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HomeMy WebLinkAbout2004-1103.Frame.05-07-12 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# 2004-1103 UNION# 2004-0123-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Frame) Union - and - The Crown In RIght of Ontano (Ontano Clean Water Agency) Employer BEFORE Deborah lD LeIghton Vice-Chair FOR THE UNION Jim Paul Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER LIsa Compagnone Counsel Management Board Secretanat HEARING March 30 2005 2 DeCISIon Mr Malcolm Frame, an electncIan wIth OCW A, gneves that he was not paid properly under the provIsIOns of the collectIve agreement, for work performed when he was called back to work on two occaSIOns on a statutory hohday The partIes agreed to the followmg statement of facts . The Gnevor holds a full tIme classIfied posItIOn as a Mamtenance ElectncIan Foreman wIth Ontano Clean Water Agency at the Lambton Water Treatment Plan and Pumpmg System, Sarma. . In thIS posItIOn the Gnevor's regularly scheduled ShIft IS for 8 hours per day, and 40 hours per week, Monday to Fnday . The Gnevor was not scheduled to work on Apnl9, 2004, Good Fnday . Good Fnday IS a hohday mcluded under artIcle 47 (Hohdays) of the Central Agreement. . On Apnl9, 2004, the Gnevor was called back to work. He worked from 11 OOam to 3 30pm to repair pump problems, whIch were consIdered to be emergency problems Pnor to leavmg work he filled out a callout form whIch describes the work completed and the tIme taken. . On Apnl9, 2004, the Gnevor was called back to work a second tIme He worked from 5 OOpm to 7 30pm on the plant Scada System. Pnor to leavmg he filled out a callout form, whIch describes the work completed and the tIme taken. . For the work performed on Apnl9, 2004 the Employer compensated the Gnevor the hohday pay rate of 8 hours at (2) tImes hIS basIc hourly rate, m accordance wIth artIcle UN 13 1 of the Umfied Bargammg Umt CollectIve Agreement. . He was also compensated an addItIOnal 8 hours pay at hIS regular hourly rate, m accordance wIth artIcle UN 13 2 of the Umfied Bargammg Umt CollectIve Agreement. 3 . As well, he was compensated an addItIOnal 4 hours at 1 5 tImes hIS basIc hourly rate, m accordance wIth artIcle UN 9 1 of the Umfied Bargammg Umt CollectIve Agreement. . Sheldon Jones, Mamtenance Mechamc 3, was also called back to work on Apn19, 2004 and was paid callback pursuant to UN 13 1 and UN 13.2 . The Gnevor filed a gnevance allegmg demal of full premmm pay as per the Umfied Bargammg Umt CollectIve Agreement. UNION'S SUBMISSION The umon representatIve, JIm Paul, argued that the gnevor should be paid pursuant to ArtIcles UN 13 1 and 13.2 for both call- backs, that IS, eIght hours at double tIme plus an addItIOnal eIght hours twIce He argued that the gnevor was called back to work two tImes on Apn19, 2004, a statutory hohday and, therefore, should receIve the supenor benefit two tImes Mr Paul rehed on OPSEU (Bell) and Ministry of Community and Social Services (1979) 116/78 (Swmton) where the board held that an employee called back to work on a statutory hohday should receIve the pay for workmg on a statutory hohday, whIch IS a greater or supenor benefit than standard call back pay Mr Paul also drew my attentIOn to the purpose of call back and hohday pay as noted m Bell Mr Paul also rehed on OPSEU (Elliot) and Ministry of Labour (1999) 1282/97 (Bnggs) where the Board held that an employee who was called back to work at 4 45pm untIl 5 06pm and for a second tIme at 5 37pm untIl 6 02pm must be compensated for two call- backs or two four hour penods at tIme and a half. The board rejected the employer's argument that paymg the gnevor twIce was pyramldmg 4 In sum, Mr Paul submItted that applymg the prmcIples of Bell and Elliot, the gnevor should be paid hohday pay twIce for the two call-backs on Apn19, 2004 EMPLOYER'S SUBMISSION Counsel for the employer, LIsa Compagnone, submItted that the gnevor had been paid properly pursuant to ArtIcles UN 13 1 and 13 2 She stated that the gnevor actually worked a total of 7 5 hours on Apnl 9 Smce the gnevor met the cntena for both call- back pay and hohday pay, he receIved hohday pay Counsel also noted that m thIS case the gnevor was paId for the second tIme he was called mto work for 4 hours at one and a half tImes hIS hourly rate m accordance wIth ArtIcle UN 9 1, the call-back provISIOn. She noted that It was not necessary for the employer to make thIS payment, smce the gnevor was adequately compensated for both call-backs by receIVmg the supenor hohday pay benefit for the first call-back. Ms Compagnone argued that the umon's posItIOn blurred ArtIcle UN 9 and ArtIcle UN 131 She argued that where an employee quahfies for two benefits then he or she IS entItled to the supenor benefit. In thIS case, the supenor benefit was under ArtIcle UN13 1 and 13.2 Counsel also argued that the umon's posItIOn would result m pyramIdmg of benefits, whIch IS not permItted under the collectIve agreement. She rehed on the followmg cases m support of her