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HomeMy WebLinkAbout1999-1211.Union Greivances et al.01-09-19 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1211/99, 1940/99,2025/99, 0315/00, 0733/00, 0740/00 UNION#99U057, 00U012, 99U082, 00U051, 00U074, 00U077 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union Grievances) Grievor -and- The Crown In Right of Ontario (Ministry of Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE GRIEVOR David Wright Counsel Ryder Wright Blair & Doyle Barnsters & Solicitors FOR THE EMPLOYER Len Marvy Counsel Legal Services Branch Management Board Secretariat HEARING April 11 ,2001 and May 15, 2001 2 DECISION There are SIX Umon gnevances before me whIch raise Issues concernIng the applIcatIOn of ArtIcle COR6 1 3 ("6 1 3") ThIS provIsIOn, provIdes for the payment of a week-end premIUm, IS contaIned In the CorrectIOnal BargaInIng Umt CollectIve Agreement. The partIes made submIssIOns wIth respect to the InterpretatIOn of 6 1 3 In the context of SIX scenanos The Employer reserved the nght to raise Issues relatIng to the appropnate remedy I was advIsed that there are many other unresolved gnevances whIch also concern the proper applIcatIOn of 6 1 3 ArtIcle COR6 whIch contaInS a number of provIsIOns dealIng wIth ShIft premIUms, reads as follows ARTICLE COR6 - SHIFT PREMIUM COR6 1 1 EffectIve March 27 1999 an employee shall receIve a shIft premIUm of one dollar ($1 00) per hour for all hours worked between 5 00 p.m and mIdmght. Where more than fifty percent (50%) of the hours worked fall wIthIn thIS penod, the one dollar ($1 00) per hour premIUm shall be paid for all hours worked. COR612 EffectIve March 27 1999 an employee shall receIve a shIft premIUm of one dollar and fifty cents ($1 50) per hour for all hours worked between mIdmght and 7 00 a.m. Where more than fifty percent (50%) of the hours worked fall wIthIn thIS penod, the one dollar and fifty cents ($1 50) per hour premIUm shall be paid for all hours worked. COR613 EffectIve March 27 1999 a premIUm of eIght dollars ($800) per shIft shall be paid for all shIfts that commence on or after three 0' clock p m. Fnday and end on or before seven 0' clock a.m Monday 3 COR6.2 NotwIthstandIng ArtIcles COR6 1 1 and COR6 1.2, where an employee's hours of work normally fall wIthIn 7 00 a.m and 5 00 P m. the employee shall not be entItled to receIve a shIft premIUm for hours worked between 5 00 p.m and 7 00 a.m. COR63 ShIft premIUms shall not be consIdered as part of an employee's basIc hourly rate COR64 ShIft premIUm shall not be paid to an employee who for mutually agreed upon reasons works a shIft for whIch he or she would otherwIse be entItled to a shIft premIUm COR65 NotwIthstandIng ArtIcle 15 (Central Agreement) the premIUm provIded under ArtIcle COR6 1 3 shall be payable In addItIOn to any premIUm payable under ArtIcle COR6 1 1 or COR6 1.2, as the case may be Many of the above provIsIOns were contaIned In ArtIcle 11 In pnor Central CollectIve Agreements ArtIcles 6 1 1 and 6 1.2 provIde for a ShIft premIUm based on a dollar amount per hour for work performed dunng certaIn hours In essence, 6 1 1 provIdes for an afternoon ShIft premIUm and 6 1 2 provIdes for a mght ShIft premIUm. ArtIcle 6 1 3 IS a new provIsIOn and IS only contaIned In the CorrectIOnal BargaInIng Umt CollectIve Agreement. It provIdes for a premIUm of $8 00 per ShIft for all ShIftS that commence on or after 3 00 p.m on Fnday and end on or before 7 00 a.m Monday HereInafter I wIll refer to thIS penod of tIme as the week-end. ArtIcle 6 4 provIdes that a ShIft premIUm shall not be paid to an employee who for mutually agreed upon reasons works a ShIft for whIch the employee would otherwIse be entItled to a ShIft premIUm ArtIcle 6 5 IndIcates that notwIthstandIng ArtIcle 15 of the Central Agreement, whIch precludes the pyramIdIng of premIUm payments, the per hour premIUms In 6 1 1 and 6 1 2 shall be payable In addItIOn to the shIft premIUm In 6 1 3 4 The folloWIng provIsIOns of the CorrectIOnal BargaInIng Umt CollectIve Agreement also have some relevance to these gnevances ARTICLE COR2 - HOURS OF WORK COR2 1 SCHEDULE 3 and 3 7 The normal hours of work for employees on these schedules shall be thIrtY-SIX and one quarter (361J4) hours per week and seven and one-quarter (71J4) hours per day COR2.2 SCHEDULE 4 and 4 7 The normal hours of work for employees on these schedules shall be forty (40) hours per week and eIght (8) hours per day COR23 SCHEDULE 6 The normal hours of work for employees on thIS