/she works on someone else’s regularly scheduled work day”.( See para. 27 ).Contrasting the language used in the various sub-sections of article 31A, and relying upon a previous decision, the Board rejected that argument. - 11 - [26] In scenario 2, the FXT/CO was working on a regularly scheduled work day exceeding 8 hours because he was doing a regularly scheduled CWW shift. Therefore the second condition is also met, and would be entitled to overtime rates under article 31.A.3.1 (b). Scenario 3- Conclusion [27] The facts are identical to those in scenario 2, except that the extra hours were added not on the day of the scheduled shift, but two days in advance. The employer relies on a policy document which in effect stipulates that there is no entitlement to overtime under article 31A.3.1(b) if the employee received at least one hour of notice of the addition of hours. [28] While the employer may have general authority, in the exercise of its management rights, to change shifts, or even to cancel shifts, it cannot do so where that results in abridging or negating a right or entitlement under the collective agreement. Article 31A.4.3, cited by employer counsel, is illustrative in this regard. There the parties have stipulated that there would be no entitlement to reporting pay if notice of a specified minimum is provided to the employee. The parties could, and would have, if they so intended, included a similar caveat in Article 31A.3.1.(b). They have not done so. The article makes no provision for the employer to be able to avoid payment of overtime rates by providing reasonable notice. The employer is not entitled to unilaterally add a reasonable notice limitation to the entitlement. I find that for the same reasons as in scenario 2, the FXT/CO in scenario 3 is also entitled to overtime rates. Scenario 4- Conclusion [29] The facts are similar to those in scenario 2, except that there was a period of 30 minutes of non – work time between the completion of the extra hours added at the front end and the commencement of the scheduled shift. I find no requirement in article 31A.3.1 (b) that hours worked must be continuous. The FXT/CO was scheduled for a 12 hour CWW shift commencing at 19.30. He worked in excess of those hours. The work was performed on a CWW shift, - 12 - which is clearly a regularly scheduled work day that exceeds 8 hours. Therefore the second condition is also met and overtime rates apply. Scenario 1 – Conclusion [30] The complicating fact in this scenario is that while the shift scheduled for the FXT/CO was a 12 hour CWW shift held by a full-time CO who did not report to work he did not work the full 12 hours. He did only 9 hours. Condition 1 is clearly satisfied. The FXT/CO worked a total of 13 hours that day. That is in excess of his scheduled hours, whether the scheduled hours are deemed to be the 9 he actually worked or the full 12 hour shift for which he was scheduled. [31] As for the second condition, employer counsel submits that no 9 hour schedules are scheduled under the CWWA. There are no 9 hour shifts regularly scheduled. Therefore the 9 hour the employee worked could not constitute a regularly scheduled work day. It is clear that the FXT/CO was backfilling for an absent full-time CO. During his submissions union counsel elaborated that the officer was called in to do the absent full-time CO’s shift, but due to the short notice received was unable to report on time for the scheduled start time of the shift. That was the reason he was able to do only 9 hours of the 12 hour shift. Employer counsel did not take issue with that elaboration. [32] The FXT/CO was backfilling for a CWW shift, which clearly would be a regularly scheduled work day exceeding 8 hours. He was not called in for a 9 hour shift. The fact that he was only able to do 9 hours of that CWW shift, does not detract from the fact that he was scheduled for a CWW shift. He did only 9 hours only because he was unable to report on time due to the short notice received. [33] The scenarios before me indicate that it is not uncommon for FXT/CO’s to be called in on short notice. If the employer’s position is accepted, it would mean - 13 - that a FXT/CO would not be entitled to overtime if for some reason he works anything less than the full 12 hour shift, for example if he leaves work 30 minutes early due to sickness. That is not a reasonable interpretation of the article. [34] I find that when a FXT/CO is scheduled to backfill for a CWW shift he would be working on a regularly scheduled work day. If it exceeds 8 hours, condition 2 is satisfied, even if he works less than the full 12 hours of the shift. It follows that the FXT/CO in scenario 1 is entitled to overtime rates under article 31A.3.1 (b). Scenario 5 – Conclusion [35] The facts here are distinct. The duties for which the FXT/CO was called in are not duties that recur on a regular basis. Work hours for those types of duties are not regularly scheduled under CWW or outside it. Those hours are scheduled as needed. The fact that sometimes hours so scheduled happen to correspond to hours of a regularly scheduled shift does not convert those hours into a regularly scheduled work day. The hours were scheduled on an as needed basis and not regularly scheduled. Therefore there is no entitlement to overtime rates under article 31A.3.1(b). [36] In summary, in scenarios 1, 2 , 3 and 4, there is entitlement to overtime under the article. There is no entitlement in scenario 5. [37] As jointly requested by the parties, I continue to remain seized with the grievance to deal with any further disagreements as to the implementation of the Board’s decisions in this matter. Dated at Toronto, Ontario this 12th day of December 2016. Nimal Dissanayake, Vice Chair