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HomeMy WebLinkAbout2003-0232.James et al.04-06-09 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-0232 UNION# 2002-0340-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (James et al) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Sean Kearney Counsel Management Board Secretanat HEARING Apnl 2, 2004 and May 31 2004 2 Award At Issue IS whether the gnevors, five system ServIces SpecIalIsts WIth the Mimstry of FInance, are entItled to call-back pay under ArtIcle UN 9 1 of the collectIve agreement. ArtIcle UN 9 1 provIdes as follows 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 one and one-half (1 1Iz ) tImes hIS or her basIc hourly rate Although the gnevance was ImtIally broader the Umon subsequently lImIted the gnevors' claim for call-back pay to penods when the gnevors are called back to work folloWIng the afternoon "rotatIOn" (as described by the Employer) or "ShIft" (as descnbed by the Umon) There IS no claim that the gnevors are generally entItled to call-back pay Facts The gnevors are all System ServIces SpecIalIsts, classIfied as System Officer 4's, wIth the Mimstry of FInance They are Schedule 6 employees and hold qUIte an Important Job wIthIn the Mimstry EssentIally they trouble-shoot any problems that anse In the Mimstry's maInframe batch programs whIch run overnIght. All of the tax groups wIthIn the Mimstry run batch/computer programs overnIght to generate tax statements, notIces, and other tax documents whIch are sent out to the publIc Some batch programs are also run dunng the day The System ServIces SpecIalIsts schedule and momtor these batch programs If a problem anses, the System ServIces SpecIalIsts are called to deal wIth It. In addItIOn, dunng the day they support, develop and Implement procedures for the vanous tax branches wIthIn the Mimstry as well as deal wIth problems that anse The PosItIOn DescnptIOn states, In part, that employees are "[r]equned to work on-call support from remote access on a rotatIng 7day/24hour basIs" 3 All five of the System ServIces SpecIalIsts work out of the Mimstry's head office Histoncally they worked dunng the day Monday to Fnday between 7 30 a.m and 5 30 p.m Some would arnve early at 7 30 a.m. and then work for 7 1J4 hours Some would arnve later and work tIll 5 30 p.m After that, on a rotatIng basIs, someone would be "on call" to deal wIth any problems that arose There was also a second, back-up on-call employee The "core" hours of 8 30 a.m to 4 30 p.m had to be covered, but how that was done was decIded collegIally among the System ServIces SpecIalIsts In addItIOn, employees were "on-call" over the weekend, 7 00 a.m. to 7 00 P m. Saturday and Sunday to support batch programs run over the weekend. Manager Network and Computer OperatIOns for the Central AgencIes Cluster Tom Aspden testIfied that the group IS hIghly "professIOnal and Independent" and "do what's necessary to ensure that the system works" He stated that they perform a "cntIcal busIness functIOn" for the Mimstry and that "fleXIbIlIty" was reqUIred to meet unexpected productIOn Issues whIch "happen regularly" BegInmng September 30 2002, the Mimstry Implemented what It termed a "second ShIft" from 4 30 P m. to 12 30 a.m. A memo dated September 13 2002 to staff stated, In pertInent part, as follows SUBJECT. On-sIte RotatIng ShIft ThIS memo IS to confirm that begInmng September 30 2002 a second onsIte ShIft wIll commence The ProductIOn CoordInator who IS responsIble for supportIng mghtly batch IS reqUIred to come Into work at 430 p.m and work tIll 1230 AM Monday through Fnday excludIng holIdays 4 Once the 2nd ShIft has completed you are stIll reqUIred to support batch remotely on-call and wIll be paid accordIngly to the OPSEU CollectIve Agreement. Manager Aspden testIfied that thIS change was Implemented In order to reduce the number of after-hours calls to staff and to provIde a qUIcker response to problems that anse HavIng someone on-sIte, he explaIned, enables the System ServIces SpecIalIst to respond ImmedIately to any problem. A second, sImIlar memo was Issued on September 19 2002 That memo In pertInent part, states SUBJECT. On-sIte RotatIng ShIft As per our meetIng In June 2002, thIS memo IS to confirm that begInmng September 30 2002 a second on sIte ShIft wIll commence Once ProductIOn CoordInator at a tIme wIll work the 2nd ShIft, whIle the rest of the team IS on the day shIft. The ProductIOn CoordInator who IS responsIble for supportIng mghtly batch