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HomeMy WebLinkAbout1995-1603LANE98_10_23 ONTARIO EMPLOY~S 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 TELEPHONE/TELEPHONE (416) 326-1388 180,RUEDUNDAS OUEST BUREAU600, TORONTO (ON) M5G tZ8 FACSIMILE/TELECOPIE (416) 326-13g(J GSB # 1603/95, 1290/96 OPSEU 95G207, 96D879 . IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACf Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Uruon (Dan Lane) Grievor - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer EFORE Owen V Gray Vice-Chair FOR THE Cameron Walker GRIEVOR Grievance Officer Ontano Public ServIce Employees Union FOR THE Aileen Cassells EMPLOYER Employee Relations AdVIser Employee RelatlOns Unit Human Resources Branch Ministry of Community and Social Servtces HEARING July 16, 1998 DECISION [1] Dan Lane was an unclassIfied employee for 16 months before he was ap- . pomted to the classIfied servIce m 1991 He and the umon assert that the em- ployer has Improperly calculated ills contmuous servIce date under what IS now ArtIcle 18 1(b) of the partIes' current collectIve agreement. That artIcle provIdes as follows ARTICLE 18 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 18.1 An employee's length of contmuous servIce will accumulate upon completIOn of a probatIOnary penod of not more than nme (9) months and shall commence. (b) from the date estabhshed by addmg the actual number of full tune weeks worked by a full tune unclassuied employee durmg hIS full tune employment back to the first break m employment whIch IS greater than thrrteen (13) weeks, "full tune" IS contmuous employment as set out m the hours of work schedules for the appropnate classuicatIOns, [2] The questIOns WIth whIch the partIes WIsh me to deal m thIS deCISIOn fo- cus on a perIod m 1990 and 1991 durmg whIch the grIevor was employed as a casual unclaSSIfied employee pursuant to contracts whIch prOVIded that he would be employed for up to 40 hours per week. At Issue IS whether certam weeks m 1990 and 1991 were "full-time weeks worked" for whIch the grIevor IS entitled to credIt pursuant to ArtIcle 18 1(b) In dIspute are weeks durmg WhICh a) the grIevor was scheduled to work 40 hours m the week but was paId for less than 40 hours because he arrIved late for work one day; b) the grIevor was scheduled to work 40 hours m the week but was paId for less than 40 hours because he was SIck or left early one day due to Illness, or, 2 c) the gnevor was scheduled to work and dId work five dlstmct 8 hour shIfts but got paId at the overtime rate for all or part of one those ShIfts because It began less than 24 hours after the begmrung of the prevlOUS shIft, wIth the result that the number of hours for whlCh he was paId at the regular rate was less than 40 One of the }ssues m dIspute about dyas or hours not worked due to Illness IS whether the gnevor was or IS entitled under what was formerly ArtIcle 38 1 to have attendance credIts applIed so as to quahfy to have them treated as though they had been worked. ArtIcle 3 8 1 provIded, m part, as follows 38.1 Employees who work thrrty.sIX and one-quarter (36~) or forty (40) hours per week shall earn attendance credIts of one and one-quarter (l~) days for each calendar month of full attendance or for each calendar month of leave-of absence granted under SectIOn 3 9 Attendance crechts may be used for protectIOn purposes only m the event that an employee IS unable to attend to hIS offiCIal dutIes by reason of illness or mJury Facts [3] Before the hearmgs began, the partIes agreed on the followmg facts 1) The partIes agree to the followmg facts for the purpose of the arbItratIOn of Mr Dan Lane s grIevances dated August 7 1995 (OPSEU #95G207, GSB 1603/95) and May 2,1996 OPSEU #96D879; GSB 1290/96) 2) Mr Lane IS a Youth Worker classIfied as a CorrectIOnal Officer 2 employed by the MmIstry of Commumty and SOCIal ServIces at Syl Apps Youth Centre. 3) The partIes agree that the grIevor's employment hIStOry IS as follows a) June 13, 1990 September 30, 1990 UnclassIfied Casual b) October 1, 1990 March 31, 1991 UnclassIfied Casual c) March 11, 1991 March 31, 1991 UnclassIfied Full Time d) Apru1, 1991 September 30, 1991 UnclassIfied Full Time e) October 1, 1991 October 13 1991 UnclassIfied Full Time f) October 14, 1991 to present ClassIfied Full Time 4) The gnevor's contmuous servIce date estabhshed by the MmIstry of Commumty and SOCIal ServIces prIor to the deCISIOn m Scott et al. GSB 1434/96 was September 21, 1990 5) The employer calculated the contmuous servIce date prIor to Scott et al. to mclude 25 full tune weeks worked durmg the two unclassIfied casual contracts described m (a) and (b) above and to mclude all tune worked m the three unclassIfied full tune contracts. - 3 6) On February 15, 1993, the umon and management at Syl Apps sIgned Millutes of Settlement agreemg to credIt employees who are ill Irregular unclassIfied contract WIth 125 attendance credIts for each calendar month where employees worked a millrmum of 160 regular non-overtrme hours ill each calendar month retroactIve to April 1, 1992 or to pay the employee for the accumulated credIts at the rate of 50%. 