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HomeMy WebLinkAbout1992-1599.Delaquis.93-11-15 .- c- - ( ,.. EMPLOYES DE LA COURONNE ONTARIO \, ~<..:. . CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE CPMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STReeT WEST SUITE 2100, TORONTO ONTARfO, MSG lZ8 TELEPHONEI7:ELEPHONE (416) 326-13 180, RUE DUNDAS OUeST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE ITELECOPIE (416) 326-13 ( 1599/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (D~laquis) Grievor - and - The Crown in Right of ontario (Ministry of the Environment) Employer BEFORE: S. Tacon Vice-Chairperson M Lyons Member D. Clark Member ) FOR THE M. McFadden UNION Counsel Koskie & Minsky Barristers & Soli~itors FOR THE R. Angotti EMPLOYER Counsel Fraser & Beatty Barristers & Soli:itors ~ \ HEARING October 21, 1993 ~ , 1 DECISION This grievance deals with the issue of the appropriate payment for the time spent by the grievor (Rheal Delaquis) in responding to a call from the Spills Action Centre on May 13, 1992 The union contends that the one and one-half hours in question should be compensated according to the call back provi~ions in article l4 of the collective agreement. The position of the Ministry of the Environment ("the Ministry" ) is that the grievor, who received payment for the period at the overtime rate in article 13 of the collective agreement, was properly compensated. The parties filed an Agreed statement of Facts and the documentary material relevant to this matter. It is appropriate next to summarize the salient facts. The grievor is employed as an Environmental Officer 4. His normal hours of work are Monday to Friday, 8:15 a.m. to 4:30 p.m About two-thirds of those work hours are spent in the Ministry office in Cornwall and the remaining one-third at sites. In 1986, the Ministry established an Emergency Response Program ( IfERplf) to deal with environmental emergencies outside regular work hours. The Prpgram consists of two response stages: Ministry employees at the spills Action Centre (IfSACIf) receive calls regarding spills throughout the province and assess the situation - initially; if it is decided that the site should be visited, a local environmental officer is contacted who is then responsible for the investigation. The environmental officer (the ERP Officer) assigned to receive calls from SAC outside regular offic;:e hours maintains one of two "- levels of response readiness, standy-by or on-call, according to an established schedule A roster of employees willing to serve on stand-by and on-call is maintained for each district office in the 2 Ministry throughout the province; each week, an employee from that roster is assigned to receive calls from SAC. The ERP Officer is provided with a Ministry vehicle and a ,beeper to receive calls from SAC. The vehicle contains radio, telephone and other response equipment. All Ministry employees also have access to a toll-free number to respond to SAC. When a call from SAC is received, it is necessary in most instances for the ERP Officer to actually attend at the spill site to investigate and assist with containment and clean-up. However, anothe~response may be adequate. For example, the gRP Officer may determine, following telephone inquiries, that a Ministry presence is unnecessary or unhelpful before the next day An ERP Officer on stand-by is required to be immediately available to receive a call to return to work and to be immediately available I to' return to the workplace. Stand-by time is paid at one-half the I ERP Officer's basic hourly rate with a minimum credit of four hours pay at his/her basic hourly rate, pursuant to article 15 of the collective agreement. An ERP Officer on-call maintains a lower level of readiness and is required to respond within a reasonable time to a request for recall to the workplace or the performance of other work. statistically, an ERP Officer is less likely to receive a call from SAC during on-call hours. Pursuant to article 16, the ERP Officer ~eceives one dollar for all hours that the Officer is required to be on-call. In the week of May l2 to 19, 1992, the grievor was the ERP Officer assigned to receive calls from SAC for the Cornwall area. At approximately 9:30 p.m. on May l3, the grievor received a call from SAC regarding a spill. The grievor spent one and one-half hours responding to the matter over the telephone; he did not visit the spill site The grievor was expected to work his normal hours the following day, May l4. 3 The grievor received paYll\ent for this period, as noted, at the overtime rate. This compensation rate was in accordance with Ministry compensation guidelines for ERP Officers contained in a memorandum dated september 19, 1986. That document specifically addressed telephone calls during stand-by and on-call periods and provided that such calls would be considered as overtime Overtime is compensated at a minimum basis of one-half hour and at a rate of , one and one-half times the hourly rate. That basis for compensation was confirmed in a Ministry memorandum dated April 23, 1992 - The grievor queried the compensation rate and was informed that the rate paid was in accordance with the Ministry's position that such telephone time should be paid as "overtime". The grievor then filed the instant grievance, asserting the one anq one-half hours spent dealing with the SAC call over the telephone should be regarded as a "call back" under article 14 of the collective agreement. If so regarded, the grievor would be entitled to four hours' pay at one and one-half times his basic hourly rate The thorough and cogent submissions of counsel are briefly summarized. Counsel for the union asserted that the issue for determination is whether the conditions of article l4 - call back are satisfied on the facts of the instant case. If so, counsel submitted that the grievor was entitled to call back pay It was argued that article l4 contained three conditions: the employee has left his/her place of work; the employee is subsequently called back to work; and, the call back is prior to the start of the employee's next scheduled shift. Counsel contended there could be no serious