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HomeMy WebLinkAbout2016-0048.Henwood et al.20-08-13 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# 2016-0048; 2016-0050; 2016-0052; 2016-0222; 2016-0533; 2016-0559 UNION# 2016-0368-0026; 2016-0368-0028; 2016-0368-0030; 2016-0368-0049; 2016-0368-0070; 2016-0368-0071 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Henwood et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Elsa Ascencio Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Debra Kyle (Counsel) Alana Bujeya (Student-at-Law) Treasury Board Secretariat Legal Services Branch HEARING August 5, 2020 (by Videoconference) -2- DECISION [1] This decision deals with individual grievances filed by six Correctional Officers (“CO”) at the Central East Correctional Centre (“CECC”) in Lindsay, Ontario, Judy Henwood, Shaun Furtado, Malcom Thomas, Krista Colley, Barbara Trioli and Cindy Hard. The grievances in essence allege that the employer violated the collective agreement by failing to pay them overtime by balancing their hours of work in 2015. [2] The union claims that the grievors are entitled to be compensated at overtime rates for excess hours they had worked in 2015 on an annual balancing of hours in accordance with Schedule A- Averaging of Hours, Appendix COR 1 which is part of the Corrections Collective Agreement (Hereinafter “Schedule A”). [3] Employer counsel advanced a motion for dismissal of the grievances on the basis that Schedule A does not apply to the grievors, who occupy positions classified as CO2. Employer Submissions [4] Counsel referred to the Correctional Salary Schedule Salary Rates for the Correctional bargaining unit. It sets out the various classifications in the correctional bargaining unit and the applicable wage rates for each. Also set out is the “Hours of Work Schedule” that applies to each classification. Counsel pointed out that the grievors’ classification of CO2 is set out as in Schedule 4.7. [5] Counsel contrasted this with a number of classifications set out in the Unified Salary Schedule Administrative Classification Group set out as in the Hours of Work Schedule A. Counsel submitted that the Collective Agreement clearly sets out the Hours of work schedule that applies to each classification. For COs it is schedule 4.7. -3- [6] Counsel then referred to article COR2 Hours of Work which sets out the normal hours of work for employees in the various schedules. Article COR 2.2 provides: 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. [7] Article COR 2.4 to 2.6 reads: COR2.4 SCHEDULE A Averaging of Hours of Work - see Appendix COR1 (Schedule A - Averaging of Hours of Work) attached. COR2.5 Where the Employer adjusts the number of hours per week on a schedule, the employee’s weekly salary based on their basic hourly rate shall be adjusted accordingly. The adjustment will be discussed with the Union prior to such adjustment being made. COR2.6 Where the Employer intends to transfer employees or an employee from one schedule to another schedule, the Employer will discuss the transfer with the Union prior to such transfer. When the transfer occurs, the employee’s weekly salary based on their basic hourly rate shall be adjusted accordingly. [8] Employer counsel submitted that for the union to succeed, it must show that Schedule A applies to the grievors. The collective agreement, however, is clear that the grievors are Schedule 4.7 employees. Therefore Schedule A has no application to them. [9] Counsel acknowledged that the grievors work under a Compressed Work Week Agreement. Therefore, they do not always work 8 hours a day and 40 hours a week. Based on operational needs some days they may work hours in excess of those hours. Also their schedules may be changed as needed. However, at the end of each pay period their hours are balanced. If a CO had worked in excess of the normal hours specified in article COR 2.2, he/she is compensated for the excess hours with time off in lieu, or if that is not possible is paid at straight time. If a CO had performed less than the normal hours of -4- work in the pay period, he/she is assigned extra hours of work, also at straight time. Counsel referred to the language of Schedule A and pointed out that in contrast to Schedule 4.7, it contemplates an accumulation of hours of work over a one year period and an averaging of hours done on an annual basis. That cannot apply to the grievors because as Schedule 4.7 employees, their hours are averaged every pay period and compensated regularly. Union Submissions [10] Union counsel conceded that the grievors are employed in a Schedule 4.7 classification and not in a Schedule A classification, However, she urged the Board not to dismiss the grievances, and submitted that there are two grounds on which the Board can reasonably conclude that Schedule A was intended to apply to the grievors. [11] First, she pointed out that there is not a single classification in the corrections salary schedule designated as Schedule A. The vast majority of the classifications, including CO2, are in schedule 4.7, and the rest are in schedules 4, 6 or 3.7. Yet Schedule A remains part of the corrections collective agreement as Appendix COR 1. Counsel argued that if the parties intended that Schedule A has no application to any corrections classifications it would have been “bargained out” of the corrections collective agreement. On this basis, it was submitted that it would be reasonable for the Board to find that Schedule A was intended to have application to the CO2 classification. [12] I understood union