7) The partIes agree that the Issues related to the apphcatlOn of overtrme, the rmpact of attendance credIts and SIck leave, and the Issue of 'late arnvals' ill determmillg the employee's contmuous selVIce date are still outstandIng. After the hearIng began, the partIes agreed on the addItIOnal facts set out in the follOWIng paragraphs [4] In 1987, the umon and management at Syl Apps entered Into mInutes of settlement that prOVIded that effective Apnl 1, 1987, the Employer at the Syl Apps Campus would pay 1Y2 times the baSIC hourly rate to "part time casual CorrectIOnal Officers for all hours worked In excess of eIght (8) In a work day" [5] The partIes' collectIve agreement for the perIOd January 1, 1989 to De- cember 31, 1991 made thIS provISIOn for overtIme for unclaSSIfied staff: 3 4 One and one-half (1 %) tImes the baSIC hourly rate shall be paid for authOrIzed hours of work performed. (a) ill excess of seven and one-quarter (7V.) or eIght (8) hours per day, as apphcable, where employees work a regular thIrty-SIX and one- quarter (36V.) or forty (40) hour work week, as apphcable, or (b) ill excess of the scheduled hours for employees who work on a regularly scheduled work day exceedIng eight (8) hours, or (c) ill excess of the employees' regularly scheduled work week, or (d) ill excess of thIrty-SIX and one-quarter (36V.) or forty (40) hours per week where employees do not have regularly scheduled work days. [6] In 1990 and 1991 the employer Interpreted and applIed the preVIOusly mentIOned 1987 settlement at the Syl Apps Campus In such a way that If a cas- ual unclaSSIfied employee worked a shIft that started less than 24 hours after the begInmng of hIS or her prevIOUS shIft, the employee would paId for that en- tire second shIft at the overtIme rate To better understand thIS, I asked about the follOWIng hypothetical work schedule Day Sched uled shIft - 4 - Monday 8 00 a.m. to 4.00 p.m. Tuesday 400 pm. to 12.00 p.m. Wednesday 4 00 p.m. to 12 00 p m. Thursday 8.00 a.m. to 4'00 p.m. Friday 800 a.m. to 4'00 p.m. Although thIS schedule does not mvolve workmg more than 8 hours on any cal- endar day, nor m any of the succeSSIve 24 hour periods commencmg wIth the be- gmnmg of the first shIft, the partIes agreed that a casual unclassIfied employee at Syl Apps who worked tills schedule would have been paId for the entIre Thursday shIft at the overtIme rate because that shIft starts less than 24 hours after the begmnmg of the Wednesday sluft. [7] For the pay period July 20 to 26, 1990, the grIevor receIved 36 5 hours' pay at the regular rate and 9 hours' pay at the overtIme rate. EIght of the nme hours for whIch he receIved pay at the overtIme rate mvolved a dIstmct shIft worked on July 22, 1990, a perIOd not contIguous m tIme wIth any of the periods for willch he receIved pay at the regular rate The employer paId for all of that 8 hour shIft at the overtIme rate because the shIft began less than 24 hours after the begmnmg of the grIevor's prevIOUS shIft, and It felt oblIged to pay for those hours at the overtIme rate by VIrtue of the 1987 settlement. In thIS and other m- stances m whIch a dIstmct work shIft attracted an overtIme rate because of Its tImmg, the employer takes the posItIOn that shIft cannot be counted m deter- mmmg whether the week was a "full tIme" week "worked" for purposes of ArtIcle 18 1, that the only hours that can be counted are hours paId for at the regular rate [8] For the pay period July 27 to August 2, 1990, the grIevor receIved 39 hours' pay at the regular rate and 8 hours' pay at the overtIme rate The grIevor had been scheduled to work five 8 hour shIfts that week. On July 27, 1990, how- ever, he was one hour late for hIS scheduled shIft. He was not paId for that hour and, thus, only receIved 39 hours' pay for hIS first five shIfts that week. The eIght hours for whIch he receIved pay at the overtIme rate mvolved a separate atten- dance at work on August 1, a period not contIguous m tIme wIth any of the peri - 5 - ods for which he received pay at the regular rate The employer paid for all of that 8 hour shIft at the overtime rate because the shIft began less than 24 hours after the begmnmg of hIS prevIOUS shift. [9] For the pay penod September 14 to 20, 1990, the gnevor received 32 hours' pay at the regular rate and 21 hours' pay at the overtime rate The gnevor worked SIX ~hstmct shifts of 8 hours (or more) that week. Two of them - the shifts on September 16 and 20 - were paid for at the overtime rate because they began less than 24 hours after the begmnmg of the prevIOUS shift. [10] For the pay penod September 21 to 27, 1990, the gnevor received 39 hours' pay at the regular rate and 16 hours' pay at the overtime rate The grlevor had been scheduled to work five 8 hour shifts that week. On September 21, 1990, he was one hour late for hIS scheduled 8 hour shIft. He was not paId for that hour The additional 8 hour shift he worked on September 24 was all paid for at the overtime rate because It began less than 24 hours after the begmmng of hIS prevIOUS shift. [11] The gnevor was scheduled to work 40 hours m the pay penod November 23 to 29, 1990 He was sick on November 25, and did not work the 8 hour shift for which he was scheduled that day HIs pay for that pay penod consisted of 32 hours' pay at the regular rate The employer was not gIvmg casual unclassified employees attendance credIts at that time If It had been, the grIevor would have drawn on attendance credits and been paid for 40 hours that week. [12] In the pay penod January 11 to 17, 1991, the gnevor worked 8 hours on each of the first four days, January 11 through 14, mclusIve He was scheduled to work 8 hours on February 16 He called m sick, but was asked to come m anyway He went m late and left early that day because he was sick. He only worked 5 hours that day, for a total of 37 hours for the week. [13] In calculatmg the gnevor's contmuous service date, the employer con- cluded that the weeks referred to m paragraphs [7] through [12] were not weeks for which credit should be given. - 6 - [14] The umon ImtIally took the posItIOn that the grIevor should have been gIven credIt for workmg a "full tIme" week m the pay perIod January 25 to 31, 1991, m WhICh the grIevor was paId for 32 hours at the regular rate