dispute that the first and fhird conditions were satisfied, namely, that the grievor had left the office when the SAC call was received at 9:30 p.m. and the grievor was scheduled to work the following day, May l4. with respect to whether the grievor had been "called back to ~ ;- 4 work", counsel submitted that the grievor had indeed performed work in dealing with the spill investigation over the telephone. In support of this position, counsel noted the distinction in the first condition of article 14 which refers to "place of work", and the broader language in the second condition, "called back to work" . Further, counsel asserted that there was no reasonable basis for compensating employees who "worked" over the telephone on a different basis from those who actually visited a spill site. It was contended that the Ministry memos classifying telephone calls as overtime could not override the provisions of the collective agreement In support of his arguments, counsel reviewed several cases dealing with call back provisions: Re Shell Canada L td. , (1974) 6 L.A.C. (2d) 422; Re Steinberg Inc., (1985) 20 L.A.C (3d) 289; Re TheOueen in Right of Manitoba, (l987) 28 L.A.C. (3d) 241; OPSEU (Koncz) and The Crown in Ri<]ht of ontario (Ministry of Community and Social Services (0748/88, March 20, 1989) (referred to as "Koncz"). Counsel for the Ministry agreed that the grievor was not required to visit the spill site to carry out his duties and that the grievor had, in fact, "worked" in dealing with the matter by telephone. That "work" was adequately compensated, as the Ministry intended in view of the memoranda, at the overtime rate. Counsel submitted that, having regard to the purposes of call back provisions, article 14 required a physical return to the workplace (the Ministry office or the spill site). Where an employee carries out his/her duties by telephone, there was no disruption or inconvenience to the employee's life to the degree which would warrant call back pay Counsel noted that the grievor was already \ being compensated, according to the collective agreement, for maintaining the stand-by lev~l of readiness to respond to SAC calls. To trigger :entitlement to call back, it was argued that further inconvenience, of the sort implicit in a "second trip" or physical departure from the employee's home in order to perform work, was necessary Cases referred to in support included: OPSEU I 5 (Grant) and The Crown in Right of ontario (Ministry of Correctional Services) (197/83, September 15, 1983) (referred to as "Grant"); Koncz, supra; Re Webster Manufacturing, (1971) 23 L.A.C. 37; ~ Leco Industries Ltd., (1980) 26 L.A.C (2d) 80; OPSEU (Charette) and The Crown in Right of ontario (Ministry of Community & Social \ Services) (0026/88, November 22, 1988) (referred to as "Charette"). In summary, counsel submitted ,that the requirements of article 14 had not be~n met and the grievance should be dismissed. In the instant case, there is no dispute that the grievor performed "work" in handling the SAC call over the telephone Nor is there any suggestion that the manner of responding to the call was inappropriate; indeed, the employer clearly expects that ERP Officers will resolve some matters without attendance at a spill ) site, at least outside of the normal hours of work. What is vigorously disputed is the proper basis for calculating the compensation payable for the time spent by the grievor on the telephone on May 13. The issue is whether the handling of the SAC call by telephone is sufficient to trigger the call back provision in article 14 or whether the ERP Officer must actually attend at the spill site or the Ministry office to be entitled to call back pay. The position of the employer is net without attraction. In Webster, supra, the arbitration board articulated arational~ for call back provisions, which commonly guarantee a specified amount of minimum earnings in certain situations, regardless of whether work is actually performed during the entire period. "The purpose of call back is to adequately compensate employees for the significant disruption and expense involved in a second trip to and from the workplace. A concise definition of call back work is provided in Shell Canada, supra, at 429: "Call-out work may be defined as unscheduled emergency overtime work which is not contiguous to an employee's regular shifti, -.- 6 The approach in Webster has been echoed in other cases which considered the precise provision before the Board in the instant grievance In Grant, supra, the .Board stressed that the grievor in that case had already arrived at the workplace, albeit shortly before the scheduled commencement of his shift, when he was asked to perform work Absent a "second trip" with its concomitant disruption to the employee's life, the Board characterized the work performed as "overtime", not "call back" In Charette, supra, the Board refused to regard pre-scheduled overtime as falling within the scope of the call back language in article 14; that article was considered to apply only to archetypal call back situations wherein the employee, having left the workplace, is called to report back to work prior to his/her next scheduled shift. Closest to the factual context of the instant grievance is Leco, supra. There, the arbitrator restricted the applicability of the call back provision to instances wherein the employees, who were required to carry "bell boy" calling devices and remain available to respond to emergency calls, actually attended at the plant to p~rform work. If the emergency call was dealt with over the telephone, the employees were only entitled to overtime rates, not call back. The collective agreement in the instant case expressly contemplates some disruption to the private life of the ERP Officer inherent in stand-by and on-call assignments by providing for compensation for time spent at the levels of readiness required during stand-by or on-call duty Counsel for the Ministry asserts that the parties to the collective agreement have specifically addressed the inconvenience to the ERP Officer The Emergency Response Program, as its name indicates, is designed to deal with emergency situations