IS reqUIred to come Into work at 430 PM and work tIll 1230 AM Monday through Fnday excludIng holIdays Once the 2nd ShIft has completed you are stIll reqUIred to support batch remotely and call back/on-call wIll be paid accordIngly to the OPSEU CollecIve Agreement. The current procedure IS to be followed for assIgmng ShIft schedules Manager Aspden testIfied that the sentence statIng that call-back would be paid was a mIstake He testIfied that there was some confusIOn at the tIme regardIng changes made to the new collectIve agreement, IncludIng whether the employees were entItled to call-back pay In fact, In May 2002, call back pay was paid on a number of occaSIOns He subsequently learned that Schedule 6 employees are not entItled to call back and the practIce ceased. 5 On August 7 2003 the Mimstry Issued a memo to all OPSEU Schedule 6 Excluded and UnclassIfied Staff In the Enterpnse Technololgy SolutIOn Staff regardIng, among other thIngs, call back pay The memo In relevant part, states The CAC management team has recently become aware of some Incorrect applIcatIOn of the Call Back provIsIOns of the OPSEU CollectIve Agreements to Systems Officers In Schedule 6 In order to remedy thIS sItuatIOn, the payment of Call Back to OPSEU Systems Officers In Schedule 6 has been termInated. ThIS actIOn IS In accordance wIth a decIsIOn of the Gnevance Settlement Board (#1055/88 Krete and MOL) whIch concluded that Schedule 6 OPSEU employees have no entItlement to the Call Back provIsIOns of the OPSEU CollectIve Agreement. ThIS InterpretatIOn has been confirmed by Management Board Secretanat. There was conflIctIng eVIdence concernIng the amount of flexIbIlIty that the employees have regardIng the afternoon shIft and whether It was matenally dIfferent than the day shIft. AccordIng to Harry James, who has worked the ShIft on a rotatIOnal basIs, there IS no real flexIbIlIty In terms of the hours on the afternoon, unlIke on the day shIft. Employees, he stated, are expected to arnve by 4 30 p.m and work untIl 1230 a.m ThIS IS true even when a problem anses dunng the mght whIch reqUIres tIme to solve In hIS VIew the employee IS stIll expected to report at 430 p.m the next day On cross-eXamInatIOn, he acknowledged that thIS was true on the day shIft as well - an employee could work late or have to log-In after hours, yet stIll report to work on tIme the next mormng. He agreed that employees come In early and work late If they are workIng on a problem and that thIS was due to the "nature of the Job" He testIfied that In that sItuatIOn, you "don't leave at 12 30 even though the ShIft IS fimshed." He agreed, on cross- eXamInatIOn, that even though the day ShIft hours were not set In stone, employees generally needed to be around those hours Further If an employee left for a doctor's appoIntment, they could be reached by cell-phone, whether on the day or afternoon shIft. On re-eXamInatIOn, he testIfied that If an employee went In earlIer than 4 30 P m. he could "not generally" leave before 12 30 a.m 6 Manager Aspden testIfied that the nature of the work on the day and the afternoon "rotatIOns" were the same, and that both were flexIble, dependIng on the problems that arose An employee mIght need to come In a lIttle earlIer or stay a lIttle later If an employee worked late, he or she "need not come In bnght and early the next day" but could "come In a couple of hours later If they chose" There IS no eVIdence, however that thIS was conveyed to employees In regard to the afternoon rotatIOn, or that It occurred In practIce He also testIfied that "core hours" had to be covered. For the day rotatIOn, the core hours were 8 30 a.m to 4 30 pm. and for the afternoon rotatIOn, the core hours were 430 p.m to 1230 a.m When at full complement, four employees worked the day ShIft, and one employee worked afternoons, on a rotatIng basIs In Mr Aspden's VIew the rotatIOns Involved wIth the System ServIces SpecIalIsts are markedly dIfferent than the 12-hour ShIftS worked by the Schedule 3 System Officers Those employees work from 7 00 a.m. to 7 00 p.m and then are replaced by another group of System Officers who work 700 p.m to 700 a.m. He referred to these as "hard ShIftS" wIth a "handover" to another group The collectIve agreement sets out the hours of work for the employees In dIfferent schedules ArtIcle UN 2- Hours of Work, provIdes In relevant part as follows UN 2 1 Schedule 3 and 3 7 The normal hours of work for employees on these schedules shall be thIrty-SIX and one-quarter (36 1J4) hours per week and seven and one quarter (7 1J4) hours per day UN 2.2 Schedule 4 and 47 The normal hours of work for employees on these schedules shall be forty (40) hours per week and eIght (8) hours per day UN 2 3 Schedule 6 7 The normal hours of work for employees on thIS schedule shall be a mImmum of thIrtY-SIX and one-quarter (36 1J4) hours per week. A number of provIsIOns were added In the latest collectIve agreement concermng Schedule 6 employees SpecIfically ArtIcles UN 8 7 1 was added. It provIdes Employees In Schedule 6 who perform authonzed work In excess of 7 25 hours on a regularly scheduled work day shall receIve (a) compensatIng leave of one-half ( 5) hours for each hour worked between 3625 and 48 hours, In respect of the total hours worked dunng the week on regularly scheduled work days, and (b) compensatIng leave of one (1) hour for each hour worked In excess of 48 hours per work week, In respect of the total hours worked dunng the week on regularly scheduled work days (c) The compensatIng leave shall be taken at a tIme mutually agreed upon. FaIlIng agreement, the mImstry shall reasonably determIne the tIme of the compensatIng leave Under UN 8 7 4 of the collectIve agreement, Schedule 6 employees who are reqUIred to work on a day off, "shall receIve eqUIvalent tIme off" Under UN 875 employees In Schedule 6 who "are assIgned to forest fire fightIng or related dutIes, shall be paid one and one-half (1 IIz) tImes the employee's basIc hourly rate, to be calculated on the basIs of thIrtY-SIX and one-quarter (36 1J4) hours per week, for all such work after eIght (8) hours In a 24 hour penod." UN 13 7 states that" [n]otwIthstandIng anythIng In ArtIcle UN 13 employees who are In classIficatIOns assIgned to Schedule 6 and who are reqUIred to work on a holIday Included In ArtIcle 47 (HolIdays) of the Central CollectIve Agreement shall receIve eqUIvalent tIme off" There IS a substantIal dIfference In monetary entItlement between the partIes' posItIOns Under the Employer's approach, If an employee IS reqUIred to assIst WIth a problem dunng the hours of 1230 a.m. to 7 30 a.m. he or she IS paid compensatory tIme under UN 8 7 1 at the rate of one-half hour for each hour worked for hours worked beyond 36.25 In the week, up to 48 8 hours per week, and then on a 1 1 basIs thereafter Under the Umon's VIew for a call-back under UN 9 1 employees are entItled to SIX hours pay Positions of the Parties The Union The Umon argues that UN 9 1 IS a general provIsIOn, applIcable to all employees who meet the terms of that provIsIOn, IncludIng the gnevors It submIts that the gnevors' Schedule 6 status IS Irrelevant, as determIned In the decIsIOn denYIng the Employer's earlIer motIOn to dIsmIss OPSEU (James et al) and MinistlY of Finance GSB No 0232/03 (September 24 2003) It also relIes on OPSEU (Graham et al.) and Ministry of Labour (1991) GSB No 160/90 et al (Kennedy) for the VIew that Schedule 6 employees are entItled to provIsIOns of general applIcabIlIty In the Umon's VIew any relIance by the Employer on the earlIer cases whIch relIed on the employees' Schedule 6 status or the fact that Schedule 6 employees were not entItled to overtIme can no longer be maIntaIned. In the Umon's VIew the compensatory leave set out In UN 8 7 lIS a form of overtIme In thIS case, the Umon contends that what matters IS whether or not the three cntena set out In UN 9 1 have been met. It asserts that the eVIdence establIshes that the three reqUIrements for entItlement to call-back pay were met by the gnevors (1) the gnevors left theIr place of work (2) they were subsequently called back to work, (3) and they were called back to work pnor to the startIng tIme of theIr "next scheduled ShIft" 9 The Umon submIts that the afternoon ShIft IS, Indeed, a "scheduled ShIft" wIthIn the meamng of UN 9 1 CItIng the defimtIOn of "shIft" in OPSEU (Baker Elliott) and Ministry of Labour (1990), GSB No 90/89 (KIrkwood) at p 9 as a "specIfied tIme of work whIch starts and ends on set tImes on a regular basIs" the Umon asserts that the afternoon ShIft meets that defimtIOn. It starts at 4 30 p.m and ends at 12 30 a.m. Any tIme worked before or after counts toward overtIme It asserts that the fleXIbIlIty enJoyed by employees In regard to the day ShIft IS absent In relatIOn to the afternoon ShIft SInce the "core hours" of 4 30 p.m to 12 30 a.m must be worked. In terms of any dIscrepancIes between the eVIdence of Mr Aspden and Mr James, the Umon asserts that the eVIdence of Mr James