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HomeMy WebLinkAbout1992-3364.Claydon&Tate.94-01-10 ~::-- '" ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 G~IEVANCE COMMISSION DE . .. ,. SETTLEMENT REGLEMENT .,. BOARD DES GRIEFS 180, DUNDAS STREET WEST SUITE 2100, TQRQNTQ, QNTARIQ M5G lZ8 TELEPHONE/TELEPHONE '(416) 326-1388 180, RUE DUNDAS QUEST BUREAU 2700 TORQNTo. (ONT4.RIO) M5G 7Z8 FACSIMILE ITELECOPIE (416) 326-1396 3364/92 IN THE MATTER OF AN ARBITRATION Under r THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Claydon/Tate) Grievor - and - The Crown in Right of ontario (Ministry of Revenue) Employer BEFORE H Finley Vice-Chairperson W Rannachan Member J Miles Member FOR THE M McKinnon GRIEVOR Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE P Young EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors HEARING August 5, 1993 . ~ ---- / ~ L -' ) GSB 3364/92 D E C I S I o N . The Grievors, Mr Jim Claydon and Mr Paul Tate, are Senior Property Assessors (PA4s) ~ssigned to Schedule A They work in the Assessment Department of the Ministry of Finance at its ottawa location which is one of 32 provincial Assessment Offices There are approximately 1,000 Pr~perty Assessors working out of these offices of which about 200 are PA4s According to the Employer, this group of employees has been assigned to Schedule A for at least 12 years According to the Union, their work is normally confined to regular office hours and is within the office, although they do testify at Assessment Review Board and Ontario Municipal Board hearings as required and participate in in-house Open Houses annually and off-site Open Hou~es every 3 or 4 years These are scheduled to run into the evening It was the overtime at the off-site Open Houses in the latter part of 1992 that triggered the grievances During the opeQ-house period, employees worked from 1200 to \ 2000 hours at the Open Houses and were given the option of working 0800 to 1200 hours as weIr (a 12 hour day) for the 3 to 4 \ week period Most elected to work the 12 hour day so they could check the sites to confi~m assessments ~n properties about which they had received queries on the previous day Under Schedule A, the Grievors could take the extra hours they had worked as straight lieu time somet ime before Ma~~h 31, 1993 and they didl so However, they concluded in December, 1992 that if they were in Schedule 3 J they could receive overtime under Article 7, that , compensation I lieu 13, that is, time and a half, as either or time The Grievors contend that they are "improperly placed in Schedule "A" Ii with respect to their hours of work and ask that ~i- ~ they be "reslotted" into Schedule 3 7, the same schedule to which the clerical staff in their division are assigned Further, they seek compensation for the overtime they claim they worked at Open Houses in November and December, 1~92 at time and a half with the \ option of either compensation or time off, rather than at straight time, the rate at which they were compensated Articles 7, Appendix 3, Schedule A, and Article 13 of the Collective Agreement are relevant and these follow ARTICLE 7 - HOURS OF WORK 7 1 SCHEDULE 3 AND 3 7 The normal 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 norma.l hours of wor.k for employees on these schedules shall be forty (40) hours per week and eight ( 8 ) hours per day ! 7 3 SCHEDULE 6 I Th,e normal hours of work for employees on I this schedule shall be a minimum of thirty- six and one-quarter (36-1/4) hours per week 7 4 SCHEDULE A Averaging of Hours of Work - see .Appendix 3 attached 7 5 Where the Employer adjusts the number of hours per week on a schedule, the employee" s weekly salary based on his basic hourly' rate shall be adjusted accordingly The adjustment will be discussed with the Union prior to such adjustment being made 7 6 Where the Employer intends to transfer employees or an employee from one schedule to another schedule, the Employer will discuss the transfer with the Union ~ . to such prlor transfer When the transfer occurs, the employee's weekly salary based on his basic 2 i; S hourly rate shall be adjusted accordingly -/ APPENDIX 3 SCHEDULE A AVERAGING OF HOURS OF WORK The number of hours of work per week prescribed shall be { computed as a weekly average over one ( 1 ) year, where the duties of a civil servant require - that he work more than the number of hours per week prescribed at regularly recurring time s of the year, or - that the number of hours per week be norma lly irregular Averaging Period The averaging period for each class and/or position - will conform to the twelve (12 ) month calendar period which reflects the work cycle of that class and/or position, and - will be reported to the bargaining agent Prorating Per iodsof employment of less than twelve (12) months in an averaging period (e g , due to appointment, transfer, separation, etc ) will be prorated Hours Per Averaging Period The hours of work required shall correspond to a thirty-six and one-quarter (36-1/4) hour week or a forty ( 40) hour week averaged over the twelve (12) month calendar period Changes to Hours P~r Averaging Period If at any time, a ministry requires a d i f fer.ent hours base for a class or for a position