and 9 hours at the overtIme rate When the partIes revIewed the nature of the overtIme for thIS week, however, they concluded that thIs was not one of the occaSIOns when the grIevor was paId at the overtIme rate for all of a dIstmct 8 hour shIft by rea- . son only of ItS havmg started less than 24 hours after the begmmng of the preVI- ous shIft. The partIes IdentIfied only five occaSIOns on whIch that occurred. Those five occaSIOns are described m paragraphs [7] through [10] (mclusIve) above [15] The umon grIevance that was settled as mdIcated m subparagraph 6) of paragraph [4] above was dated May 28, 1992 It alleged that "Employer IS m vIOlatIOn of ArtIcle 3 8 1" and described the settlement desIred as follows Employer comply WIth the terms of the Collective Agreement. Employees are compensated retroactIvely where non-comphance has resulted ill demal of SIck leave credIts. Argument [16] The umon argued that someone who works five dIstmct shIfts of 8 hours each m a week has worked a "full-time" week, whether or not some of those hours attract a premIUm pay rate The employer argued that the only hours worked that can count toward a "full time" week are those for whIch the normal hourly rate IS paId. Reference was made to the GSB's deCISIOns m Parent, 1207/89 (deCISIOn dated March 7, 1990, Knopf), Morton, 2520/91 (deCISIOn dated June 16, 1993, Barrett) and Scott et al, 1434/96 (deCISIon dated AprIl 2, 1997, Gray) [17] With respect to hours not worked because the grIevor was SIck, the umon argued that the grIevor was entitled to attendance credIts whIch could and should have been applIed so that they would be treated as though he had worked those hours The employer submItted that the settlement of February 15, 1993 precludes gIVmg the grIevor any attendance credIts for 1990 and 1991 because - 7 the partIes agreed that attendance credIts would only be gIven retroactlve to Apnl 1, 1992 The umon responded that the settlement does not stand m the gnevor's way because It only covered the penod from Apnll, 1992 forward [18] WIth respect to the hours not worked because the gnevor was late for work, the umon argued that when the grIevor was scheduled to work five 8 hour shIfts m the"week he should not be deprIved of the credIt for that full-tlme week merely because he was an hour late for work. The employer submItted that "full- tIme weeks worked" means weeks durmg whIch a full 40 regular (non-overtIme) hours are worked. It IS not enough that the grIevor was scheduled to work the reqUIsIte hours, It argued, If he dId not work them. The employer cIted the deCI SIOn m Unwn Gnevance, 2875/96 (decIsIOn dated Apn116, 1997, DIssanayake) Decision [19] When the grIevor was appomted to the classIfied servIce m 1991, the cal- culatIOn of hIS contmuous servIce date would have been governed by ArtIcle 25 1 of the cOllectlve agreement then m effect. It prOVIded, m relevant part, as follows 25 1 An employee s length of contmuous servIce will accumulate upon completIOn of a probatIOnary penod of not more than one (1) year and shall commence (b) from the date on whIch an employee commences a penod of unbroken, full time servIce m the publIc servIce, unmedIately pnor to appomtment to the ClassIfied ServIce, "Unbroken servIce" IS that whIch IS not mterrupted by separatIOn from the publIc servIce, "full tune" IS contmuous employment as set out m the hours of work schedules for the appropnate classIficatIOns That language was conSIdered m Pltfield, 2564/91 (decIsIOn dated December 14, 1992, Venty), where the Board observed that The aun of Article 25 l(b) of the collectIve agreement IS to equate full time employment m the unclassIfied servIce WIth the regular hours of work of a classIfied employee m order to determme length of contmuous servICe. It IS an eqUItable conceSSIOn, we thmk, to equate full tune unclassIfied employees, m thIS case those workmg 40 hours per week, WIth full tune classIfied employees for the purposes of semonty If the partIes had mtended to mclude - 8 - any employee regardless of hours worked m the unclassIfied servIce, they could have saId It m a sentence The drafting of a collectIve agreement mvolves the drawmg of lmes. In thIS case, we are of the opmIOn that, for the purposes of length of contmuous servIce, the lme IS drawn from the date that an employee "commences a penod of unbroken full trme service in the public service, immediately pnor to appomtment to the ClassIfied ServIce" Unfortunately for the representatIve grievor, he dIdn't come wIthm the lme masmuch as he worked 32 hours durmg the week pnor to hIS appomtment to the classIfied servIce, whIch; of course, does not constItute full trme seIVIce. [20] In Morton, 2520/91 (June 16, 1993, Barrett), the grIevor claImed that he should have been gIven credIt for SIX months of full time servIce pursuant to Ar- tIcle 25 1(b) because durmg the SIX months Immediately prIor to hIS appomtment to the classIfied servIce he worked an average of 40 hours per-week "If overtIme hours were counted m." Mr Morton's unclassIfied contracts specIfied that he was to work "as requITed part trme up to 40 hours per week" He testIfied that he was called m on an lITegular baSIS to work anywhere from 28 to 64 hours per week covermg for classIfied staff who were SIck, on vacatIOn, or on trammg courses. Sometrmes he was scheduled to work one or two days m advance, at other trmes he was called m at the last mmute He worked anywhere from 4 to 16 hours per day dependmg on need. When management determmed Mr Morton's semonty date pursuant to ArtIcle 25 1(b), It looked at the number of weeks rmmedIately precedmg the appomtment to the classIfied staff m whICh Mr Morton had worked 40 regular hours not mcludmg overtrme. He had