submIssIOn. OPSEU (Bell) and The Crown in Right of Ontario (Ministry of C ollllllunity and Social Services) (1979) GSB 116/78 (Swmton), OPSEU (Tocher) and The Crown in Right of Ontario (Ministry of Correctional Services) (1979) GSB 149/78 (Weathenll), OPSEU (Kruger et al) and The 5 Crown in Right of Ontario (Ministry of Correctional Services) (1988) GSB 1569/87 (Dehsle), Re Windsor Western Hospital Centre Inc and Service Employees Union, Local 210 (1976) 13 L.A.C (2d) 78 (Weathenll) DECISION The Issue before me IS what the proper pay IS under thIS collectIve agreement for an mdIvIdual who IS called mto work two tImes on a statutory hohday The relevant sectIOns of the collectIve agreement are as follows ArtIcle UN 9 - Call Back UN 9 1 An employee who leaves hIS or her place of work and IS subsequently called back to work pnor to the startmg tIme of hIS or her next scheduled ShIft shall be paid a mInImUm of four (4) hours pay at one and one-half (11;2) tImes hIS or her basIc hourly rate UN 9.2 Where an employee IS contacted by the Employer outsIde the workplace pnor to the startmg tIme of hIS or her next scheduled ShIft m cIrcumstances where such contact IS consIdered to be a "call back to work" but the employee IS not reqUIred to physIcally attend at the workplace, the employee shall be paid a mInImUm of four (4) hours of pay at one and one-half (1 1;2) tImes hIS or her basIc hourly rate The InItIal call and any subsequent calls dunng that same four-hour penod wIll be treated as a smgle "call back to work" for pay purposes ArtIcle UN 13 - Hohday Payment UN 13 1 Where an employee works on a hohday mcluded under ArtIcle 47 (Hohdays) of the Central CollectIve Agreement, he or she shall be paid at the rate of two (2) tImes hIS or her basIc hourly rate for all hours worked wIth a mInImUm credIt of seven and one-quarter (7 1;4), eIght (8), or the number of regularly scheduled hours, as apphcable 6 UN 13.2In addItIOn to the payment provIded by ArtIcle UN 13 1, an employee who works on the hohday shall receIve eIther seven and one-quarter (7 1;4) or eIght (8) hours pay as apphcable at hIS or her basIc hourly rate or compensatmg leave of seven and one-quarter (7 1;4) or eIght (8) hours as apphcable, provIded the employee opts for compensatmg leave pnor to the hohday ArtIcle UN 15 - Non-PyramIdmg ofPremmm Benefits UN 15 1 There shall be no duphcatIOn or pyramIdmg of any premmm payments or compensatmg leave provIded by the Central CollectIve Agreement or any Bargammg Umt CollectIve Agreement as hsted m ArtIcle 1 (RecogmtIOn) The Issue of how an employee IS to be paid under thIS collectIve agreement when he or she IS called back to work on a statutory hohday was decIded m Bell (supra) In that case, the gnevor was called mto work on an Easter Monday He worked for two and half hours The employer paid hIm pursuant to the call-back provIsIOns of the collectIve agreement. The gnevor claimed that smce he had worked on a statutory hohday he was entItled to hohday pay The board looked at the purpose of call-back and hohday pay" Call-back pay IS a premmm payment negotIated m order to protect an employee who IS called back to work at Irregular tImes outsIde hIS normal workmg hours The reqUIrement that the employer pay a certam mmImum amount has a dual purpose to compensate the employee for the personal mconvemence and travehng expense caused by the call-back and to restram the employer from calhng employees back to work unless It IS Important to do so (cItatIOns omItted) Premmm payments for hohday work are desIgned to achIeve the same purposes - to compensate the employee at a bonus rate for work performed on a hohday to whIch he IS entItled by the collectIve agreement or by statute and to dIscourage the employer from demandmg such work unless necessary or Important. (p 4-5) 7 The board m the Bell case decIded that the gnevor was entItled to the supenor benefit when he was called back once on a statutory hohday The supenor benefit was hohday pay The board held. The employee called back to work on a hohday, suffers the double mconvemence of the call-back, and the necessIty ofworkmg on a hohday He should not be requIred to accept less compensatIOn than an employee scheduled to work on that hohday who may only work a few hours but who wIll stIll be guaranteed 71/4 or 8 hours of work, as IS appropnate (p 7) The Issue of how to compensate an employee who IS called back to work two tImes on a day that IS not a statutory hohday, but where the call-back tImes overlap, has also been decIded by thIS board. In Elliot (supra), the board held that the gnevor was entItled to be paid for two call-backs, that IS, a mImmum of four hours pay at tIme and a half for each call-back The board held, reJectmg the employer's argument that thIS would result m pyramIdmg benefits, that ArtIcle UN 9 1 provIdes the four hours pay no matter how long a person actually works dunng the call-back. The board held "whIle It IS true that the gnevor IS to be paid twIce, there IS no duphcatIOn because there was two mstances