should be preferred, based on hIS supenor first- hand knowledge formed by performIng the Job It also notes that Mr James's testImony was consIstent WIth the two memos Issued by the Employer In September 2002, whIch state that the employees are "reqUIred" to work from 430 P m to 1230 a.m The Umon further contends that, operatIOnally It makes sense that there would not be fleXIbIlIty SInce there IS an operatIOnal need for someone to be there untIl 12 30 a.m FInally the Umon contends that In other cases, Schedule 6 employees who work a specIfic shIft have been provIded call-back pay by the Employer CItIng OPSEU (Gallucci Ansell Cappuccitti) and Management Board Secretariat (1996) GSB No 1262/93 et al (Bnggs) The Umon asserts that the purpose of call-back pay - to compensate employees for the Inconvemence of havIng to work dunng theIr off-duty hours - applIes to the sItuatIOn of the gnevors In support, It cItes to OPSEU (Elliott) and MinistlY of Labour (1999), GSB No 10 1282/97 (Bnggs) and OPSEU (Koncz) and Ministry of Community and Social Services (1989), GSB No 0748/88 (Venty) The Employer The Employer asserts that the collectIve agreement IS clear that Schedule 6 employees are never entItled to call-back or premIUm overtIme pay The only exceptIOn to thIS IS the specIfic provIsIOn for Schedule 6 employees fightIng forest fires, whIch IS clearly InapplIcable It asserts that what the Umon IS askIng for through thIS decISIOn, IS to provIde the gnevors wIth a contractual benefit - premIUm overtIme pay - that It has never obtaIned at the bargaInIng table or from the GSB before In relatIOn to Schedule 6 employees The Employer asserts that the Board should not Ignore the pnor case law whIch set out gUIdIng pnncIples It argues that the provIsIOn of compensatIng leave for work performed by Schedule 6 employees In excess of 7 1J4 hours of work per day as set out In UN 8 7 1 does not negate the pnor case law but Instead, reInforces the VIew that Schedule 6 employees are not entItled to overtIme at a premIUm rate It submIts that call-back pay IS precIsely that - overtIme at a premIUm rate It submIts that hIstoncally Schedule 6 employees have long receIved compensatory tIme off for extra work, and UN 8 7 1 was not a "sea change" In that regard, as asserted by the Umon. There IS stIll no premIUm overtIme pay for Schedule 6 employees The Employer further argues that there was a change In ArtIcle UN 9 In the most recent collectIve agreement, but It had nothIng to do wIth Schedule 6 employees Instead, SectIOn 9 2 was added. Under It, employees no longer physIcally have to return to the workplace In addItIOn, the ImtIal call back and any subsequent calls dunng the same four-hour penod "wIll be 11 treated as a sIngle' call back to work' for pay purposes" Yet, It asserts, there was no change to expand the provIsIOn to Include Schedule 6 employees The Employer contends that for a new financIal benefit to apply the partIes must use clear and uneqUIvocal language, and that the onus rests wIth the Umon to establIsh such entItlement. It notes that the call-back provIsIOn would reqUIre the Employer to pay substantIally more for the same work than under UN 8 7 1 compensatory leave and contends that express language would be reqUIred to award such a substantIal benefit. It asserts that the Umon faIled to meet ItS onus In support, It cItes to Re Noranda Mines Ltd (Babine Division) and United Steehwrkers of America, Local 898 [1982] 1 W.L AC 246 (Hope) Re Canada Post Corp and C UP W (Schlossel) (1993) 39 LAC (4th) 6 (BIrd) Re Cardinal Transportation B C Inc and C UP.E, Local 561 (1997) 62 L.AC (4th) 230 (DevIne) FInally the Employer asserts that the type of work performed by the gnevors cannot be descnbed as "ShIft work" As In the earlIer GSB decIsIOns In relatIOn to thIS Issue, the Employer argues that a sIgmficant percentage of the gnevors' work IS performed outsIde of regular hours It notes that there are penod of hIgh demand and pen ods of no demand, and that need for the gnevors' servIces can anse at any tIme not Just theIr regular hours It notes that they do not clock In or out, or need to report In. They work Independently and autonomously They do not "replace" another System ServIces SpecIalIsts when they report to work, and they can leave as long as they are reachable by cell phone It asserts that the gnevors have more flexIbIlIty than employees In a tradItIOnal ShIft Job and regularly work at tImes other than theIr usual hours In the employer's VIew they are