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Home My WebLink About1996-1711.Gillespie.99-12-16 Decision o NTARW EMPU)Y]ks DE LA COURONNE CROW"! EMPLOYEES DE L '()NTARW GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 1711/96, 1765/96, 1768/96, 1769/96, 1770/96, 1771/96, 1772/96, 1776/96, 1816/96,0445/97 0447/97 0461/97 0947/97 OPSEU # 96G254 96G264, 96G261, 96G260 96G259 96G258,96G263 96G268,96G290 97B571 97B567 97B585 97B749 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (GillespIe Costello, Legouffe) Grievor - and - The Crown m RIght of OntarIO (Mimsm of Natural Resources) Employer BEFORE RIchard Brown Vice ChaiT FOR THE Man MacKmnon GRIEVOR Counsel, Bode, MacKmnon Bamsters & SohcItors FOR THE DavId Strang EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARING December 9 1999 The partIes have consolIdated a large number of gnevances by schedule 6 employees mvolved m fire fightmg. All relate to overtIme pay for work on a regular day off The gnevors are lIsted m AppendIx A. Some of the gnevors dId not receIve notIce of thIS hearmg. An astensk appears besIde theIr names m AppendIx A. The umon has undertaken to notIfy them of thIS decIsIOn. The partIes have agreed each of these gnevors will be bound by thIS decIsIOn unless he or she IS able to demonstrate personal CIrcumstances matenally dIfferent than those addressed here In any event, such a gnevor will be bound by thIS award unless wlthm SIXty days of ItS Issuance he or she mforms the employer of an mtentIOn to seek an exceptIOn. I The gnevors have regular days off m the Jobs they perform throughout most of the year When called upon to fight fires or to perform related dutIes, the gnevors may be reqUIred to work for as long as mneteen days wIthout a day off They may also work long days domg very strenuous tasks They have been paid tIme and one-half for work m excess of eIght hours a day, but they typIcally have receIVed no over tIme pay for work on a day that would have been a day off If they were not fire fightmg. EqUIvalent tIme off has been granted mstead. If such tIme off has not been scheduled before the end of the fiscal year, they have been paid at a straight tIme rate There have been some exceptIOns where overtIme pay was receIVed for work on a day off The exceptIOns mclude the 1995 fire season, when the employer made special arrangements to attract addItIOnal staff to tackle an unusually heavy work load, and the 1998 Ice storm. Another exceptIOn IS 2 planned for Y2K cntIcal work between December 27, 1999 and January 10, 2000 The umon contends one of the gnevors, Mr Stmson, receIved overtIme pay over a penod of years The employer neIther agrees nor dIsagrees wIth thIS claim, but contends any such payment was made by mIstake By way of remedy, most of the grIevors seek reassIgnment to schedule 3 7, because schedule 3 7 employees are entItled to over tIme pay, at a premmm rate, for work on a day off In the alternatIVe, these gnevors seek overtIme pay at a premmm rate Tms IS the pnmary remedy sought by the rest of the gnevors In the alternatIVe, all of the grIevors seek a chOIce between eqUIvalent tIme off and overtIme pay at straight tIme In the yet further alternatIVe, they ask for mterest on money paid at the fiscal year end. II The work performed by each of the grIevors falls wItmn one of the followmg classIficatIOns RTS1, RTS2, RTS3, RTS4, Econ3 and 102 The first four classIficatIOns are covered by the 1994-98 TechnIcal Bargammg Umt CollectIVe Agreement and the last two by the 1994-98 AdmmIstratIVe BargaImng Umt CollectIVe Agreement. The relevant artIcles m these two agreements are IdentIcal m substance The artIcles m the technIcal agreement concermng overtIme pay for schedule 6 employees read as follows TEC23 SCHEDULE 6 The normal hours of work for employees on thIS schedule shall be a mmImum oftmrty-sIx and one-quarter (36 1/4) hours per week. 3 TEC8 7 1 Employees who are m classIficatIOns assIgned to Schedule 6 and who are reqUIred to work on a day off shall receIVe eqUIvalent tIme off TEC8 7 2 NotwIthstandmg ArtIcle TEC8 7 1 and ArtIcle TEC 13 7 (Hohday Payment) employees who are m classIficatIOns assIgned to Schedule 6 and who are assIgned to forest fire fightmg 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 m a twenty-four penod. The classIficatIOns occupIed by the gnevors were placed on schedule 6 by a regulatIOn made under S 29(1) of the Puhhc Servlce Act See 0 Reg. 785/94 SectIOn 29(3) of the Act states Any provIsIOn m a collectIve agreement that IS m COnflICt WIth a provIsIOn of a regulatIOn as It affects the employees of a bargammg umt covered by the collectIve agreement prevails over the provIsIOn of the