of call-back. " In the case before me, the partIes agreed m theIr Statement of Facts that the gnevor was called back to work on two separate occaSIOns on Apnl 9 Applymg the prmcIples IdentIfied m Elliot, I must find that the gnevor IS entItled to be compensated for two call- backs The gnevor was compensated for the first call-back accordmg to the prmcIples 8 IdentIfied m the Bell case Thus, he was paid accordmg to the supenor benefit of the hohday pay for the first call-back. The questIOn IS how he should be paid for the second call-back. The employer takes the posItIOn that there should be no addItIOnal payment for thIS second call-back, and the umon takes the posItIOn that the second call-back should be compensated like the first - m other words, the full twenty-four hours Havmg carefully consIdered the submIssIOns of the partIes, I have concluded that the umon's posItIOn IS preferable The gnevor was called back to work two tImes on a statutory hohday As Professor Swmton noted m Bell, when an employee IS called back to work on a hohday, not only does he suffer the mconvemence of a call-back, but also of havmg to work on a hohday In thIS case, the gnevor had the mconvemence of bemg called back to work twIce on a hohday Thus, the supenor benefit was trIggered twIce I am not persuaded that thIS results m a pyramIdmg of benefit as described m ArtIcle UN 15 1 The same argument was rejected m the Elliot case ArbItrator Bnggs quoted and agreed wIth the reasomng m Re Board of Trustees of School District No 39 (Vancouver) and International Union of Operating Engineers Local 963 (1995) 47 LAC (4th) 248 (HIckhng) ArbItrator HIckhng reasoned that wIth regard to call back-pay- The purpose of the clause IS not to compensate for hours actually worked but for the mconvemence of bemg called out to work dunng one's off-duty hours The premmm does not depend upon the extent of the mconvemence It does not matter, for example, whether the mdIvIdual hves 5 or 45 mmutes' travel tIme from the school. Nor does It matter whether the call or calls come dunng the day, or m the mIddle of the mght. The employer does not expect the mdIvIdual to hnger on the work sIte so as to use up the entIre three hours He IS entItled to return home after deahng wIth the emergency Payment of a second premmm when another call comes wIthm three hours of the first would not, m my VIew, constItute 9 pyramIdmg It IS certamly not pyramIdmg of a tradItIOnal kmd. Payment would be made for the call-outs, not for the hours actually worked. Payment of a second premmm m respect of another emergency call-out IS not WIth the mIschIef at whIch the antI-pyramIdmg presumptIOn IS aimed. (p 9) In Elliot ArbItrator Bnggs noted that she had one benefit at Issue before her and that was call-back pay She found further that there was no duphcatIOn of benefits because there were two mstances of call-back even though the second call-back occurred wIthm the hours of the first. The same IS true m the case before me There are two call-backs The only dIfference IS that the two call-backs trIgger the supenor hohday benefit twIce There IS no lOgIC m findmg that premmm pay IS tnggered for the first, but not the second. Nor would It be fair or wIthm the purpOSIve approach noted m Elliot and Bell that the gnevor be paid the same as someone called back once or scheduled to work on a hohday Here the gnevor IS entItled to be compensated for the double mconvemence of bemg called back to work two tImes on a hohday Although the supenor benefit IS trIggered because the call-back occurs on a statutory hohday, the work Itselfremams "call-back" work. Thus, the trIggenng of the supenor benefit of hohday pay does not allow the employer to treat the employee as If he was scheduled to work on a hohday, and sImply add up the actual hours worked. There IS a sIgmficant dIfference between bemg scheduled to work on a statutory hohday and bemg unexpectedly called mto work for an emergency As noted m Board of Trustees case (supra), the person called back would be entItled to go home once fimshed the emergency work, but the pomt remams that the person has been mconvemenced by bemg called to 10 work on off duty hours Kruger IS thus dIstmgUIshable from the case before me The board m Kruger dechned to award an addItIOnal eIght hours of compensatmg leave pursuant to ArtIcle 19.2 to a gnevor who worked an overtIme shIft on a statutory hohday ThIs case mvolved scheduled work and an overtIme shIft and, therefore, the gnevor was paid under ArtIcle 19 Mr Frame IS, m effect, bemg paid for call-back work, but at a specIal rate because the work was done on a hohday For the reasons noted above, the gnevance IS allowed. The employer IS hereby ordered to pay the gnevor the dIfference between the call-back pay that he receIved under ArtIcle UN 9 1 and hohday pay pursuant to ArtIcles UN 13 1 and 13 2, wIth mterest for the second call-back. I shall rem am seIzed m the event that there are any dIfficultIes wIth Implementmg thIS award. Dated at Toronto thIS lih day of July, 2005