within a class (e g , equivalent of forty ( 40) hours per week instead of thirty-six and one-quarter (36-1/4) hours per week), the ministry must - alter the affected employees' salaries proportionately, and 3 m ,~ - -- notify the Employee Relatiol)s Branch, Management Board Secretariat, and the Union of any 'such J chang,es Record of Hours Worked A :r:e~ord will be maintained for each employee affected showing a running total of hours worked / ~ - on his regular working days, and - durirtg the av~raging period Excessive Buildup of Hours Worked When an employee's buildup of hourp worked is b~coming excess i ve,. he - may be required to take time off on an hour-for- hour basis, in order to bring his hour s accumulation into line with the hours requirement for the averaging period, and "- - will be given reasonable notice, where circumstances permit, of any such time of(f Calculation of Hourly Rate , In all cases, the basic hourly rate of pay for employees on averaging is to be determined by dividing the weekly rate of the class by thirty-six and I one- quarter (36-1/4) or forty (40 ) as applicable, unless the basic hoqrly r~te o~ pay already exists Hours Worked Over Annual Requirement At: the r end of the averaging per io-d, any excess hours standing to the employee's credi t over and above~ the annual hours r e qui r' e men t will be c;onsidered as overtime Normally; the employee shall be paid for his overtime credits Such payment shall be 'based on the basic ~ hourly rate he was receiving on the last day of the a v eJ: a gin g period Compensating time off may be substituted for payment of overtime credits as follows ~ (a) Where there is insufficient work for an employee to the extent that his presence is not required for a period of time, in which case - a ministry has the authority to direct that 4 '"\ ,. the empioyee take time off rather than receive pay for the overtime credits, and - such time off must be taken commencing during the first month of the next averaging period OR (b) In circumstances otHer than the above and where the employee and his supervisor mutually agree to compensating leave, in which case the time off will commence - within the first month of the next averaging peri9d, or - at an otherwise mutually satisfactory time Hours Worked on Holidays or Other Than Regular Workdays a) All hours worked on a holiday included under Article 48 (Holidays) shall be paid at the rate of two ( 2 ) times the basic hourly rate that the employee was receiving when the holiday was worked b) All hours worked on a day that is not a regular working day for the employee will be treated as overtime and based on the rate he was receiving when the overtime was worked ARTICLE 13 - OVERTIME 13 3 The overtime tate for the purposes of this Agreement shall be one and one-half (1-1/2) time the employee's basic hourly rate 13 2 1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met 13 2 2 In this ArtiCle, "overtime" means an authorized period of wor,k 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 5 'li' 13 3 1 Employees in 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 Failing agreement, the ministry shall reasonably determine the time of the I compensating leave 13 5 Where the r'e 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 I, 1978, the March 31 date may be extended by agreement at the local o~ ministry level 13 7 1 Employees who are in classifications assigned to Schedul~ 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 7 ( H 0 1 'i day P a yme n t ) , 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 As we 11 , Sections 18 and 19(1) of the Crown Employees Collective Bargaining Act, speak to the assignment of hours of 6 -- --- work They read as follows' 18 -(1) Every collective agreement shall be 'deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting th~ generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assiqnment. discipline, dismissal, s u s pen s io n , work methods and procedures, kinds and locations of equipment and classification of positioqs, and (b) merit s ys t em, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. (Emphasis added) ( 2 ) In addition to any other rights of grievance under a collective agreement, an embloyee claiming, (a) that his position has been improperly classified, (b) that he has been appraised contrary to the governing prinCiples and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under sectidn 19 Section 19 ( 1 ) reads as follows 19 -(1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a 7 "- matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlem~nt Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement Counsel for the Employ~r, Paul Young, raised a preliminary obj~ction with respect to the Board's jurisdiction and the parties agreed that the Board should render a decision on the preliminary matter before hearing evidence, shc;>uld that be required, on the substantive issue The Board accepted this \. \ procedure and the parties called no oral evidence but simply argued the preliminary issue M:r Young submitted that nothing in the Cr own EmploYees Collective Barqaining Act, Section 18(2) allows the grievance of assignment of hours of work, nor does Article 7 of the Collective