HomeMy WebLinkAbout2015-2937 et al.James et al.18-03-07 DecisionCrown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2015-2937; 2015-2938; 2015-2939; 2016-0011; 2016-0113; 2016-0114; 2016-0383; 2016-0384;
2016-2176; 2016-2177; 2016-2179
UNION# 2015-0430-0009; 2015-0430-0010; 2015-0430-0011; 2015-0430-0012; 2016-0430-0002; 2016-0430-
0003; 2016-0430-0006; 2016-0430-0007; 2016-0430-0009; 2016-0430-0010; 2016-0430-0012
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(James et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Government and Consumer Services) Employer
BEFORE
D.J.D. Leighton
Arbitrator
FOR THE UNION
Frank Inglis
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Cathy Phan
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARINGS September 20, 2016 and
March 8, 2017
-2-
DECISION
[1] A group grievance (James, et al) was filed on behalf of several grievors,
Customer Care Specialists (CSR 3) in the Ministry of Government and Consumer
Services, on December 3, 2015. Subsequent grievances were filed by
employees of the same group in the Eastern Contact Centre on various dates in
2016. The parties agreed to consolidate these grievances on March 8, 2017. The
grievances claim that the employer has violated the collective agreement,
specifically Article UN 6, by not paying the shift premium provided when
employees work a regular schedule, which includes the hours of 5:00 p.m. to
7:00 a.m.
[2] The union submitted that the grievors were at times regularly scheduled to work
shifts including the hours between 5:00 p.m. and 11:00 p.m. and therefore should
have received the premium pay. A shift from 11:00 a.m. to 7:00 p.m. attracts
premium pay for the hours of 5:00 p.m. to 7:00 p.m., in the union’s view. Until
2015, the employer had always paid the shift premium to those who were
scheduled to work beyond 5:00 p.m.
[3] The union stated further that the employer changed a 30-year-old practice, and
began to deny the shift premium, applying a new policy that to be eligible for the
premium, 50% of an employee’s scheduled shifts in a month must end after 5
pm. The union’s position is that the collective agreement and the jurisprudence of
the Board support a finding that the premium is owing to employees who were
scheduled to work after 5:00 p.m. and seeks an order for premium pay owing to
each grievor with interest.
[4] The employer stated that premium pay is for employees that regularly work
during the hours after 5:00 p.m. These hours have been recognized as generally
undesirable and therefore attract shift premium. However, the employer argued
that the new 50% rule is reasonable to determine eligibility for the premium pay,
and asks that the grievances be dismissed.
[5] The parties referred these grievances to mediation/arbitration in accordance with
Article 22.16 of the collective agreement. At the outset of the hearing, the parties
agreed that I had the jurisdiction to deal with this matter and asked that I issue a
decision without precedent or prejudice, and without written reasons.
[6] Having carefully considered the submissions of the parties, as well as the
jurisprudence of the Board, I have decided to grant these grievances. I find that
the employer’s application of a new threshold of requiring 50% of an employee’s
scheduled shifts to be in the premium zone, before any premium is paid, is
inconsistent with the language of the collective agreement. The language in UN
6.1 clearly provides that “an employee shall receive a shift premium…for all
hours worked between 5:00 p.m. and 7:00 a.m.” For the sake of clarity, hours
worked after 5:00 p.m. as an extension of a shift, normally ending at 5:00 p.m.,
shall not be eligible for shift premium.
-3-
[7] Consequently, I hereby order the employer to pay the grievors premium pay for
all hours worked after 5:00 p.m. in a regularly scheduled shift, with interest, to be
paid as provided in Article 22.18.1. I shall remain seized to deal with any issues
between the parties relating to implementation of this award.
Dated at Toronto, Ontario this 7th day of March, 2018.
“D.J.D. Leighton”
__________________________
D.J.D. Leighton, Arbitrator