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Home My WebLink About1997-1339.St. Amour et al.98-04-07 ~ ONTARIO 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 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-139(5 GSB # 1339/97, 1340/97, 0039/98, 0040/98, 0041/98, 0042/98, 0043/98, 0044/98, 0045/98, 0046/98, 0047/98, 0050/98 CUPE 1332-01# 96-06, 96-07, 97-01, 97-02, 97-03, 97-04, 97-05,97-06,97-07,97-11,97-12,97-14 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE 1332-01 (St Amour et al) Grievor - and - The Crown m RIght of OntarIo (Espanola Ambulance ServIce) Employer BEFORE R. Brown Vice-Chair FOR THE R. Carnovale UNION NatIOnal RepresentatIve CanadIan Uruon ofPubhc Employees Local 1332-01 FOR THE D RobInson, Q C EMPLOYER Counsel, Mathews, Dmsdale & Clark HEARING March 31, 1998 ~ Several gnevances were heard m a smgle day, m an expedIted format, to mImmIze the cost to all concerned. As well as receIvmg formal submIssIOns from the partIes, I held Informal dIscussIOns WIth them. In keepmg WIth tlus procedure, most of the orders set out below are not accompamed by lengthy reasons All of these gnevances arose when the ambulance servIce was operated by Espanola Ambulance ServIce EffectIve December 1, 1997, the servIce was transferred to Espanola General HospItal 1 Vacation Entitlement and the Social Contract Act. GSB 0044/98, 0045/98, 0046/98 (Case No. 97-04, 97-05 and 97-06) Coos GillIS, Gail WIthers and Andre Themen gneved the way theIr vacatIOn entItlement was calculated m the aftermath of the Social Contract Act Under tlus collectIve agreement, as tmder most others, the amOlmt of paid vacatIOn accrumg to an employee mcreases WIth length of sefVIce The partIes agree that the Social Contract Act froze vacatIon entItlement from June 14, 1993 until March 31, 1996, notwIthstandmg the accrual of sefVIce m the mtenm. The freeze was Imposed by s 24(1) The rate of compensatIOn of an employee IS, for the penod begmnmg June 14, 1993 and endmg March 31, 1996, fixed at the rate that was m effect nnmeclIately before Jtme 14, 1993 As s 2 defines compensatIOn to mc1ude "all payments and benefits", the effect of s 24(1) was to freeze vacatIOn entItlement from June 14, 1993 until March 31, 1996 The dIspute concerns what happens after March 31, 1996 and anses from s 24(8) of the legislatIOn. An employee IS not entItled to any mcreases m compensatIOn after March 31, 1996 by way of, 2 ~ (a) ment mcreases, (b) cost-of-lIvmg mcreases or other sunilar movement of or through ranges, or ( c) mcreases resultmg from any movements on any pay scale or other gnd system, except as prescribed by regulatIOn, m respect of employment dunng the penod begmmng June 14, 1993 and endmg March 31, 1996 The employer has mterpreted tlus proVIsIon to mean employees will never receIve any credIt for the penod between June 14, 1993 and March 31, 1996 In other words, the employer has subtracted tlllS penod from each employee's semce for the purpose of calculatmg vacatIOn entitlement The umon contends s 24(8) has no applIcatIOn to vacation entitlement relatmg to employment after March 31, 1996 Accordmg to tIllS lme of argument, s 24(8) merely prevents an employee from clalImng, after March 31, 1996, vacatIOn entitlement for the penod between June 14, 1993 and March 31, 1996, where such entitlement IS based upon semce between these two dates VIewed m thIS way, s 24(8) merely ensures an employee does not receIve after March 31, 1996 compensatIOn for the penod between June 14, 1993 and March 31, 1996, where s 24(1) precluded the employee from receIVIng such compensatIOn before the end of tills penod. I accept the umon's constructIOn of s 24(8) for the followmg reasons On a lIteral constructIOn, tlus subsectIOn does what the umon says SectIOn 3 ~ 24(8) addresses "mcreases m compensation m respect of employment during the period begznning June 14, 1993 and endzng March 31, 