worked 40 regular hours' for five weeks rmmedIately precedIng hIS classIfied appomtment. The SIXth week back he had worked only 32 regular hours, so management looked no further to determme the date of hIS "full trme contmuous employment" The Board adopted the reasonmg m PItfield, WhICh supported the employer's methodology m calculatmg the grIevor's contmuous servIce date It added the followmg observatIOns about "regular" and "overtIme" hours We do not accept the alternatIve argument of the employer that because Mr Morton was on a part trme contract, he cannot gam any advantage at all from ArtIcle 25 1(b) If an employee works the regular full trme hours of hIS or her eqUIvalent CIVll seIVIce classIficatIOn, even though on a part trme contract, he or she should be credIted WIth those contmuous weeks of servIce for the purpose of determmmg semonty We also reject the submISSion of the umon that overtrme hours and monthly averagmg of hours can be used to constItute "full trme seIVIce" m the face of a very clear defmItIOn of full trme" contamed m ArtIcle 25.1 - 9 [21] When the partIes negotIated theIr collectIve agreement for the penod January 1, 1992 to December 31, 1993, they amended ArtIcle 25 1(b) to read 25 1 EffectIve February 3, 1992, an employee's length of contmuous servIce will accumulate upon completIOn of a probatIOnary penod of not more than nme (9) months and shall commence . (b) effectIve January 1, 1992, from the date estabhshed by addIng the actual number of full trme weeks worked by a full trme unclassuied employee durmg hIS full trme employment back to the fIrst break m employment whIch IS greater than thIrteen (13) weeks, ThIs new language apphed only to someone appomted to the classIfied servIce after It took effect. Those who had been appomted pnor to 1992, hke the gnevor, could not then take advantage of thIs potentIally more generous credIt It pro- VIded for pre-appomtment unclassIfied servIce ThIS new language was carned over unchanged mto the partIes' memorandum of settlement of March 29, 1996 concermng the terms of the partIes' 1994/98 collectIve agreement. On May 23, 1996, however, the employer and the umon entered mto an agreement whIch provIded, m part, that 1 The partIes agree that the prmcIples of ArtIcle 25 1(b) shall apply m cases of GO Temp employees appomted to the classIfied staff. 2. The partIes agree that ArtIcle 25 1(b) apphes to all employees IrreSpectIVe of date of appomtment to the classuied seIVIce. At some time after that, the partIes prepared a revIsed document m whIch the prOVISIOns of the partIes' 1996 memorandum of settlement have been rearranged, renumbered and otherwIse edIted to form collective agreement documents that the partIes agreed would be the offiCIal, effective verSIOns as of February 17, 1997 ArtIcle 181m the new document reflects the results of the amendmg agreement on what was formerly ArtIcle 25 1 [22] In Unwn Gnevance, 2875/96, the umon complamed that despIte the agreement of May 23, 1996, claSSIfied employees were not gettmg the same credIt for pnor GO-Temp servICe as were gIven for other unclassIfied servIce The - 10 - dIfference was wIth respect to absences due to Illness The employer had taken the posltlOn that days on whlCh a GO-Temp was scheduled to work but dId not work due to Illness dId not count m determmmg whether he or she had worked a "full-tIme" week that week for purposes of ArtIcle 18 1 It had, however, counted such days as days "worked" for unclassIfied employees whose claIm to atten- dance credIts It had recogmzed. The employer's acknowledgement and explana- . bon of thIS dIfference are set out at pages 5 and 6 of the decIslOn. The employer concedes that It treats an employee JOillillg the classuied servIce from prIor unclassrlied servIce chfferently than an employee JOillmg after a perIod of employment ill the unclassIfied servIce Thus an absence due to sIckness durillg the perIod of employment ill the unclassIfied servIce does not result ill the dunillIshmg of the calculatIOn of the penod of servIce. The employer argues that thIS chfferent result for unclassrlied employees, ill contrast to Go Temp employees, flows from the nature of the rIghts of the two groups under the collectIve agreement. The employer pOilltS out that unclassIfied employees, under article 31 are entitled to accumulate SIck leave credIts to be used when SIckness prevents them from attendmg work. An unclassuied employee usmg SIck leave credIts IS paId regular wages despIte the absence Thus, the argument goes despIte the absence due to SIckness the employee ill effect IS deemed to have actually worked on the day m questIOn. Therefore that absence does not result m the employee workillg less than full tIme hours durmg the week. In contrast, Go Temp employees who do not actually work due to SIckness, are not deemed to have worked on those days. They are not entItled under the collective agreement to earn any SIck leave credIts and are not entItled to be pmd on days they are absent due to SIckness. Therefore, when a Go Temp IS absent due to sIckness even on a smgle day hIS weekly hours fall below the full tIme level and that week IS not ehgible for conSIderatIOn under artIcle 18.1(b) After revIewmg the P~tfield decIslOn, the Board noted (at page 10) that WhIle the language of artIcle 18. 