schedule shall be a mImmum of thIrtY-SIX and one-quarter (361J4) hours per week. ARTICLE COR4 - SCHEDULED TOUR OF DUTY OR SHIFT COR4 1 A ShIft whIch does not commence and end on the same calendar day shall be consIdered as fallIng wholly wIthIn the calendar day on whIch the ShIft commences ARTICLE COR5 - SHIFT SCHEDULES COR51 ShIft schedules shall be posted not less than fifteen (15) days In advance and there shall be no change In the schedule after It has been posted unless notIce IS gIven to the employee one hundred and twenty (120) hours In advance of the startIng tIme of the shIft as ongInally scheduled. If the employee concerned IS not notIfied one hundred and twenty (120) hours In advance he or she shall be paid tIme and one-half (1I1z) for the first eIght (8) hours worked on the changed shIft provIded that no premIUm shall be paid where the change of schedule IS caused by events beyond the mImstry's control COR5.2 Every reasonable effort shall be made to aVOId schedulIng the commencement of a ShIft wIthIn twelve (12) hours of the completIOn of the employee's prevIOUS ShIft provIded however that If an employee IS reqUIred to work before twelve (12) hours have 5 elapsed he or she shall be paid tIme and one-half (1I1z) for those hours that fall wIthIn the twelve (12) hour penod. It IS understood that the term "shIft" does not Include any penod of tIme In respect of whIch an employee IS entItled to overtIme payments or compensatIng leave In accordance wIth ArtIcle COR8 (OvertIme) or ArtIcle COR9 (Call Back) COR53 A ShIft may be changed wIthout any premIUm or penalty If agreed upon between the employee and the mImstry COR54 It IS the Intent of the partIes that there shall be no splIt ShIftS provIded however that In CIrcumstances where splIt ShIftS are currently In eXIstence reasonable efforts shall be made to elImInate the splIt shIfts COR55 The current practIce of gIVIng notIce of ShIft schedules In advance under eXIstIng agreements where notIce IS In excess of fifteen (15) days shall be maIntaIned. ARTICLE COR7 - REST PERIODS COR71 The present practIce for rest pen ods In each ShIft shall be maIntaIned. ARTICLE CORS - OVERTIME COR81 The overtIme rate for the purposes of thIS Agreement shall be one and one-half (1I1z) tImes the employee's basIc hourly rate COR8.2 1 In the assIgnment of overtIme, the Employer agrees to develop methods of dIstnbutIng overtIme at the local workplace that are fair and eqUItable after havIng ensured that all ItS operatIOnal reqUIrements are met. COR8.2 2 In thIS artIcle, "overtIme" means an authonzed penod of work calculated to the nearest half-hour and performed on a scheduled workIng day In addItIOn to the regular workIng penod, or performed on a scheduled day(s) off ARTICLE COR9 - CALL BACK COR9 1 An employee who leaves hIS or her place of work and IS subsequently called back to work pnor to the startIng tIme of hIS or her next scheduled ShIft shall be paid a mImmum of four (4) hours pay at once and one-half (1I1z) tImes hIS or her basIc hourly rate 6 I was also referred to the folloWIng provIsIOns of the Central Agreement ARTICLE 15 - NON-PYRAMIDING OF PREMIUM PAYMENTS 15 1 There shall be no duplIcatIOn or pyramIdIng of any premIUm payments or compensatIng leave provIded by the Central CollectIve Agreement or any BargaInIng Umt CollectIve Agreement as lIsted In ArtIcle 1 (RecogmtIOn) ARTICLE 22 - GRIEVANCE PROCEDURE 22 14 6 The GSB shall have no JunsdIctIOn to alter change, amend or enlarge any provIsIOn of the CollectIve Agreements ARTICLE 31 - UNCLASSIFIED EMPLOYES OTHER THAN SEASONAL, STUDENT AND GO TEMP EMPLOYEES 31 16.2 The folloWIng artIcles of the BargaInIng Umt CollectIve Agreements shall also apply to unclassIfied employees other than seasonal, student and GO Temp employees COR4 COR6 COR7 CORIO CORll As one would expect, correctIOnal InstItutIOns operate on a 24 hour 7 day a week basIs ArtIcle COR5 deals wIth ShIft schedules and 5 1 provIdes that ShIft schedules shall be posted not less than 15 days In advance The Employer has a practIce of schedulIng regular ShIftS whIch are 8 10 and 12 hours, and occasIOnally 4 hours, In duratIOn. Before turmng to the SIX scenanos, It IS useful to bnefly set out two of the Issues In dIspute between the partIes The maIn Issue centres on the meamng of the word "shIft" In 613 The Umon takes the posItIOn that a "ShIft" IS sImply a contInuous penod of work and submIts that the performance of work for whatever duratIOn constItutes a shIft. From thIS analysIs It follows, for