1996" (emphasIs added) The focus IS upon compensatIOn for employment dunng the specIfied penod. SectIOn 24(8) ensures there IS no retroactIve mcrease m compensatIOn for thIs penod. TIus subsectIOn does not address compensatIOn for employment after March 31, 1996 In other words, the legIslatIon says nothmg about an employee's vacatIon entItlement flowmg from employment after thIs date ThIs mterpretatIOn IS also conSIstent WIth the purpose of the SoclGl Contract Act set out m paragraph 2 of s 1 To prOVIde for expendIture reductIon for a three-year period and to prOVIde cntena and mechanIsms for achIeVIng the reductIOns (emphaSIS added) On the umon's readmg of s 24(8), the legIslatIon achIeves ItS purpose by reducmg the costs assocIated WIth vacatIOns dUrIng the three-year penod endmg March 31, 1996 As the employer's mterpretatIOn would reduce costs forever, not Just for three years, It IS not supported by the purpose of the legIslatIOn. I note the mterpretatIOn adopted m thIs award conforms to the approach taken by ArbItrator MItchruck m an mterest award, dated August 31, 1994 York RegIOn Board of Education and Ontario Secondary School 4 ~ Teachers' Federation Mr Mitchmck drrected that as of May 1, 1996 all teachers should be returned to the posItIon on the salary gnd whIch they would have occupIed but for the Soczal Contract Act I declIne to follow the maJonty award m Kztchener Waterloo RegIOnal Ambulance and Canadian Unzon of Publzc Employees, unreported award dated April 7, 1997 (Rayner) ArbItrator Rayner embraced a ffilddle ground fallmg between the posItIons outlmed above Accordmgly, we award that s 24(8) does not apply to those employees who dId not move from one posItIOn to another on the [vacatIon] gnd dunng the tIme penod In questIOn [1 e June 13, 1993 to March 31, 1996] but does apply to those who dId The gnevance IS allowed and the employer IS dIrected to comply wIth the terms of the collectIve agreement In respect of employment after March 31, 1996 In partIcular, the employer IS dIrected to pay each of the gnevors for one addItIonal week of vacatIon. 2 OrIentatIOn Course GSB 0050/98 (Case No. 97-14) When Don Joncas was hrred, he was scheduled to commence work on June 2, 1997 He undertook an on entatIon program on May 28,29 and 30, eIght hours each day, for whIch he was not paId. 5 ~ The umon relIes upon artIcle 17 04 of the collectIve agreement whIch entitles employees to theIr normal rate of pay dunng "m-servIce" trammg The employer contends Mr Joncas agreed not to be paid for 111s onentatIOn The umon's response IS that any such agreement IS VOId as an mfrmgement upon ItS exclusIve bargammg nghts Based upon the submIssIons of the partIes, I dIrect the employer to pay Mr Joncas for these three days 3 Recall from Vacation GSB 1340/97 (Case No. 97-11) Mike St. Amour was recalled to work an eIght-hour ShIft dunng hIS vacatIOn He receIved eIght hours' pay for thIS work. The lll1lOn contends he should have been paId at time and one half and should also have receIved eIght hours of vacatIon III heu. ArtIcle 22 02 states Should an employee who has commenced hIS scheduled vacatIon and agrees upon request of the Employer to return to perform work dunng the vacation penod (SIC), the employee shall be paid at the rate of one and one-half (1 1/2) tImes IllS baSIC straIght tIme rate for all hours worked To replace the ongmally scheduled days on WhICh such work was performed, the employee will receIve one (1) vacatIon lIeu day off for each day on WhICh he worked. 