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HomeMy WebLinkAbout1994-0734BERNARD97_12_09 ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (41tJ) 3~-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (41tJ) 32tJ-139fJ GSB # 734/94 OPSEU # 94A958-61 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bernard et al) . Grievor - and - the Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE N. Dissanayake Vice-Chair FOR THE J. Gilbert UNION Grievance Officer Ontario Public Service Employees Union FOR THE B Loewen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING September 30, 1997 2 DECISION On September 20, 1995 six individual grievances were scheduled for hearing before me As recorded in the decision dated October 13, 1995, at the commencement of the hearing the parties "agreed to adjourn sine die the grievances filed by Marlene Bernard, Theresa Gusek, Diane Kameda and Lori Lee Matheson, and to proceed only with the grievances of Julie Northcott and Sandra Ostman H The Northcott/Ostman grievances were heard and the decision was released on October 13, 1995 The Board concluded that "the employer contravened the collective agreement by failing to pay overtime rates to the two grievors for the hours worked in excess of 36-1/4 per week since they commenced their employment in the Dryden Fire Response Centre . The employer is directed to compensate the grievors accordingly, together with interest H An application filed by the employer for judicial review of this decision was dismissed by the Ontario Court of Justice (General Division) Divisional Court on February 3, 1997 On September 30, 1997 the 4 individual grievances which had been adjourned sine die, came back on for hearing before the Board There was a dispute between the parties as to how the Northcott/Ostman decision would impact upon these four grievances To put it simply, the Northcott/Ostman grievances included claims for overtime for work performed in classified positions as well under unclassified contracts While the employer resisted those grievances on other grounds, it did not make any distinction between overtime worked in classified positions and that performed under unclassified contracts The 3 Board allowed the grievances and ordered compensation with regard to all of the overtime The employer implemented the Board order to Northcott/Ostman It conceded that, having failed to argue that overtime pay did not arise with regard to unclassified hours in excess of 37-1/4, but less than 40 hours a week, it had waived its rights with regard to those two grievors However, with regard to the 4 present grievances the employer sought to raise that argument, which it had failed to raise in the Northcott/Ostman grievances . The union disagreed with the employer's position on the merits However, the union submitted that the Board ought not hear the merits of that argument in the first place It was the union's position that the employer, having failed to draw any distinction between overtime entitlement for classified versus unclassified work in the Northcott/Ostman grievances, should not be allowed to do so in relation to these 4 grievances PRELIMINARY ISSUE The union pointed to the fact that as a result of the employer's failure to draw any distinction between the method of calculating overtime for classified versus unclassified work, Northcott and Ostman received overtime pay for all of their hours in excess of 37-1/4 Mr Gilbert pointed out that all six grievances were filed around the same time and raised the same claim The union agreed to proceed only with the Northcott and Ostman grievances expecting that the Board's decision would be used by the parties to resolve the other 4 grievances He argued that if these 4 -- 4 grievors are not paid overtime on the same basis as the first two grievors, that would result in unfairness and consequently create morale problems in the workplace He submitted that unless the Board forces the employer to apply the Northcott/Ostman result to the remaining 4 grievors, it would discourage the practice of litigating representative grievances and applying the result to resolve other similar grievances It would result in litigation of every grievance Mr Gilbert argued further that by not raising the argument in the Northcott/Ostman hearing, the employer had waived its right to make that argument It was submitted that the employer had further waived its rights . by not raising this argument during the grievance procedure Counsel also made passing reference to estoppel and res judicata The employer emphasized that what the Board had before it were individual grievances by 6 grievors The employer had not made any representation or undertaking that it would apply the Board's decision in Northcott/Ostman to any of the other grievances Those were adjourned sine die and had now come on for hearing The employer should not, in these circumstances, be precluded from asserting a right under the collective agreement with regard to these grievances merely because it had not done so in the two earlier grievances Although no evidence was led in support, there is no reason to doubt Mr Gilbert's assertion that, as union representative, he expected that once the Northcott/Ostman decision was obtained, the parties would be able to resolve the other 4 grievances on the same basis That indeed would have been a logical and reasonable expectation However, the Board cannot 5 help but conclude that it is not an