example, that the employee who performs three hours of overtIme work on Saturday would satIsfy the defimtIOn of "ShIft" In 6 1 3 The Employer 7 on the other hand, argues that the word "ShIft" means a regular ShIft scheduled by the Employer SInce the Employer takes the VIew that any hours worked dunng the week-end outsIde of ItS regularly scheduled ShIftS do not constItute a "shIft" an employee who works three hours on Saturday would not work a "ShIft" under 6 1 3 The other Issue In dIspute concerns the proper applIcatIOn of COR6 4 ("6 4") The Employer In effect, argues that when an employee performs work outsIde of hIS or her regularly scheduled ShIftS, the employee does so for reasons whIch are mutually agreed upon between the Employer and the employee The performance of overtIme or the Employer's agreement to a voluntanly exchange of ShIftS between employees are the types of mutually agreed upon decIsIOns whIch the Employer claims are covered by 6 4 and, therefore, depnve an employee of the week-end premIUm The Umon takes the VIew that the partIes never Intended 6 4 to be applIed In such a way The partIes requested a determInatIOn of whether or not employees are entItled to payment of the week-end premIUm as provIded for In 6 1 3 In each of the folloWIng scenanos Scenario 1 - Overtime A. Employee X, a classIfied employee works her regular scheduled ShIft from 7 a.m to 3 p.m on a Saturday She IS requested to and does, work past the end of her ShIft for an addItIOnal 4 hours (tIll 7 p.m ) In order to cover for a fellow employee for that 4 hours She IS paid overtIme for each of the 4 hours Is employee X entItled to be paid the week-end premIUm for these hours worked? B Employee X IS offered and accepts an overtIme shIft from 7 a.m to 3 p.m on a Saturday to cover the regularly scheduled ShIft of a fellow employee 8 She IS paid overtIme for each of the 8 hours Is employee X entItled to be paid the week-end premIUm for these hours worked? Scenario 2 - Less Than A Full Shift A. Employee X IS workmg a regularly scheduled ShIft from 7 a.m to 7 p m. on a Saturday She becomes III and cannot complete the ShIft, leavmg after only 6 hours (at 1 p.m) Employee Y also a classIfied employee, IS called m to replace her for the balance of the ShIft and works from 1 p m. to 7 p m. Is employee X entItled to be paid the week-end premIUm for these hours worked? Is employee Y entItled to be paid the week-end premIUm for these hours worked? B Would It make any dIfference to the answer to the questIOns m paragraph A If employee X worked less than 1Iz of the ShIft and employee Y worked more than 1Iz of the ShIft? C Would It make any dIfference to the answer to the questIOn m paragraph A If employee X worked more than 1Iz of the ShIft and employee Y worked less than 1Iz of the ShIft? D Would It make any dIfference to the answer to the questIOns m paragraph A above If the reason for employee X not completmg the ShIft were one of the followmg (i) a WSIB compensable mJury? (iI) takmg compensatmg tIme off (lIeu tIme)? (ill ) takmg vacatIOn tIme? (iv) takmg umon presIdentIal leave for umon actIvItIes? Scenario 3 - Call Back A. Employee X works a full regularly scheduled ShIft from 7 a.m to 7 p.m on a Saturday Her next scheduled ShIft IS on the followmg Monday commencmg at 7 a.m. She IS subsequently called back to work on the Sunday and works from 7 a.m to 10 a.m. She IS paid call back pay as per ArtIcle COR9 1 for four hours Is employee X entItled to be paid the week-end premIUm for these hours worked? Scenario 4 - Voluntary Exchange of Shifts A. Employee X IS scheduled to work a ShIft on a Thursday from 7 a.m. to 7 p m. Employee Y IS scheduled to work a ShIft on the followmg Saturday from 7 a.m. to 7 p m. Employees X and Y agree to exchange ShIftS and the exchange IS approved. Employee Y works on the Thursday and IS not paid 9 week-end premIUm Is employee X entItled to be paid week-end premIUm for the hours worked on Saturday? B Employee X IS scheduled to work a ShIft on a Saturday from 7 a.m. to 7 pm. Employee Y IS scheduled to work a ShIft on the folloWIng day Sunday from 7 a.m to 7 p.m Employees X and Y agree to exchange ShIftS and the exchange IS approved. Employee Y works on the Saturday and employee X works on the Sunday Is employee X entItled to be paid week-end premIUm for these hours worked? Is employee Y entItled to be paid week-end premIUm for these hours worked? Scenario 5 - Start and Finish Times A. There IS a regular ShIft at the InstItutIOn where employee X works whIch