hIghly specIalIzed, professIOnal employees who do not perform "shIft" work In the true sense In support of ItS posItIOn, the Employer relIes on OPSEU (H ender son) and MinistlY of Energy (1990), GSB No 1090/89 (McCamus) OPSEU 12 (Baker Elliott) and Ministry of Labour supra; OPSEU (Krete) and Ministry of Labour (1989) GSB No 1055/99 (Venty) OPSEU (Hill) and Ministry of Natural Resources (1990), GSB No 1134/90 (Wnght) The Employer further asserts that there IS no sIgmficant dIfference between the day and afternoon rotatIOns The employees perform the same type of work and face the same expectatIOns and realIty They often work for more than 8 hours, regardless of theIr startIng tIme whIch IS consIstent WIth the "on-call" nature of theIr work. In the Employer's VIew It IS unreasonable to assert that addIng a second afternoon rotatIOn transformed the gnevors out of Schedule 6 The Employer argues that there IS no provIsIOn In the collectIve agreement recogmzIng IntermIttent shIft work. The Employer further argues that the change In the Umon's posItIOn to lImIt the gnevors' claim for call-back pay to the afternoon rotatIOnal shIft was a strategIc one, desIgned to make It more palatable to the Board to permIt a restncted entItlement to call-back pay In lImIted cIrcumstances In the Employer's VIew that approach IS really the "thIn edge of the wedge" to a claim for broader entItlement. Decision In my earlIer decIsIOn In thIS case concermng the Employer's motIOn to dIsmIss, I determIned that the gnevors' status as Schedule 6 employees IS not determInatIve of the Issue of entItlement to call-back pay The DecIsIOn, at p 10 states Based on my readIng of the case law partIcularly OPSEU (Baker Elliott) supra, It IS not sufficIent to rely on the status of an employee as a Schedule 6 employee What matters IS whether under the specIfic facts, the essentIal elements reqUIred to qualIfy for call-back pay have been met. 13 After consIdenng the cloSIng arguments of the partIes, I am stIll of that VIew The Board's decIsIOn In OP SEU (Graham et al.) and Ministry of Labour supra, supports that determInatIOn, as does the Board's decIsIOn In OPSEU (Baker Elliott) supra In the latter case, at p 8 the Board stated that "[a]s the artIcle refers to the genenc "employee" It IS not lImIted to any specIfic type of employee" In Graham at Issue was whether Schedule 6 employees had any entItlement to eIther on-call or stand-by pay The Employer argued that Schedule 6 employees, for a vanety of reasons, could never be entItled to those provIsIOns The Board held at p 15 that there IS not "a totally dIfferent and separate regIme set down for Schedule 6 employees, but rather the Issue was whether or not a partIcular artIcle on ItS language was Intended to apply to a Schedule 6 employee" The Board contInued at p 16 In consIdenng the specIfic language of the ArtIcles beIng consIdered In thIS arbItratIOn to determIne If they were Intended to apply to Schedule 6 Employees, we belIeve that we should approach that task on the basIc premIse that collectIve agreement language confernng benefits on employee wIll be Intended to benefit all employees who are subJect to the collectIve agreement In the absence of specIfic exclusIOnary language for a partIcular group of employees or some IndIcatIOn that In the employment context those employees could not have been Intended to be benefited by the SectIOn. In thIS regard, there are many places In the collectIve agreement where the partIes specIfically refer to the employees' "schedule" In conferrIng benefits ArtIcle UN 9 IS not such a provISIOn. It deals wIth, as the Board In OPSEU (Baker Elliott) supra stated, "the genenc" employee Consequently the questIOn of entItlement IS not determIned by the employees' status, but by whether or not they meet the terms of the provISIOn. ThIS rulIng IS not to suggest that the gnevors' Schedule 6 status IS Irrelevant. In my VIew It IS hIghly relevant because that status relates to the nature of the work performed by the gnevors and Impacts the determInatIOn of whether the gnevors' have a "next scheduled ShIft" 14 wIthIn the meamng of ArtIcle UN 9 1 In thIS case, there IS no questIOn that the gnevors' meet the first two cntena set out In ArtIcle UN 9 1 There IS no dIspute that the gnevors' left theIr workplace and were called back to perform authonzed work, albeIt remotely from home The dIspute centers on whether they were called back "pnor to the startIng tIme of hIS or her next scheduled ShIft " For a number