1 (b) IS chfferent to [SIC] that of artIcle 25 1(b) conSIdered m Re PItfield the Board's observatIons about the defillItIon of "Full trme" are still vahd because that defimtIOn remams unchanged. ArtIcle 18 1(b) contemplates the addItIOn only of full trme weeks worked" ill order to estabhsh a semorIty date The defuutIOn of "Full trme" means that a week can be conSIdered full trme" only where the employee has worked the number of hours specuied for the partIcular classrlicatIOn m the hours of work schedules. The Board reJected the umon's argument that those WIth prior Go-Temp servIce were entItled to the same treatment as those WIth other unclaSSIfied servIce WIth -11 respect to days not worked due to sIckness It found that the dIfference m treat ment was warranted by the language of the collectIve agreement. A Go-Temp employee does not accumulate sIck leave credIts and IS not paId durmg an absence due to SIckness. Therefore, there IS no room for deemmg, even notIOnally, that the employee worked on such a day In contrast, unclassIfied employees are sItuated drlIerently under the collectIVe agreement. They do accumulate SIck leave credIts and when they use an earned SIck cremt on a day of absence, they are deemed to be at work and are paId theIr wages as u they were at work. Thus despIte an absence due to SIckness, the employee's hours for the week do not get reduced below full tune hours. The Board concludes that thIS drlIerence m result on an apphcatIOn of artIcle 18. 1 (b) IS one dIctated by the collectIve agreement and that the employer has not contravened the collectIve agreement. The umon s alternate argument, m my opmIOn, must also fau. ArtIcle 18. 1 (b) contemplates the addItIOn of weeks. The calculatIOn IS to be done m terms of weeks and not of days. Only "full tune weeks", l.e weeks m whIch the employee works full tune hours, are to be added. Thus where an employee does not work full tune hours m a partIcular week, either m fact or notIonally, that week may not be added m calculatmg the semorIty date under artIcle 18. 1 (b) [23] The deCISIOn m Unwn Gnevance, supra, IS the only one CIted to me m whIch reference IS made to a practice of treatmg hours scheduled but not worked as though they were hours worked for purposes of ArtIcle 18 1(b) The practIce described IS that hours scheduled but not worked due to Illness are treated as though they were worked, but only If attendance credIts were avaIlable and ap- phed to protect the affected employee's mcome It appears, m other words, that hours pmd for as a result of the apphcatIOn of attendance credIts are bemg treated as though they were hours worked for purposes of applymg ArtIcle 18 1(b) [24] I note that the followmg passage from Parent, 1207/89 (deCISIOn dated March 7, 1990, Knopf), describes an employer practIce whIch seems to dIffer from what was described m Umon Gnevance, supra. Rand L were CIted as havmg worked as Go-Temps, then entered the classuied servIce and then havmg had theIr semorIty pre-date theIr entry mto the classuied selVIce by 7 to [SIC] 15 months respectIVely The Employer's records confirm thIS, but an explanatIOn was offered by the Employer We were told that the Employer apphes ArtIcle 25(l)(b) [SIC] by lookmg at the "unbroken selVIce" as a Go-Temp ImmedIately prIor to the appomtment to the classuied staff and cremtmg the perIod of unbroken selVIce that amounts - 12 to essentIally full trme servIce. In both cases, the servIce was vrrtually conSIstent WIth 40 hours per week except for hohdays or illnesses whIch were allowed. There were also a few exceptIOns of the odd week of less than 40 hours but thIS was Ignored m the employees favour Thus, they were credIted for the unbroken penod of servIce that essentially matched a full trme commItment pnor to becommg classIfied. Later m the decIsIOn, the Board observed that thIS treatment of Rand L was consIstent WIth the pre-1992 language of ArtIcle 25 1(b) It appears from the Parent deCIsion that appomtees to the classIfied servIce from Go-Temp posItIOns were bemg gIven credIt for penods of Illnesses durmg what was otherwIse full- tIme servIce although (If the Board was correctly mformed m Unwn Gnevance, supra) attendance credIts were not avaIlable to them. The apparent dIfference between the practice described m the Parent decIsIOn and the one addressed m Unwn Gnevance, supra, IS not explamed or mentIOned m the latter decIsIOn, presumably because the partIes dId not raIse It. [25] NeIther the eXIstence of the practIce described m Unwn Gnevance, supra, nor ItS conSIstency WIth the language of ArtIcle 18 1(b) IS m dIspute here A document on whIch the partIes agreed seems to mdICate that the employer has treated statutory holIdays for whIch the gnevor receIved pay as though they were days worked for purposes of ArtIcle 18 1(b) Agam, neIther the eXIstence of a practIce of so domg nor the conSIstency of such a practIce WIth the language of ArtIcle 18 1(b) IS m dIspute here Whatever may have been the practIce m ap- plymg the pre-1992 language of ArtIcle 25 1(b), there IS no eVIdence before me m thIS matter of any practIce of treatmg hours not worked and not paId for as though they were hours worked m applymg the "full-tIme weeks worked" Ian guage now found m ArtIcle 18 1(b) (My deCISIOn of September 30, 1998 m Burke, 0892/98, refers to the employer's InterpretIve Bulletm 22, whIch mdlcates m paragraphs 4c and 6 that the employer has a practIce of treatmg vacatIOn tIme as though It was tIme worked under certam CIrcumstances Havmg regard to the CIrcumstances m whIch credIt IS gIVen, one mIght say thIS IS a speCIes of tIme for whIch payment has been gIven. In any event, the treatment of vacatIOn tIme IS - 13 - not m Issue here, nor IS the correctness of any of the employer's mterpretlve bulletms ) [26] Accordmgly, on the Issue of scheduled hours not worked due to lateness (and not paId for through applIcatIOn of attendance credIts), I find that the em ployer acted correctly m excludmg such hours when calculatmg whether the gnevor had ."worked" a "full time" week wlthm the meamng of ArtIcle 18 1(b) The umon's argument m that