starts at 200 P m. on Fnday and runs to 10 00 P m on Fnday Is employee X entItled to be paid week-end premIUm when she works thIS ShIft? B Would It make any dIfference to the answer to the questIOn In paragraph A If the ShIft started at eIther 230 or 245 pm.? C There IS a regular ShIft at the InstItutIOn where employee X works whIch starts at 8 p m. on Sunday and runs to 8 a.m. on Monday Is employee X entItled to be paid week-end premIUm when she works thIS ShIft? D Would It make any dIfference to the answer to the questIOn In paragraph C If the ShIft ended at eIther 7 15 a.m. or 7 30 a.m.? Scenario 6 - Unclassified Employees A. Does It make any dIfference to the answers to any of the above questIOns If employees X and Yare unclassIfied? B UnclassIfied employee Z works 6 hours on a Saturday to cover an unexpected InstItutIOnal need. ThIS IS not a regularly scheduled ShIft and employee Z IS not replacIng any other employee Is employee Z entItled to be paid week-end premIUm for those hours worked? C UnclassIfied employee Z works from 7 a.m. to 7 p m. on a Saturday to cover an unexpected InstItutIOnal need. Employee Z IS not replacIng any other employee but there are other employees workIng regularly scheduled ShIftS from 7 a.m. to 7 p m Is employee Z entItled to be paid week-end premIUm for those hours worked? 10 As noted earlIer It IS necessary to determIne the meamng of the term "ShIft" In 6 1 3 In order to answer the above questIOns posed by the partIes In lA, a classIfied employee works a regular ShIft on Saturday and then works 4 hours at the end of her shIft. The employee IS entItled to the $8 00 ShIft premIUm for workIng her regular ShIft and the Issue IS whether the addItIOnal 4 hours of work constItute a "shIft" under 6 1 3 In 2A, a classIfied employee replaces an employee who IS unable to complete her regularly scheduled ShIft due to Illness Is the 6 hours of work performed by the replacement classIfied employee a "shIft" under 6 1 3') The same questIOn anses In 3A when an employee IS called back to work on Sunday for 3 hours In each of these Instances, the Umon submIts that the work performed by the employee constItutes a shIft, entItlIng the employee to the week-end premIUm The Umon argues that the ObVIOUS purpose of 6 1 3 IS to provIde addItIOnal compensatIOn to employees who work dunng the week-end. SInce the regular ShIftS scheduled by the Employer vary In length from 4 to 12 hours, the Umon maIntaInS that what IS Important IS the tImIng of the hours worked and not how many hours an employee works The Umon submItted that COR 4 and COR 5 whIch only address the schedulIng of shIfts, are not helpful In determInIng what the partIes meant when they used the word "ShIft" In 6 1 3 The Umon emphasIzed that the wordIng In 6 1 3 refers to "$8 00 per ShIft" and not "$8 00 per regularly scheduled ShIft" The Umon argues that If the partIes had Intended the word "ShIft" In 6 1 3 to mean a regularly scheduled ShIft, the partIes could have easIly used the necessary words to express such an IntentIOn. The Umon also maIntaIned that defimng the term "ShIft" In COR 5.2 to In effect, mean an employee's 11 regularly scheduled ShIft for the purpose of that artIcle and the absence of a defimtIOn for the word "shIft" In 6 1 3 are compellIng IndIcatIOns that the partIes Intended the word "ShIft" In 6 1 3 to mean somethIng other than a regularly scheduled shIft. The Umon argues that the purpose of ArtIcle 6 1 3 IS best met by defimng "shIft" to mean any contInUOUS penod of work. In support of ItS posItIOn, the Umon referred me to Speers, GSB 1043/89 (Samuels) whIch deals wIth an Issue InvolVIng the former ArtIcle 11 1 (now ArtIcle COR 1 1 1) The last sentence of the provIsIOn provIdes that If 50% of the hours worked fell wIthIn the penod between 5 00 P m. and mIdmght, the per hour premIUm shall be paid for all hours worked. The gnevors worked as resIdentIal counselors from 11 30 a.m to 11 00 P m. slept at the resIdence untIl 7 00 a.m and then worked for a 2 hour penod untIl 9 00 a.m. In determInIng how the afternoon ShIft premIUm was to be paid, the Board concluded that a shIft IS a contInuous penod of work and that the penod of work between 11 30 a.m to 11 00 p.m the penod pnor to the sleepIng penod, constItuted a "ShIft" and that the gnevors were entItled to the ShIft premIUm for all of the hours of the "shIft" The Employer argued that the context of the relevant provIsIOns and the purpose of those provIsIOns should lead to the conclusIOn that the partIes Intended