regulatIOn. ThIS provIsIOn allows a collectIve agreement to alter the allocatIOn of classIficatIOns among schedules made by regulatIOn. Rather than changmg the govermng regulatIOn's placement of the dIsputed classIficatIOns, the salary tables m the collectIVe agreement confirm It. The collectIVe agreement grants the employer a dIscretIOnary power to move employees from one schedule to another after consultmg the umon. ArtIcle TEC2 6 states Where the Employer mtends to transfer employees or an employee from one schedule to another schedule, the Employer will dISCUSS the transfer wIth the unIon pnor to such transfer When the transfer 4 occurs, the employee's weekly salary based on hIS or her hourly rate shall be adjusted accordmgly The employer has not exercIsed thIS power so as to alter the placement of any of the classIficatIOns m dIspute IV Concedmg the assIgnment of classIficatIOns to a schedule falls wIthm the employer's dIscretIOn, counsel for the umon asserts thIS dIscretIOn must be exercIsed m a manner WhICh IS not dIscnmmatory or arbItrary Counsel asserts the placement of the gnevors on schedule 6 IS dIscnmatory because It demes them the entItlement to over tIme pay enjoyed by others domg fire- fightmg work, mcludmg employees on schedule 3 7 and excluded managers The placement IS Said to be arbItrary because It lacks any sound ratIOnale Counsel for the employer relIes upon two cases mvolvmg the assIgnment of a classIficatIOn to schedule 6 In OntarlO Puh!zc ServIce Employees' UnlOn (WhItehead) and MInistry of Natural Resources, GSB File No 198/82, decIsIOn dated August 9, 1982 (Roberts), a schedule 6 employee sought reassIgnment to another schedule The collectIVe agreement then m force contamed a provIsIOn IdentIcal to now TEC2 6, allowmg the employer to determme the appropnate schedule for a classIficatIOn. Mr Roberts held the employer was "free unilaterally to perform tills allocatIOn functIOn." In OntarlO Puh!zc ServIce Employees' UnlOn (GalluccI) and Management Board Secretarzat, GSB No 1262/93, decIsIOn dated March 27, 1999 (Bnggs), the gnevors claimed theIr hours of work were mappropnate They asked to be reassIgned to schedule 3 7 In the alternatIVe, they sought an order dIrectmg the employer to schedule appropnate hours 5 One aspect of theIr complamt appears to have been the demal of overtime pay to schedule 6 employees CItmg Mr Roberts decIsIOn m Whztehead, Ms Bnggs concluded she was wIthout JunsdIctIOn to grant the relIef requested. V Counsel for the umon may be nght m assertmg the employer's dIscretIOnary power must not be used m a way that IS arbItrary or dIscnmmatory However, as employer counsel noted, the gnevors were not placed on schedule 6 through any exerCIse of management dIscretIOn. The mItIal assIgnment was made by regulatIOn and It was confirmed by the collectIve agreement. All the employer has done IS refram from altenng thIS placement. The umon cannot successfully challenge as arbItrary or dIscnmmatory a placement to WhICh It agreed m the collectIVe agreement. Accordmgly, the umon's request that certam gnevors be reassIgned to schedule 3 7 IS demed. The terms of the collectIVe agreement clearly mdIcate that schedule 6 employees are not entItled to overtIme pay as a general rule Instead, the agreement states they "shall receIve eqUIvalent tIme off" The only exceptIOn recogmzed by the agreement IS for fire- fightmg work m excess of eIght hours m a day There IS no sImilar exceptIOn for fire- fightmg work on a day off GIven these provIsIOns m the agreement, the mescapable conclusIOn IS that work on a day off entItles the gnevors to eqUIvalent tIme off, but not to overtIme pay I was not referred to any provIsIOn m the collectIVe agreement entItlmg them eIther to payment at a straIght time rate before the end of the fiscal year 6 or to mterest on payments made at year end. Accordmgly, the relIef requested along these lmes IS demed The grIevance IS dIsmIssed. Dated at Toronto, OntarIO thIS 16th day of December, 1999 JII!.-f"ifi#--- RIchard Brown, V Ice-Chair 7 AppendIX A 1711/96 Harvey 1765/96 Blahut 1768/96 Plantt 1769/96 Stmson 1770/96 GillespIe 1771/96 Hynd 1772/96 Costello 1776/96 Cyr 1816/96 Handley 0445/97 Spencer MacDonald, A Churchill McKmght Armstrong Evens FrancIs Boven DupUIs MacDonald, J Dutton Fazekas Austen DavId Hollstedt Kellar Reany - Iskra Landry Moxam WIedenhoeft 0447/97 Spencer Smyk * Barne * Laidlaw * 8 0461/97 Tanm* SIgmann Handley CassIdy * Schulz Curran * Brown Woods * Johnson * Cyr DlOn* Tilker Welch * Turner * Harvey * Munroe Groenevold * Myers Shortt * Allarre * Apsey * Aubm Burke * Cleaver * Crrella Woermke Droog 0947/97 Legouffe No GSB # Ball Bredm Hyland Klem Moorley Page 9