Agreement give employees the right to grieve that assignment The right of assignment is given to the Employer, he submitted, and the only fetter on this right is that set out i n Ar tic Ie 7 6, supra, which obliges the Employer to discuss transfers with the Union Assignment does not requ.i re discussion Mr Young submitted that the case at hand should not be confused with an "overtime" case, since "the matter of overtime was an a.fterthought" and that the main issue is the request for retroact,ive reassignment or reslotting The case is not, he maintained, like a classification case which can be dealt with retr.oact i vely Mr Young referred the Board to GSB 198-202/82, OPSEU (Whitehead et all and the Crown in Ri<]ht of Ontario (Ministry of Natural Resources) (1982), Roberts (Vice-Chair) Mr Young argued that there is no distinction to be made between the case at hand and the Whitehead case on the grounds that the instant case deals 8 . -- with Schedule A wh i 1 e the Whitehead case deals with Schedule 6 Schedule A is not different from other schedules and should, Mr Young maintains, be treated like the others He drew the Board's attention to the Board's determination in the Whitehead case that i t ~had no jurisdiction to review the "administration" of the collective Agreement, wi-th respect to the initial assignment of an employee to an hours-of-work schedule, since this was an u.n f e t t ere d management right, unlt.mi ted .i n any way by the Collective Agreement. - He also pointed out that the Board in Whitehead concluded that in allocating individual employees to various hour-of- work schedules, the Employer is not, in fa c t , administering the provisions of Article 7 of the collective agreement and that the hours-of-work schedules in the Article [ 7 ) are descriptive, with no directional cbnte~t whatsoever [At page 7) Mr Young urged the Board to follow the decision in Whitehead Mary Mackinnon, Counsel for the Union, argued that the Board does have the jurisdi~tion to review the assignment of employees to certain schedules, or, in the a 1 t ern at i ve , to review the assignment to Schedule A for the purposes of overtime pay She acknowledged that Managem~nt has the right to assign employees to a certain schedule under Section 18 ( 1 ) of the Crown Employees Collective Barqaininq Act. supra, but submitted that this right is limited by the Collective Agreement, Append ix 3, Schedule A which sets out the test for employees whose hours of work are to be averaged She submitted also that Schedule A is set out very differently from the others Ms Mackinnon recognized that ~rticle 7 does not explain who will fit into various schedules (7 1 to 7 3), but, argued that Schedule A sets out the computing and explains who will fall within the scope of this Schedule The Union argued that it is wi thin the jurisdiction of the Board 9 to see if an employee falls within Schedule A The Board's jur isdiction, she submi tted, includes the interpretation of the language of the Collect i ve Agreement concerning the_employee' s work schedule, and the right to review the allocation for the purposes of overtime The Union takes the position that Management's right to allocate to the Schedule is fettered to the extent that the allocation must be undertaken fairly and that the Board has the jurisdiction to review the alLocation of the employee to a schedule on a standard of fairness The Union does not allege bad faith or discrimination on the part of the Employer Counse 1 for the Uni on re fer red the Board to GSB 2247/90 OPSEU (Leoaae) and the Crown in Right of Ontario (Ministry of the Environment) (1991), Verity (Vice Chair) and GSB 541/90,542/90, 543/90 OPSEU (Bousquet) and The Crown in Riqht of \ Ontario (Ministry of Natural. Resource~, 1991, Gorsky (Vice Chair) She directed the Board to the conclusion in Leoaqe, wherein the Board ruled that it had jurisdiction "to consider the interpretation of Schedule A We agree that it is not the function of the Grievance Settlement Board to transfer any employee from ~ne schedule to another Clearly that is within the jur isdiction of management. We do have jurisdiction, however, to determine whether the gr ievor is properly placed within the scope of Schedule A Having determined that she cannot fit within the language of that Schedule, then she must be enti tIed to remedy Accordingly this grievance must succeed [At pages l2 and 13] Ms Mackinnon also submitted that a limitation on the rights of management is implied when another right of the employee would be limited by management's exercise of its rights She referred to Bousquet, in this regard, at page 35 'l'hus, the significant fact required to place a 1 imi tation o~ the unfettered ~xercise of a management right is the existence of a provision in the collective agreement which would either be negated or unduly li~ited by a particular application of such right In the ins tan t cas e , the rig h tis 0 net 0 h-a ve 0 ve r time 10 ~_._--- ~ \ i compensated @ 1 5' under Article 13 and this right can be eliminated by the Employer's right to assign employees to schedules for this purpose Decision The Grievors have grieved that they are "improperly placed in Schedule "A" with regards to [their] hours