the term "ShIft" In 6 1 3 to mean a regularly scheduled shIft. The Employer submIts that the work performed by employees In the three examples set out above whIch were extracted from the scenanos do not constItute a shIft, wIth the result that those employees are not entItled to the week-end ShIft premIUm The Employer submIts that If the partIes had Intended the 12 week-end ShIft premIUm to be paid for any hours worked dunng the week-end, the partIes would have drafted 6 1 3 to reflect that IntentIOn, lIke they dId for the afternoon and mght ShIft premIUms In the Employer's VIew the use of the word "ShIft" In 6 1 3 refers to the regular ShIftS that are scheduled by the Employer pursuant to COR5 The Employer also argues that an employee IS only entItled to the week-end premIUm when he or she works an entIre regularly scheduled ShIft dunng the week-end. The Employer referred In ItS submIssIOns to Monn, GSB 74/77 (Adams) whIch deals wIth an Issue InvolVIng what was then ArtIcle 10 3 The gnevor worked 711z hours of overtIme whIch overlapped the 12 hour penod before hIS next scheduled shIft. The Issue for the Board was whether the "CollectIve Agreement reqUIres that the gnevor be paid at the rate of tIme and one half for those hours worked that fell wIthIn 12 hours of the completIOn of the overtIme worked" The dISposItIOn of the gnevance depended on the meamng of the word "ShIft" as used In the phrase "the employee's prevIOUS ShIft" found In paragraph 10 3 After canvassIng three possIble InterpretatIOns of the word "ShIft" In thIS context, the GSB determIned that the words "the employee's prevIOUS shIft" referred to the employee's prevIOusly scheduled regular shIft. In reachIng thIS result, the Board had regard to the schedulIng provIsIOns In ArtIcle 10 partIcularly the relatIOnshIp between paragraphs 10 1 and 10 3 At some pOInt after Monn was decIded, the partIes added a sentence to what IS now COR5 2 whIch Incorporates the GSB' s InterpretatIOn of the word , ShIft" The addItIOnal sentence provIdes that "the term "ShIft" does not Include any penod of tIme In respect of whIch an employee IS entItled to overtIme payments or compensatIng leave In accordance wIth ArtIcle COR8 (OvertIme) and ArtIcle COR9 (Call 13 Back)" The effect of thIS language IS that the term "ShIft" means an employee's regularly scheduled ShIft for purposes of ArtIcle COR5.2 Although the above decIsIOns are helpful, they deal wIth the meamng of the term "ShIft" wIthIn partIcular provIsIOns of the CollectIve Agreement that have a umque context. The conclusIOns reached by the GSB In the Monn and Speers decIsIOns are not determInatIve of what the partIes Intended by the use of the word "ShIft" In 6 1 3 The partIes agreed In 6 1 3 to provIde a premIUm of $8 00 per ShIft to employees for all shIfts worked dunng the week-end. The purpose of the provIsIOn IS to provIde addItIOnal compensatIOn to employees who work week-end ShIftS HavIng regard to the nature of ItS operatIOn, the Employer schedules regular shIfts on the week-end and dunng the week-end It also assIgns employees work for varyIng penods of tIme In order to meet InstItutIOnal needs In the context of the partIes' submIssIOns, the term "shIft" eIther means any contInuous penod of tIme that an employee has worked, whether It be for 2, 4 or 7 hours, or It refers to a regularly scheduled shIft. Upon reVIeWIng the language of the CollectIve Agreement and partIcularly the language In COR6 It IS my conclusIOn that the partIes dId not Intend the term "shIft" to apply to the performance of work IrrespectIve of ItS duratIOn, as argued by the Umon. If the partIes had Intended that the performance of any work on the week-end warranted addItIOnal compensatIOn, It IS lIkely that they would have provIded such compensatIOn based on a dollar amount per hour worked dunng the week-end. I agree wIth the Employer's posItIOn that It IS sIgmficant that the partIes agreed to a "per ShIft" week-end premIUm, rather than a per hour week-end premIUm 14 In consIdenng the Umon's posItIOn, I have also had regard to certaIn comments made by ArbItrator Adams In the Monn decIsIOn. Mr Adams dealt wIth the Issue of whether the term "ShIft" was used by the partIes to refer to any penod of tIme that an employee has worked, whIch IS the same posItIOn advanced by the Umon In the case at hand. In rejectIng that meamng of the word "ShIft" the arbItrator wrote at pages 10-11 as follows However we do not thInk the partIes Intended such a broad meamng to be attnbuted to the