regard IS essentIally that hours scheduled should be treated as hours worked whether they are actually worked or not. The Board ImplIedly rejected that argument m Unwn Gnevance, supra. It found that "a week can be conSIdered 'full tIme' only where the employee has worked the num- ber of hours speCIfied for the particular claSSIficatIOn m the hours of work sched- ules" It accepted the employer's practIce, not challenged by the umon, of treat- mg some hours paId for but not worked as though they were "notIOnally" worked or "deemed" worked and, thus, properly treated as "worked" for purposes of ArtI- cle 18 1(b) In the case of a day not worked due to Illness and not paId for through applIcatIOn of attendance credIts, however, the Board found that "there IS no room for deemmg, even notIOnally, that the employee worked on such a day" There can be no ratIOnal baSIS for treatmg scheduled hours not worked (and not paId for) due to lateness more favourably than scheduled hours not worked (and not paId for) due to Illness The employer's preparedness to treat hours not worked but paId for as though worked, through applIcatIOn of atten- dance credIts or holIday pay, as though they were hours worked for purposes of ArtIcle 18 1(b) does not gIve nse to an oblIgatIOn to SImIlarly treat hours that were neIther worked nor paId for as though worked. [27] Concermng scheduled days (and hours) that the gnevor dId not work due to Illness (and for whIch he was not paId) m 1990 and 1991, the umon says that they should be treated as havmg been worked for purposes of ArtIcle 18 1(b) be- cause, It alleges, the gnevor was entitled to attendance credIts that ought to have been applIed to them. ThIS IS m substance a complamt about the employer's alleged faIlure to gIve attendance credIts That was the substance of the gnev " 14 ance that the umon filed m May 1992, seekmg retroactIve compensatIOn for em- ployees for whom the employer's alleged non-complIance wIth ArtIcle 38 1 had resulted m demal of SIck leave credIts The grIevance was settled on terms that dId not reqUIre the employer to make any adjustment for any alleged faIlure to grant attendance credIts prIor to AprIl 1, 1992 In the absence of eVIdence that from the outset the umon expressly lImIted Its claIm for retrospectIve relIef m that grIevance to a partIcular tIme perIod, the necessary ImplIcatIOn of that set- tlement was that the umon agreed that the employer would not be oblIged to make any adjustment for alleged faIlure to grant attendance credIts durmg any perIod prIOr to AprIl 1, 1992 Such a settlement IS ordmarIly bmdmg on employ- ees, and nothmg m thIS settlement suggests a shared mtentIOn that It not be bmdmg on employees Accordmgly, the settlement IS a bar to a claIm by the grIevor to adjustment of hIS contmuous servIce date as a remedy for the em- ployer's alleged faIlure to grant attendance credIts m 1990 and 1991, and that claIm must be dIsmIssed [28] The remammg Issue IS whether, m assessmg whIch weeks were "full-tIme weeks worked," the employer properly excluded dlstmct 8 hour shIfts when they were paId for at the overtIme rate I am not called upon to determme whether the employer correctly mterpreted the 1987 settlement referred to m paragraph [4] above when It applIed It m the manner described m paragraph [6], nor whether the 1987 settlement remamed m force after the next collectIve agree- ment came mto effect m 1989, nor whether what the employer dId m 1990 and 1991, as described m paragraph [6], was consIstent WIth ArtIcle 3 4 of the collec- tIve agreement then m effect. The Issue IS sImply whether the employer's havmg paId for certam hours at "overtIme" rates meant that those hours could not count m determmmg whether an employee had worked a "full tIme" week, or sIgmfied that the employee was not a "full-tIme unclaSSIfied employee" engaged m "full- tIme employment" durmg that week. Smce the facts mdlcate that the employer dId not exclude shIfts on that baSIS untIl after the Board's deCISIOn m Scott et al., It IS Important to look at what was addressed m that deCISIOn. 15 - [29] In Scott et al, I consIdered several questIOns concermng the Interpreta- tion and applIcatIOn of the language of clause (b) of ArtIcle 18 1 One was whether, as the employer argued, the phrases "worked by a full-time unclassIfied employee" and "durIng hIS full time employment" qualIfied "full time weeks" In such a way that "full-time weeks" were not to be credIted unless the employee worked them durIng the term of an unclasSIfied employment contract that eIther 4 expressly prOVIded for full-time employment or was a de facto full-tIme contract because the employee had actually worked full-time hours In each and every week of the term of the contract. [30] The umon argued In Scott et ai. that the qualIficatIOn Introduced by the added "full-time" references was that the hours saId to make up a "full-tIme week" must have been treated Just as the hours worked by a full time employee would have been as regards entitlement to an overtIme premIUm. ThIS qualIfica- tion would exclude "weeks worked under a contract whIch prOVIded that the em- ployee would be regularly scheduled to work part time hours and would be paid an overtIme premIUm for hours worked In excess of those part time hours" (Scott, supra, p 9) HavIng regard to clause (c) of ArtIcle 3 4 (quoted In paragraph [5] above), someone whose unclaSSIfied contract prOVIded for a regular schedule of a speCIfic number of hours per day or per week that was less than full-tIme hours would be entItled to overtIme pay WIth respect to any hours worked In the week In excess of the stipulated number, even If he or she worked no more than 8 (or 7Y4) hours per day or 40 (or 