counsel’s second ground to be one based on a principle requiring that a collective agreement should be interpreted reasonably. Counsel relied on Brown & Beatty. Canadian Labour Arbitration, 5th Edition, at 4;2100 where the authors discuss the principles arbitrators apply in discovering the intention of the parties, and concludes with the statement, “In any event, when faced with a choice between two linguistically permissible interpretations, arbitrators have been guided by the purpose of the particular provision, the reasonableness of each possible interpretation, administrative feasibility, and -5- whether one of the possible interpretations would give rise to anomalies”. (underlining added). [13] Union counsel referred to charts setting out hours worked by each of the grievors and submitted that based on their hours worked in the year 2015, they were owed hours at the end of the year, which should have been paid at overtime rates. Council argued that these charts show that there are “gaps” when employer policy on overtime for the grievors is put into practice. She argued that applying Schedule A is a reasonable way to address the “gaps” in the policy. [14] In reply, employer counsel disputed union counsel’s interpretation of the grievors’ hours charts. She submitted that in any event, overtime pay for COs, who are schedule 4.7 employees, is not based on a balancing of annual hours. There is no ambiguity in the collective agreement in that regard. The CO overtime rules are in article COR8 of the collective agreement which does not entitle schedule 4.7 employees to build up excess hours over a year. They are paid overtime based on hours worked in each pay period. If the employer fails to comply with article COR8, employees may legitimately grieve. They are, however, not entitled to grieve on the basis of an annual balancing of hours, which the parties have negotiated for classifications in Schedule A. Decision [15] I have carefully considered the relevant provisions of the collective agreement and the submissions of the respective counsel. I find that the employer’s motion must be upheld. Union counsel conceded that the employer’s motion has merit to the extent that the grievors hold positions that are in Schedule 4.7, and not Schedule A. Nevertheless, she urged the Board to apply. Schedule A to the grievors on two grounds. I find no basis to do that under either ground. [16] Entitlement to overtime pay, for the grievors, or for that matter for any bargaining unit employee, is not based on employer policy. It is based on -6- collective agreement terms negotiated by the parties. It is not appropriate to apply Schedule A to CO2s simply because Schedule A remains part of the corrections collective agreement. That would require the Board to ignore the very clear and unambiguous provisions the parties have negotiated to the effect. (1) that CO2s are in schedule 4.7, and (2) that overtime for CO2s at CECC is governed by article COR8, as modified by the CWWA. The Board in effect would then be amending the collective agreement by moving the CO2s from Schedule 4.7 to Schedule A. The Board has no authority to do so. [17] Also, there are many classifications in the Corrections Salary Schedule designated as 4.7 positions. If the union’s reasoning is accepted for CO2 positions, it potentially opens up the same argument for each of the classifications in corrections designated as schedule 4.7. Counsel did not explain why the CO2s alone have a claim for overtime pay under Schedule A. The position of the union would create an anomaly and lead to an absurdity and confusion. [18] I find that the union’s second ground for the application of Schedule A to CO2s also has no merit. Brown and Beatty list many factors arbitrators consider in attempting to ascertain the intention of the parties in drafting collective agreement language. They state that those factors are to be used “when faced with a choice between two linguistically permissible interpretations”. Neither party claimed that the relevant provisions of the collective agreement are ambiguous. There are no “two linguistically permissible interpretations”, which justify the application of “reasonableness” as a relevant consideration. I have already concluded that to accept the union’s position the Board would in effect have to amend the collective agreement. In the circumstances, even if I accept that there is some “unreasonableness” resulting from not allowing the grievors to earn overtime pay on the basis of an annual balancing of hours, that does not authorize the Board to refuse to apply the clear and unambiguous provisions of the collective agreement. I refer to the following observation by the Board in Re AMAPCEO and MGS, 2011-0995 (Dissanayake) at para. 7: -7- It follows from the foregoing that there is a presumption that the parties intend what they have expressed. Where there is no ambiguity in what the parties have expressed, effect must be given to that notwithstanding any unfairness of inefficiencies that may result. [19] Moreover, the grievances claim a monetary benefit. It is well established that in those circumstances the union has the onus to establish that the employer has agreed in clear and unequivocal language to provide the monetary benefit sought. (Re Vitorino et al, 2009-1293 (Abramsky) para.11). The union has not met this onus. [20] For the foregoing reasons the employer’s motion is upheld. The grievances are hereby dismissed. Dated at Toronto, Ontario this 13th day of August, 2020. “Nimal Dissanayake” ______________________ Nimal Dissanayake, Arbitrator