6 ~ Once agaIn, the employer relIes upon an agreement wIth the gnevor WaIvmg ills entItlement under the collectIve agreement, and the umon contends any such an agreement IS not enforceable The employer IS dIrected to pay Mr St. Armour eIght hours' pay at the basIc straIght tIme rate as compensatIOn for the lost day of vacatIOn 4 Overtime GSB 0042/98, 0043/98 (Case No 97-02 and 97-03) On February 2,3 and 4, 1997, Chns GIllIs and Lmda Lebeau worked non-stop, even though employees generally are entitled, tmder artIcles 17 01 and 17 02 of the agreement, to a half-hour paId lunch and two fifteen-mmute paId breaks In other words, the gnevors worked one hour more than normal on three succeSSIve days The umon contends they should be paId for thIS tIme at the overtIme rate of tIme and one-half The employer claIms they should have contacted the dIspatcher to mqmre whether they could stop for lunch and breaks The employer IS ordered to pay each of the gnevors for two hours at the straIght -time rate 7 , 5. Shift Premium GSB 0041/98 (Case No. 97-01) Luke LeslIe worked a thrrteen-hour sinft , commencmg m the early afternoon of February 14 and endmg m the early mornmg of February 15, 1997 The umon contends he should receIve a shIft premmm pursuant to article 18 10 winch states Employees shall be paId a ShIft prermum of forty-five cents per hour for all hours worked where the maJonty of these hours fall between 15 30 and 07 30 hours Accordmg to thIS artIcle, the gnevor IS entitled to the shIft premmm. The employer IS ordered to pay It for the thIrteen hours worked. 6. Vacation Entitlement for a New Employee GSB 0040/98 (Case No 96-07) Ivan Labelle began workmg for the employer ill August of 1995 HIS vacatIOn entItlement ill 1996 was governed by the first paragraph of artIcle 2001(a) An employee who has completed less than one (l) year of contmuous servIce shall be entitled to two (2) weeks annual vacation, payment for such vacatIOn shall be prorated ill accordance WIth hIs/her semce 8 ~ The partIes agree Mr Labelle was entitled to 30 hours of vacatIOn pay However, he was compelled by the employer to take forty hours of vacatIon and dId not receIve full payment for all of thIS tune The crux of the dIspute IS whether the employer may requITe an employee to take unpaid vacatIOn where hIS entItlement to vacatlOn tIme exceeds hIs entitlement to vacatIOn pay The umon contends an employee may declIne to take vacatIOn tune for whIch vacation pay IS not available In my VIew, the umon IS correct. The purpose of the contractual proVISIOn quoted IS not to allow the employer to force an employee to take unpaid vacation. The gnevance IS allowed. For the ten hours ill dIspute, the employer IS ordered to pay Mr Labelle the dIfference between hIS regular rate of $16 84 and the rate of $6 89 whIch he was paid 7 Wage ProgressIOn and the Social Contract Act. GSB 0039/98 (Case No. 96-06) Ivan Labelle was not allowed to progress on the wage gnd dunng the penod covered by the Soczal Contract Act The umon contends tillS was Improper because hIS annual earnmgs were less than $30,000 The employer relIes upon Mr Labelle's status as a part-tIme employee whose earnmgs would have exceeded $30,000 Ifhe had worked full-time at the same hourly rate 9 ~ The Social Contract Act dId not apply to any employee earmng less than $30,000, regardless of how much the employee would have earned on a full-time baSIS Accordmgly, the gnevance IS allowed. The employer IS drrected to pay Mr Labelle SIXty-SIX cents per hour for all hours worked between Ius first annIversary, on August 14, 1996, and March 31, 1997 when he was allowed to progress on the gnd. 8. Reporting Pay and Promotion GSB 0047/98, 1340/97 (Case No 97-07 and 97-12) Donna Patry, a regular part-time employee, was scheduled to work on June 30, 1997, but she was sent home when she reported for duty She claims reportmg pay, m the amount of payment for four hours, pursuant to artIcle 18 06 Ms Patry also contends she should have been appomted m Apnl of 1997 to fill a temporary full-time vacancy of fifty-two hours m duratIOn TIns work was aSSIgned to two casual employees As a resoluton of both of these gnevances, the employer shall pay the gnevor for fifty-two hours at her regular rate of pay -...,/ RIchard M. Brown, VIce-Chair Ottawa,Ontano April 7, 1998 10