of reasons, thIS IS qUIte a dIfficult determInatIOn to make In thIS case On the face of It, partIcularly the two memos Issued by the Employer In September 2002, It sure looks lIke the gnevors, on a rotatIng basIs, are assIgned to work a specIfic shIft from 4 30 p.m to 12 30 a.m. Monday to Fnday The memos even use the term "ShIft" rather than the term "rotatIOn" that the Mimstry used at the heanng. The eVIdence IS clear that Mr James understood that those were reqUIred hours, and even Mr Aspden testIfied that those were "core hours" for whIch coverage was reqUIred. The flexIbIlIty that Mr Aspden talked about - If an employee worked late, he could then come In later - does not seem to have been relayed to the staff, nor IS there eVIdence that It was Implemented In regard to the afternoon work. The dIfficulty wIth leavIng the analysIs at that IS the eVIdence In the record concernIng the nature of the gnevors' work and the fact that theIr work often reqUIres them to work outsIde of the standard hours EssentIally a sIgmficant proportIOn of the gnevor's work IS to fix problems that develop wIth the batch programs and computer system, so that system keeps workIng 24/7 Those problems develop wIth some frequency but unpredIctably whIch often reqUIres the gnevors to work late or come In early The length of any partIcular workIng day IS unpredIctable, whether the employee IS workIng dunng the day or In the afternoon. In lIght of that, It IS dIfficult to conclude that the gnevors have "a specIfied tIme of work whIch starts and 15 ends on set tImes on a regular basIs. OPSEU (Baker Elliott) supra at p 9 Even wIth the reqUIred "core hours" the sItuatIOn IS more flUId than that. The sItuatIOn of the gnevors appears to be qUIte dIfferent than the Schedule 6 employees In OPSEU (Gallucci Ansell Cappaccitti) supra even through the gnevors there appear to perform sImIlar work. In that case, when the Employer moved to a 24-hour operatIOn the employees opted to work a 12-hour shIft. The 12-hour ShIft was desIgned to correspond to the ShIft worked by Data Base TechmcIans, who are Schedule 3 employees PrevIOusly the gnevors had worked daytIme hours, wIth fleXIbIlIty as long as there were employees avaIlable to respond to call s After they moved to a 12-hour shIft, the eVIdence showed that theIr schedules were "predIctable" The Employer paid them call back pay If they were called Into work pnor to the commencement of theIr next shIft. It should be noted, however that the Issue In that case dId not Involve the gnevors' entItlement to call-back pay but whether or not the GSB had JunsdIctIOn to reqUIre the Employer to reVIse the employees' Schedule 6 status The eVIdence here showed that the nature of the work that the gnevors perform IS largely the same on both the day and afternoon ShIftS What makes the afternoon ShIft less flexIble IS the fact that only one employee works It. That IS what necessItates theIr beIng there dunng the core hours, not the fact that they have a set schedule But even then, when a problem anses, they often work beyond the core hours The fact that the extra tIme worked IS now consIdered "overtIme" under UN 8 7 1 does not convert the employees' regularly scheduled hours Into a set shIft. The overtIme compensatIOn IS recogmtIOn that, generally a Schedule 6 employee IS to work a 7 1J4 hour day and 37 1J4 hours per week but that the actual tIme worked may often be more The gnevors here 16 work, as reqUIred, to solve the problems that anse In the computer/batch system. They do not get to leave when the "ShIft" ends Although the Issue IS very close based on the eVIdence in its totality I conclude that the gnevors, when they are assIgned to the afternoon rotatIOn (or "ShIft") do not have a "next scheduled ShIft" wIthIn the meamng of ArtIcle UN 9 1 The gnevors' work, qUIte often, does not have "a specIfied tIme of work whIch starts and ends on set tImes on a regular basIs" Due to the nature of theIr work, the length of any partIcular work day IS unpredIctable It may start before 4 30 pm. and contInue after 1230 a.m The gnevors "are not ShIft workers In the tradItIOnal sense." OPSEU (Krete) and Ministry of Labour supra at p 7 They certaInly have regular hours, but often theIr work reqUIres them to work at other tImes as well Conclusion For all of the reasons set forth above, I conclude that the reqUIrements for entItlement to call-back pay have not been establIshed. The gnevance must therefore be dIsmIssed. Issued thIS 9th day of June, 2004 In Toronto