expectation which can be enforced on any of the grounds put forward by the union Res Judicata cannot apply to these 4 grievances because they were not heard by the Board On the contrary, they were expressly adjourned sine die Estoppel cannot come into play because the union does not claim that the employer made any representation, in writing or even verbally, that it was agreeing to resolve these 4 grievances in accordance with the decision in the first 2 grievances Nor has the union established any detrimental reliance Similarly, waiver is a concept that the Board applies with regard to procedural defects The employer here is raising a legal . argument with regard to a substantive right. A party is entitled to do so at a hearing before the Board, whether or not such an argument had been made during the grievance procedure While the Board understands the union's argument that it is unfair to deny these 4 grievors the same benefits as those given to Northcott and Ostman, that does not empower the Board to preclude the employer from asserting that under the collective agreement it had no obligation to pay overtime to those Grievor's for certain type of work Therefore that issue must be determined on its merits MERITS The employer's basic position is that under the terms of the collective agreement read together with the Public Service Act, the rules for determining overtime pay entitlement are different for unclassified employees than for classified employees Based on that argument, it is contended that these 4 grievors are entitled to overtime, for work .,. 6 performed in an unclassified position, only if they worked in excess of the normal hours specified in the applicable unclassified contract, i e 40 hours per week Appointments to Unclassified Staff Group 3 Seasonal contracts ("unclassified contracts") for each of the grievors were filed. Each contract specifies that "The hours of work will normally be 40 hours per week" (One says "8 hours per day") In addition the parties relied on the fOllowing provisions Public Service Act 1 In this Act, "civil servant" means a person appointed to. the service of the Crown by the Lieutenant Governor in Council on the certificate of the Commission or by the Commission, and "civil service" has a corresponding meaning; "classified service" means the part of the public service to which civil servants are appointed; "unclassified service" means the part of the public service that is composed of positions to which persons are appointed by a minister under this Act 8 1 (1) An individual is not considered to be a civil servant unless he or she has been expressly appointed as such by the Commission or by the Lieutenant Governor in Council on the certificate of the Commission 7 Regulation 977 under The Public Service Act 1 (1) In this Regulation, "regularly scheduled hours of work", in the case of a full-time employee, means the hours of work per week prescribed for a classification by subsection 9 (1) and, in the case of a part-time employee to whom clause 9 (4 ) (a) applies, means the hours or, in the case of a part-time employee to whom clause 9 (4) (b) applies, means the number of full days in four consecutive weeks specified for the position 6 (1) The unclassified service consists of employees who are employed under individual contracts in which the terms of employment are set out and is divided into, . (c) Group 3 consisting of employees appointed on a seasonal basis for period of least eight consecutive wee ks but less than twelve consecutive months to an annually recurring position where the contract provides that the employee is to work either 36-1/4 hours per week or 40 hours per week; 9 (1) The hours of work per week which shall be performed by civil servants of the classifications set out, (a) in Schedule 3, shall be 36-1/4 hours; (b) in Schedule 4, shall be 40 hours; (c) in Schedule 5, shall vary in accordance with the requirements of the position but shall not be less than 36-1/4 or greater than 40 hours; and 8 (d) in Schedule 6, shall vary in accordance with the requirements of the classification but shall not be less than 36-1/4 hours Collective Agreement 3 1 The only terms of this Agreement that apply to employees who are not civil servants are those that are set out in this Article 3 2 Sections 3 3 to 3 16 apply only to unclassified staff other than seasonal employees 3 17 sections 3 18 to 3 37 apply only to seasonal employees 3 16 A seasonal employee is an employee appointed for a period of at least eight (8 ) consecutive weeks to an annually recurring full-time position in the unclassified service in a ministry For purposes of this definition full-time means a minimum of thirty six and one quarter (36-1/4) or forty (40) hours per week, as applicable 3 23 2 In this section "overtime" 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 3 37 The following articles shall also apply to seasonal employees Articles A 1, 4 1, 4 4, 6, 9, 11, 12, 15, 16, 17, 18 5, 21, 22, 23, 27, 29, 32, 33, 34,35, 36 nd 86 9 It is common ground that these 4 grievors were seasonal employees The dispute relates to their entitlement for overtime for work performed in unclassified positions The union claims overtime for hours in excess of 36-1/4 per week The employer contends that since by their contracts their normal weekly hours were specified to be 40 hours, no overtime was payable because they did not work in excess of 40 hour per week DECISION The parties urge very