term shIft. In the Industnal relatIOns commumty the term, as a mImmum, usually refers to a penod of tIme that would ordInanly constItute a day's work. Thus any penod of work, for example an ad hoc three or four hour overtIme assIgnment, would not constItute a shIft wIthIn the meamng of the term But, of course, the partIes to a contract can provIde otherwIse If they wIsh, although the wordIng of the agreement before us suggests the customary meamng IS what the partIes had In mInd. ThIS can be seen from ArtIcle 9 entItled Tour of Duty whIch descnbes a shIft as a penod of tIme havIng a predetermIned commencement and endIng. And the same approach IS adopted In paragraph 17 5 A further IndIcatIOn that the partIes Intend the term ShIft to apply to a predetermIned penod of tIme that would ordInanly constItute a day's work IS found In ArtIcle 15 whIch provIdes that "the present practIce for rest pen ods In each ShIft should be maIntaIned" Thus even wIthout advertIng to the dIre financIal consequences for the employer In holdIng that any overtIme assIgnment constItutes a shIft of work wIthIn the meamng of paragraph 10 3 we are satIsfied that the partIes dId not Intend thIS first possIble meamng Although the focus of that decIsIOn was on the meamng of the term "shIft" wIthIn the former ArtIcle 10 03 the above comments refer to provIsIOns whIch are stIll present In thIS CollectIve Agreement, such as the Tour of Duty provIsIOn. I agree wIth the VIew that the term "ShIft" usually refers to a penod of tIme that would ordInanly constItute a day's work. There IS nothIng In 6 1 3 whIch would suggest that the partIes Intended somethIng other than the usual meamng to apply Of the two possIble InterpretatIOns advanced by 15 the partIes, It IS my conclusIOn that the Employer's InterpretatIOn of the word "ShIft" reflects the IntentIOn of the partIes AccordIngly It IS my conclusIOn that the term "shIft" In 6 1 3 refers to the Employer's regularly scheduled ShIftS I wIll now turn to the Issue of the InterpretatIOn of 6 4 To reIterate, 6 4 provIdes that a "ShIft premIUm shall not be paid to an employee who for mutually agreed upon reasons works a ShIft for whIch he or she would otherwIse be entItled to a ShIft premIUm" I was referred to two GSB decIsIOns whIch Interpreted ArtIcle 11 4 a provIsIOn IdentIcal to the current 6 4 In FItchett and Shannon, 963 964/85 (Gandz) the gnevors, resIdentIal counsellors, requested a permanent afternoon ShIft and they were granted theIr requests by the employer They gneved the employer's faIlure to pay the afternoon ShIft premIUm The employer dId pay the ShIft premIUm to employees who were placed on a ShIft at management's request for operatIng efficIency The Board noted that the consIstent approach followed by the employer was as follows When the employer reqUIres a certaIn ShIft or ShIft schedule to be worked, It pays a premIUm whether or not the IndIVIdual prefers that partIcular ShIft or ShIft schedule When the IndIVIdual reqUIres a certaIn ShIft or ShIft schedule and the employer acqUIesces In that desIre, the shIft premIUm IS not paid. The Board determIned that It was the latter sItuatIOn whIch fell wIthIn the meamng of ArtIcle 11 4's termInology "mutually agreed upon reasons" In denYIng the gnevances, the Board concluded that the CollectIve Agreement does not reqUIre the employer to assume a premIUm cost for accommodatIng an employee's preference for more personally sUItable workIng hours 16 In MattIson, 1593/89 (Watters) the Board adopted the InterpretatIOn of ArtIcle 11 4 as artIculated In FItchett and Shannon and concluded from the facts that the gnevor dId not "reqUIre" the mght ShIft and was therefore entItled to the premIUm The Board found that the gnevor was only Interested In the mght ShIft because of her health and that she would have preferred to work other shIfts The Board noted that "the gnevor's request can be dIstIngUIshed from a sItuatIOn In whIch a partIcular ShIft IS sought sImply as a matter of personal preference or convemence" PremIUm payments are Intended to provIde addItIOnal compensatIOn to employees who work dunng less desIrable pen ods of tIme 6 4 In effect, provIdes that a premIUm wIll not be paid for work dunng those less desIrable hours when an employee requests to work a partIcular ShIft as a matter of personal preference or convemence and that request IS agreed to by the Employer In these cIrcumstances, the workIng hours can no longer be consIdered to be less desIrable and the Employer IS not reqUIred to