of wor~n They were assigned to this Schedule at least 12 years ago and fr.om the time of their respective assignments until December, 1992 did not allege that the assignment was in any way inappropriate They- have asked for two remedies (a) "reslotting" (reassignment or transfer) to Schedule 3 7 (b) compensation or time for overtime incurred at Open Houses in November and December, 1992 to be calculated @ 1 5 (compensation or time) rather than @ 1 \ Mr Young argued that this was not an "overtime case" but an "assignment" case Counsel fo.r the Union presented the Union's position as one of ~eviewing the s cope of the averaging I application outline in Appendix 3, Schedule A, with respect to I the Grievors The Boar:d is of the opinion that the Grievors saw ^ reallocation as the vehicle for achieving their goals of increased overtime remuneration, in spite of the way in which the issue was presented in the originCjil grievances The Board does not intend to hold the Grievors to a standard of legal correctness in the framing of their grievances \ Section 18 ( 1 ) of the Crown Emoloyees Collective Barqaininq Act addresses the Employer's management rights with respect -to assignment, clearly and unambiguously \ 18 -(1) Every cqllective agreement shall be deemed to provide that it is the exclusive function of the employer to determine, " (a) assignment (b) 11 J and such matters will not be the subject of collective barga ining nor come within the jurisdiction of a board It also sets out 3 specified areas of exclusive Management function which an employee may grieve ( 2 ) In addition to any other rights of ~rievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified, I (b) that he has been appraised contrary to tl1e governing principles and standards, or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, Assignment to a schedule is not amongst these, nor is assignment to a schedule, a'n item which has been negotiated in the Collective Agreement The Board has concluded that it has no jurisdiction to consider the initial or continuing assignment of the Grievors to Schedule A, in the absence of bad faith, and/or jeopardy to the integrity of the bargaining unit, neither of which the Union is alleging This is in line with the finding of the Board, in Whitehead, suora in which the Board concluded that Unless fettered by the Collective Agreement the Employer remains free unilaterally to pe r fo.rm this allocation 'f unct i on This includes the freedom to a 1 t e.r its prior practise [sic] with :!:) e s pe c t to allocation to hours-of-work schedules, so long as it acts in good faith and does not jeopardize the integrity of the bargaining unit. There was no indication that the actions of the Employer with respect to the grievors herein were taken in bad faith In arriving at this conclusion, the Board found as well that no p r o,v i s ion of the Collective Agreement and no provision of the Crown Employees Collective Bargaining Act expressly gives an employee the right to grieve a decision by the Employer to allocate him or his class to a particular hours-of-work schedule [At page 9] 12 .- ,?$ ~ The criteria for allocation of employees to certain h04rs- of-work schedules are not part of the Collective Agree~ent, this activity being within the sole purview of the Employer Article 7 4 does not indicate the hours of work of employees which ake to allocated to ~hiS schedule Further, the Employer, in the Jpaqe matter, supra, at page 8 ma in ta ins that "averaging of hours of -work" does not apply to every employee in Schedule A and is simply a mechanism for those Schedule A employees required to work in that fashion This Board would agree that employees may be assigned to sch~dule A without fitting within the scope outlined in Appendix 3, I Schedule A and that in order to fit within that scopJ the employee must meet one nf the two criteria set out This i~, in the opinion of this Board, distinct from allocation to the schedule Indeed it occurs after allocation, only to those individuals assigned by the Employer to Schedule A ~he parties have agreed in Append ix 3, Schedule A, Averaging of HOU~S of ,I Work, on the nature of a Schedule 4 employee's hours of wo,k per week which will cause that individual's hours of work to be computed as a weekly average over one year The number of hours of work per week prescribed shall be computed as a week ly average over one (1) year) where the duties -of a civil servant tequire - tha-t he work more than the number of hour-s per week prescr i bed at regularly r~c::::urr ing times of the year, or - that ~he number of hours per week be normally irregular This Board has concluded that it does have the jurisdiction to review the question of whether or not the Gr ievors' dutie~ meet the above requirements given that the parties have agreJd, in their Collective Agreement, on the instances in which the averaging referred to will apply to Schedule A employees Therefore, the Board will resume hearing this matter, to 13 , 1!, ~~ ~ - deal with the substantive i 55 ue , on a date to be determined by I the Grievance Settlement Board Dated at Kingston, Ontario this 10th day of January, 1994. ~ ( /L~~~ - William S Rannachan, Member j c]~S~ber - , I ,- 14