different conclusions based on the applicable provisions of the Act, the regulations and the collective agreement Having carefully considered he respective submissions I have concluded that . the appropriate interpretations are as follows There is no dispute that unclassified employees are not civil servants and are not part of the civil service section 6 (1) of the Regulations does two things First, it defines the unclassified service as consisting of "employees who are employed under individual contracts in which the terms of employment are set out" Second, it divides the unclassified service into 4 groups and defines each group. The grievors were appointed to group 3 of the unclassified service, which according to S 6 (1) (c) means that they work "either 36-1/4 hours per week or 40 hours per week" The collective agreement draws a clear distinction between the terms and conditions of employment of classified employees and that of unclassified employees Article 3 1 states that the only terms of the agreement that apply to employees who are not civil servants (classified employees) are those in article 3 Moreover, the collective agreement ~o draws a distinction between seasonal employees and other unclassified employees Not all of article 3 applies to unclassified seasonal employees Only articles 3 18 to 3 37 and the articles specifically set out in article 3 37 apply to them Article 3 23 contains the provisions relating to overtime that govern seasonal employees Article 3 23 2 in part defines "overtime" as "an authorized period of work performed on a scheduled working day in addition to the regular working period" (Emphasis added) The answer to the dispute hinges on whether, the four grievors, when . they worked 40 hours per week under a group 3 seasonal unclassified contract, worked any hours in addition to their "regular working period" That in turn raises the question, what was their "regular working period"? The collective agreement contains a number of provisions relating to overtime in article 13 However, that is not one of the articles that apply to seasonal unclassified employees Regulation S 9(1) sets out the hours of work per week for the classifications in the various schedules However, that provision is explicitly limited to hours of work performed by civil servants, which the grievors were not when employed as unclassified seasonal employees The provision in the Regulations that does address the issue of hours of work of unclassified seasonal employees is S 6(1)(C) which provides that Group 3 employees appointed on a seasonal basis, (which these grievors 11 were) work under a contract which "provides that the employee is to work either 36-1/4 hours per week or 40 hours per week" In turn, the collective agreement defines the hours of work of a full-time unclassified seasonal employee as meaning " a minimum of thirty six and one quarter (36-1/4) or forty (40) hours per week, as applicable" (Emphasis added) The Board does not accept the union's argument that the phrase "as applicable" in article 3 18 is a reference to a corresponding schedule in S 9 (1) of the Regulations As noted, S 9(1) is explicitly limited in . by definition, application to civil servants Seasonal employees, are not civil servants If the parties intended in a provision dealing specifically with seasonal employees to cross reference to a provision of the Regulation which clearly did not apply to seasonal employees, they would have done so in much clearer and explicit language On the other hand, there is a more logical and rational explanation for the use of the phrase "as applicable" In the Board view, that phrase is a direct reference to the hours of work of seasonal employees set out in S 6 (1) (e) of the Regulations That section recognizes that a contract for a Group 3 seasonal employee may provide for either 36-1/4 hour per week ~ 40 hours per week In the Board's view, the reference in article 3 18 to "a minimum of 36-1/4 or 40 hours per week, as applicable" is a reference to the two types of contracts recognized in S 6(1) (C) of the Regulations The outcome of all of the foregoing is as follows Under article 3 23 2 seasonal employees are entitled to overtime only for work performed 12 on a scheduled working day "in addition to the regular working periodu The regular working period of a seasonal employee in accordance with article 3 18 depends on whether the particular employee was appointed to a contract specifying 36-1/4 hours per week or 40 hours per week An employee is entitled to overtime pay on a scheduled working day only for hours worked in addition to the regular working period as specified in his or her own contract In the case at hand, the grievors' contracts explicitly specified the normal hours to 40 a week That would be their regular working period If, while working under these contracts, the grievors did not work beyond . 40 hours per week, they would not be entitled to overtime Because no evidence was led, it is not clear to the Board what exact hours were performed by each grievor and which of those hours were performed under Group 3 seasonal unclassified contracts It is hoped that the parties would be able to agree upon the entitlements to overtime if any, of each grievor, in accordance with his decision However, if any disputes should arise, the Board remains seized in order to deal with them Dated this9thday of December, 1997 at Hamilton, ontario ~~~~J: "-- "/ N Dissanaya~ Vice-Chairperson