pay the premIUm HavIng regard to the foregoIng InterpretatIOns of "ShIft" and 6 4 I wIll reVIew the SIX scenanos Scenario 1 - Overtime The Umon took the posItIOn that the payment of the week-end premIUm and the payment of overtIme for the same hours worked does not constItute pyramIdIng contrary to ArtIcle 15 because the two payments are for dIfferent purposes (see, Re AssocIated 17 Freezers of Canada Ltd. and Teamsters Umon, Local 419 (1979) 23 L.AC (2nd) 40 (Burkett) SInce the Employer IndIcated at the heanng that It was not suggestIng otherwIse, It IS unnecessary to deal wIth thIS Issue The CIrcumstances In lA and IB raise an Issue concernIng the applIcatIOn of 64 and lA raises a "ShIft" Issue as well Employee X In lA IS not entItled to the week-end premIUm for the 4 hours of overtIme on a Saturday whIch she works as a contInUatIOn of her regularly scheduled ShIft to cover for a fellow employee The overtIme hours In thIS Instance do not constItute a shIft SInce It would appear that the four hours do not represent a regularly scheduled shIft. The Employer had argued that the 4 hours of overtIme In thIS Instance IS a contInUatIOn of her regularly scheduled ShIft and not a dIStInCt shIft. In Monn, arbItrator Adams expressed the VIew that he was attracted "to those cases whIch have held the extensIOn of a ShIft by overtIme hours to be properly part of the shIft." In my VIew the 4 ad hoc overtIme hours can be consIdered as an extensIOn of X' s regularly scheduled ShIft, thereby constItutIng a part of one ShIft and not a separate shIft. The answer to lA would be dIfferent If the overtIme hours, whether they are for a penod of 4 8 10 or 12 hours, represent the regularly scheduled ShIft of the employee X IS covenng for In such an Instance X would be workIng a double shIft. SInce 6 1 3 reqUIres that the premIUm be paid per ShIft for all shIfts worked on the week-end, X would be entItled to the premIUm for the second ShIft In such CIrcumstances (subject to the Employer's 6 4 argument) even If It commenced at the conclusIOn of her regularly scheduled shIft. 18 The Employer concedes that employee X In IB IS workIng a ShIft wIthIn the meamng of 6 1 3 However as noted earlIer the Employer claims that the process of assIgmng overtIme creates a factual context whIch IS caught by 6 4 In my VIew 6 4 does not apply In an overtIme context to depnve an employee of the week-end premIUm. When the need for overtIme anses, the Employer requests an employee to work overtIme Although the employee may agree to work the overtIme, It IS the Employer that reqUIres a certaIn ShIft to be worked, not the employee The overtIme context does not fit the concept of "mutually agreed" In 6 4 as Interpreted by the Board In FItchett and Shannon. AccordIngly havIng regard to the CIrcumstances In IB X IS entItled to be paid the week- end premIUm for the 8 hour overtIme shIft on a Saturday I note that the Umon argued that the Employer was estopped from advancIng ItS 6 4 argument In the context of overtIme and the week-end premIUm because the Employer had always paid the afternoon and mght ShIft premIUms In overtIme sItuatIOns Indeed, the Employer's practIce of paYIng the afternoon and mght premIUms In overtIme sItuatIOns may Illustrate that the partIes dId not Intend 6 4 to apply In CIrcumstances dealIng wIth the assIgnment of overtIme In any event, gIven my vIew of the applIcatIOn of 6 4 as set out above, I need not deal wIth these other Issues Scenario 2 - Less Than A Full Shift The questIOns In thIS scenano anse out of CIrcumstances where an employee does not work a complete ShIft and another employee IS called In to work the balance of the 19 shIft. The Employer IndIcated at the heanng that an employee who commenced a week- end ShIft would be entItled to the premIUm If the employee dId not complete the ShIft due to Illness or a WSIB compensable Injury In 2A therefore, X would be entItled to the week-end premIUm. HavIng regard to my InterpretatIOn of "shIft" In 6 1 3 Y would not be entItled to the premIUm for the reason that Y dId not work a regularly scheduled shIft. Y only worked 6 hours of a 12 hour shIft. If the partIes had Intended that an employee would receIve the week-end premIUm for workIng part of a ShIft In such cIrcumstances, It would have been easy for them to express such an IntentIOn. TheIr faIlure to do so and the use of the term "ShIft" compels the conclusIOn that the $8 00 IS payable for workIng a complete week-end shIft. The answers to the questIOns In 2A would not be