36Y4) hours per week. There IS reference to such a contract at page 13 of the Scott et al deCISIOn, In the deScflptIOn of the CIrcum- stances of gflevor Mark Best. [31] For reasons set out at pages 18 to 21 of the Scott et al deCISIOn, I adopted the InterpretatIOn proposed by the umon. I expressed the result tills way (at page 22) An employee need not have been workmg pursuant to an express or de facto "full tune" unclassIfied contract m order to claun credIt for a full tune week" worked, but hours for whICh an overtIme premIUm was payable do not count m determmmg whether the hours worked by the employee m a week made It a "full tune week." 16 - The Issue now before me IS essentially whether that caveat concermng hours for wluch an overtime premlUm IS payable was stated too broadly I thmk It was [32] In P~tfield, the Board observed that the aIm of the pre-1992 verSlOn of Ar- ticle 25 1(b) was "to equate full time employment m the unclassIfied servIce WIth the regular hours of work of a classIfied employee m order to determme length of contmuous ~ervlce" In Parent the Board spoke of employees bemg " credIted for the unbroken penod of servIce that essentially matched a full-time commIt ment ". The same thmgs can be saId about ArtIcle 18 1(b), even though ItS language IS somewhat dIfferent from the language consIdered m the P~tfield and Parent declslOns It would seem odd If someone who worked the regular number of hours of a full tIme, classIfied employee m a week, on a schedule that the em ployer could have Imposed on such an employee, was not regarded as havmg worked a "full time" week for purposes of ArtIcle 18 1(b) [33] The hypothetIcal work schedule set out m paragraph [6] of thIS declslOn certamly looks lIke a "full-time commItment." When I asked the partIes whether a full time employee assIgned those hours could faIrly complam that they dId not satisfy hIS or her enhtlement to (or, at least, expectatlOn of) 40 regular hours of work, It was no suggested that he or she could. My attentlOn was drawn to what now appears as ArtIcle 5.2 m each of the mdlvldual bargammg umt agreements. 5 2 Every reasonable effort shall be made to aVOId scheduhng the commencement of a shut wIthm twelve (12) hours of the completIOn of the employee s prevIOUS shut provIded however that u an employee IS reqUIred to work before twelve (12) hours have elapsed he shall be paid tune and one-half (1 Y2) for those hours that fall wIthm the twelve (12) hour penod. It IS understood that the term "shut" does not mclude any penod of tIme m respect of whIch all employee IS entItled to overtune payments or compensatmg leave m accordance WIth Article 13 (OvertIme) or Article 14 (Call Back) It IS clear that the regular hours of a full-time claSSIfied employee do not have to be scheduled m such a way that each shIft begms at least 24 hours after the be- gmnmg of the prevlOUS shIft. The fact that a shIft attracts a shIft premlUm under ArtIcle 5.2 because of the way It IS scheduled m relatlOn to other shIfts does not 17 make the shIft any less a part of the basIc "full-tIme" week of a "full tIme" em- ployee engaged m "full-tIme" employment. [34] It seems to me that that lOgIC bears extenSIOn to the assessment of what wIll constItute a "full tIme week" for purposes of ArtIcle 18 1(b) The answer should not depend on whether some of the hours worked attracted a shIft pre- mIUm, nor should It matter what label IS used to describe the premIUm. The ap proprIate questIOn IS whether durmg the week m Issue the employee worked the number of hours assocIated wIth full-tIme employment m the eqUIvalent clasSIfi- catIon m the CIvIl servIce, on a schedule that could have been assIgned to a full- tIme clasSIfied employee and would have satIsfied whatever entItlement that employee had to a certam number of "regular" hours per week. If so, then the employee worked a "full tIme" week for purposes of ArtIcle 18 1(b) GIven the facts that have emerged m the case now before me, I cannot say that hours that are "regular" for the purpose of thIS test WIll never be hours that the partIes re- gard as "overtIme" hours for the purpose of determmmg the approprIate rate of pay for workmg them. [35] In Scott et al the umon mtrod uced the Issue of overtIme hours mto the debate about the meamng of the words "worked by a full-tIme unclassIfied em ployee durmg hIS full-tIme employment," as a means of demonstratmg how those words could have meamng WIthout theIr reqUIrmg employment on an express or de facto full-tIme contract. At Issue was how those words could have any other effect not already prOVIded by the words "full-tIme weeks" whIch, as both partIes agreed, already tested whether the number of hours actually worked m a week was at least equal to the number of hours assocIated WIth full-tIme employment m the eqUIvalent clasSIficatIOn m the CIVIl servIce [36] As the umon's argument m Scott et al noted, some unclassIfied employees were employed on contracts that expressly prOVIded that they would work a fixed number of regular hours each week. Where that fixed number was the number of hours assocIated WIth full tIme employment m the eqUIvalent claSSIficatIOn m the CIVIl servIce, the employee was a "full tIme employee" engaged m "full-tIme - 18 - employment" pursuant to what the employer referred to m Scott et al as an "ex- press" full-time contract. If that fixed number of regular hours was less than the number of hours assocIated with full-time employment In the equIvalent classIfi- catIOn m the cIvIl servIce, however, then the employee was clearly a part-time employee engaged m part-time employment pursuant to an expressly part-time contract. That employment would arguably retam that character even If by . workmg "overtIme" the employee worked the numenc eqUIvalent of full-time hours [37] The umon's argument m Scott et al also noted that the dIfference between employment on an expressly part-time basIs and employment as a so-called "part-time" or "casual" employee on a contract that speCIfied that hours of work are "Irregular" or "up to 40" was that the latter was treated lIke a full tIme em ployee for purposes of ArtIcle 34 (OvertIme) By contrast, someone employed on a contract that expressly prOVIded for a regular work week of, say, 20 hours per week would be entitled under ArtIcle 3 4(c) to payment at overtIme rates for all hours worked m excess of 20 In any week. Someone thus employed on an ex pressly part-time baSIS could not be a "full tIme unclassIfied employee" engaged m "full-time employment" despIte workmg the numenc eqUIvalent of full-time hours Also, someone so employed could not work the numenc eqUIvalent of full- time hours WIthout bemg paId for some of them at the overtIme rate pursuant to ArtIcle 3 4( c) [38] In Scott et al I accepted that the effect of addmg the words "worked by a full-tIme unclassIfied employee durmg hIS full-time employment" to "full-time weeks" m ArtIcle 18 1(b) was to exclude someone employed on an expressly part time baSIS even when the number of hours that the employee worked m a week was the numenc eqUIvalent of full-time hours Someone so employed could not work the numenc eqUIvalent of full tIme hours WIthout bemg paId for some of them at the overtIme rate pursuant to Article 3 4(c) It was not apparent to me at the time of the Scott et al deCISIOn that somethmg resemblmg a 40 hour, five by 8 week of a full-time employee could attract an overtIme premIUm under any 19 other part of ArtIcle 3 4 when worked by an unclassIfied employee on an "up to 40 hours" contract, nor was I aware of any specIal agreement that mIght have had that effect. Accordmgly, m describmg the result It seemed sensible to com- bme the "full tIme weeks worked" test - whIch focused on the number of hours worked - and the "by a full-tIme unclassIfied employee durmg hIS full-tIme em- ployment" test - wruch focused on the nature of the employment and excluded those whose"employment contracts provIded for a regular work schedule of fewer than full-tIme hours - mto a smgle test that SImply excluded from consIderatIOn hours paId for at overtIme rates It seemed that such a test would have the same effect as the two dIstmct tests I mtended It to reflect. [39] The questIOn now before me here - whether dIstmct 8 hour shIfts worked under an "up to 40 hours" unclassIfied contract are properly excluded m assess- mg "full-tIme weeks worked" when they were paId for at an "overtIme" rate due to theIr temporal prOXImIty to other shIfts worked - was not before me m Scott et al It does not appear to have been before the Board m Morton, supra, eIther The facts that gIve rIse to the questIOn here demonstrate that the test artICU- lated m Scott et al and quoted at paragraph [31] above may not always have the same result as the two dIstmct tests for whIch I had thought It would be, and had mtended It to be, the functIOnal eqUIvalent. In retrospect, a test based on whether or not hours were paId for at "overtIme" rates may not YIeld the correct result outSIde the context m whIch It was artIculated m Scott et al It appears that to properly apply ArtIcle 18 1(b) It IS necessary to keep separate the two dIS- tmct tests to whIch I have referred. [40] For purposes of ArtIcle 18 1(b), then, a "full-tIme week worked" by an un- claSSIfied employee IS a week m whIch the employee "worked" (m the expanded sense the employer's practIces may be found to have gIven that word) at least the number of hours assocIated WIth full-tIme employment m the eqUIvalent claSSIfi- catIon m the CIVIl servIce, accordmg to the relevant schedule to the Publ~c Serv- ~ce Act If the schedule on whIch the hours were worked plays any part m the ap plIcatIOn of ArtIcle 18 1(b), the relevant Issue IS SImply whether the schedule was 20 one whIch could have been assIgned to a full-tIme employee m the equIvalent classIficatIOn m the CIvIl servIce WIthout ObjectIOn that It faIled to satIsfy that employee's entItlement to or expectatIOn of the prescribed number of "regular" hours per week. It does not appear that there could be a valId complamt of that sort m any of the mstances m Issue here [41] The second of the two tests to whIch I have referred here IS the one pro- VIded by the words "worked by a full-tIme unclassIfied employee durmg hIS full- tIme employment." As I have saId, thIS operates to exclude "full-tIme weeks" worked by someone employed on a contract that prOVIded for a fixed number of regular hours of work that IS less than the number of hours of work assocIated WIth full-tIme employment m the eqUIvalent claSSIficatIOn m the CIVIl servIce That IS not the case here [42] Accordmgly, the dIsputed weeks m whIch the gflevor worked five dlstmct 8 hours shIfts - the pay perIOds begmnmg July 20, July 27, September 14, and September 21, 1990 - should be treated as "full tIme weeks worked" m calcu latmg the gflevor's contmuous servIce date under ArtIcle 18 1 The gflevor IS not entItled to credIt, however, for the other weeks m Issue, m whICh hIS hours worked fell short of 40 because of lateness or absence due to Illness m respect of whIch no attendance credIts were applIed. The gflevor's claIm that he should now be retroactIvely granted those credIts IS dIsmIssed as barred by the settle- ment of the earlIer umon gflevance on the same subject. [43] I remam seIsed WIth any Issues aflsmg out of these gflevances whIch are not resolved by these findmgs Dated at Toronto thIS 23rd day of October, 1998