and, thus, more closely 'approximates pre-scheduled overtime than the sort of emergency which would arise only rarely in other workplaces While counsel acknowledges that SAC calls involve "work" by the ERP Officer and, thus, merit additional I 7 compensation, it is argued that "telephone work" is adequately compensated at the overtime rates and it is only when there is the furth~r disruption involved where the ERP Officer must attend at the spill site or the Ministry office that triggers or warrants call back pay_ Notwithstanding the able submissions of counsel for the Ministry, the Board is not persuaded that the approach in Webster, supra, is appropriate in the instant case. The collective agreement before the Board, in articles 13 to 16 inclusive, expressly contemplates four types of "work" outside of \ regular working hours overtime, call back, stand-by time and on- eall duty. Each category of "work" is defined and a rate 9f compensation is provided. Article 14 - Call Back reads as follows; 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 four (4) hours' pay at one and one-half (1 1/2) times his basic hourly rate. In the Board's view, the facts in the instant case must be measured against the actual language in article 14. While counsel for the Ministry pointed to the Ministry memoranda characterizing "telephone work" by ERP Officers as overtime as indicative of the ~ Min~stry's intention, counsel properly did not suggest that that those memoranda overrode the express provisions of the collective I agreement itself. The precise language used in the call back clause of a collective agreement, of necessity, shapes the analysis in each case. For example, in Leco, supra, the arbitrator stated that the wording of the relevant article in the agreement before him restricted call back pay to instances wherein the employees actually returned to the plant The Webster decision, often cited as articulating the ~ I . 8 underlying rationale for call back provisions, is in a context where the collective agreement does not contain an explicit definition of call back. In the instant case, the term call back is defined. Three condi tions must be satisfied for there to be entitlement to cal.l back pay: the employee must have left the place of work; the employee must be called back to work; and, the call back must be prior to the starting time of the next scheduled shift. There is no doubt that the first and third conditions are present: the grievor had left his place of work and the SAC call occurred on the evening of May l3 prior to the grievor's next shift, scheduled for the next day, May 14. More problematic is the question as to whether the "telephone work" performed by the grievor in handling the SAC call constitutes being "called back to work". The Board does not regard the phrase 'icalled back to work" as requiring a physical retu~n to the Ministry office or the spill site In the Board's view, the language indicates that the employee is no longer free to carryon with his/her private life but must perform "work" for the employer For that disruption and inconvenience, the employee is entitled to call back paYi. In many instances, the performance of "work" will necessitate a return to the employer's premises. In the instant case, it is recognized that the ERP Officer is "working" when he/she handles a SAC call by telephone. The Board is not persuaded that the language of article l4 incorporates the "two trip" theory espoused in Webster or implicit in the language of the relevant provision considered by the arbitrator in LgQQ Moreover, the jurisprudence has not uniformly embraced the approach in Webster: see Shell Canada, supra, and Koncz, supra. The Board does not disagree with the conclusions reached in Gr<!lnt, supra, and Charette, supra, both of which dealt with article l4 - call back. The Board regards Grant as turning on . 9 the fact that the grievor therein had already arrived at work, albeit just prior to the scheduled commencement of his shift, when asked to perform a task The thrust of the jurisprudence on Qall back stressses that the work in question must not be contiguous to the employee's regular shift; the concomitant disruption in such instances is appropriately considered as overtime and compensated accordingly. In Charette, to have acceded to the union's argument, would have transformed all pre-scheduled overtime to call back. The reluctance to do so by the Board in that case is understandable given that the collective agreement provides for overtime as well as call back It is in that context that the Board views the comment that article 14 refers to archetypal call back situations. Finally, the Board deals \ . the argument of counsel for the W1.th Ministry that the ERP Officer is already compensated for being on- call or on stand-by and, thus, the further disruption inherent in attending at the Ministry office or the spill .. ~ . s1.te 1.S needed to trigger the call back provision. with respect, the Board does not agree. The ERP Officer is, indeed, compensated for the interference in hisjher private life occasioned by maintaining himself/herself at the degree of readiness required by stand-by or j on-call assignments. Receiving a SAC call and handling that call, whether over the telephone or by attending at the Ministry office or the spill site, represents an additional level of disruption and inconvenience in the Officer's private life. The ERP Officer is required to "work" in order to handle the SAC call Given the wording of article 14, the ERP Officer is entitled to call back pay for that work For the foregoing reasons, the Board finds that the grievor was entitled to be compensated on the basis set out in article l4 of the collective agreement for the time spent on the telephone in handling the SAC call on the evening of May 13. The Board directs that he be so compensated The Board remains seized with respect to any difficulties in the interpretation or implementation of this ~ ;" I. lO decision, including the calculation of the quantum of compensation in the event the parties are unable to agree. DATED this 15thOf November, 1993 c:Z-~ )' ~ , "I Dissent" (dissent to follow) Don Clark, M~mber I I I I'