dIfferent If Y worked more than 1Iz of the shIft. The amount of tIme worked by Y IS Irrelevant as long as those hours are less than a complete regularly scheduled shIft. The reason for X not completIng the ShIft does make a dIfference As noted above X wIll receIve the week-end premIUm If the reason she could not complete the ShIft related to Illness or a WSIB Injury Where X does not work a full ShIft for reasons unrelated to Illness and Injury X would not be entItled to the week-end premIUm, even If X were paid as If she had completed the shIft. The week-end premIUm IS earned by workIng a week-end shIft. If X elected not to work a complete ShIft and Instead took compensatIng tIme off, vacatIOn tIme or umon presIdentIal leave for the remaInder of the 20 regularly scheduled ShIft, X would not be entItled to the week-end premIUm because X voluntanly decIded not to complete her shIft. Scenario 3 - Call Back X IS not entItled to be paid the week-end premIUm In a call back sItuatIOn because the 3 hours of work does not constItute a regularly scheduled shIft. I agree wIth the Umon's submIssIOn that the payment of the week-end premIUm and payment for a call back do not constItute pyramIdIng, SInce each payment IS made for a dIfferent purpose Scenario 4 - Voluntary Exchange of Shifts In my VIew the CIrcumstances In 4A and 4B are caught by 6 4 The exchange of shIfts IS done at the request of and for the convemence of employees The Umon emphasIzed that the agreement In these sItuatIOns IS really between employees, wIth lIttle Involvement from the Employer However an agreement between employees to exchange ShIftS has to be approved by the Employer AccordIngly a voluntary exchange of shIfts constItutes a request by employees to work a ShIft for theIr convemence dIsentItlIng both X and Y to the week-end premIUm. Scenario 5 - Start and Finish Times The four sItuatIOns outlIned In thIS scenano Involve CIrcumstances where an employee's ShIft does not commence or end wIthIn the tImeframe provIded for In 6 1 3 In these examples, the employees mISS out on beIng Included by very bnef pen ods of tIme The Umon suggests that It would be unfair from an employee's perspectIve to deny 21 the week-end premIUm, for example, when an employee works a 12 hour ShIft commencIng at 245 p.m on a Fnday and the employee stIll works over 11 hours dunng the week-end penod. However the partIes were qUIte specIfic In settIng out the preCIse tIme penod for whIch the week-end premIUm would be payable If! altered these tImes, whIch IS what the Umon In effect suggested In ItS submIssIOns, I would be clearly amendIng 6 1 3 contrary to ArtIcle 22 146 of the CollectIve Agreement. AccordIngly X would not be entItled to the week-end premIUm In the CIrcumstances descnbed In A, B C and D I note that the absence of any entItlement to the week-end premIUm In CIrcumstances where a ShIft commences shortly before 3 00 P m. on a Fnday or ends shortly after 7 00 a.m. on a Monday IS a further IndIcatIOn that the partIes dId not Intend that the week-end premIUm would be paid sImply because an employee worked some hours dunng the week-end. Scenario 6 - Unclassified Employees ArtIcle 31 16.2 of the Central Agreement provIdes that COR6 applIes to unclassIfied employees Therefore unclassIfied employees In correctIOnal servIces are covered by 6 1 3 UnclassIfied employees are on call and utIlIzed on an as needed basIs, and, as a general rule, they not provIded wIth regularly scheduled shIfts They fill In for classIfied employees who are absent for reasons such as Illness and vacatIOn, and they are offered work to meet unexpected InstItutIOnal needs The Employer agrees that If an unclassIfied employee IS assIgned to replace a classIfied employee on a regularly scheduled ShIft on the week-end, that employee would be entItled to the week-end 22 premIUm ConsIstent WIth ItS posItIOn, the Umon argues that any work performed by an unclassIfied employee on the week-end would entItle the employee to the premIUm GIven my InterpretatIOn of the term "shIft" In 6 1 3 the answers to the questIOns In the prevIOUS scenanos would not change If X and Y were unclassIfied employees In 6B and 6C Z IS not entItled to be paid the week-end premIUm In each Instance Z IS not workIng a regularly scheduled shIft. I wIll remaIn seIzed of these gnevances should the partIes encounter any dIfficultIes In ImplementIng thIS award or dIfficultIes wIth respect to remedIal Issues Dated at Toronto thIS 19th day of September 2001 " Ken Petryshen, Vice-Chair