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HomeMy WebLinkAbout1975-0003.Policy.77-01-073/x CROWN &4i’LOYEES 416/964 6426 Suite 405, GRIEVANCE SETTLEMENT 77 Bloor Street Vest GOARD TOi7ONT0, Cntizrio. MS.5 IM2 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Policy Grievance (Stand-by & Hours of Work) (Grievor) And Ontario Housing Corporation (Employer) D. M. Beatty - Chairman Mary Gibb - Member Dan Anderson - Member For the Grievor Mr. G. 0. McPhee - Canadian Union of Public Employees For the Employer Hearing Mr. A. P. Tarasuk - Central Ontario Industrial Relations Institute Suite 405, 77 Bloor Street W., Toronto, November 15th, 1976 -2- 8y the grievance~which has been placed before this Board, we must determine the rather narrow issue of what compensation should be paid to employees who are required to serve on a stand-by basis on their regular days off and on the statutory holidays that are described in Article 20 of the Collective Agreement. That is to say, the issue before this Board is not to determine whether such persons may be required to serve on a stand-by basis during such periods, or whether the concept of stand-by duty conflicts with and undermines the purpose of a scheduled day off and a statutory holiday. Rather the issue before us as put by the union, is simply to settle the amount of compensation that should be paid to persons who are obliged to serve in that capacity on those days. For its part, the employer directed our attention to Articles 17 and 18 of the Collective Agreement as expressly providing the answer to that question. Those sections of the Agreement stipulate: ARTICLE 17 - CALL-OUT AND REPORTING ALLOWANCE 17.01 Each employee coming &thin the bargaining unit who has completed his regular day’s work (but not including on-site Building Custodians who have completed their reguZar shift and on-site time) and is ea22ed out and reports for overtime or who is ca22ed out and reports for work on other than his regular work day shall be paid as a m-inirmun the equivalent of three 13) hours at time and one ha2f whether such employee works or not, for each time such employee is called out and reports for overtime work or work as the case may be. 17.02 Each on-site BuiZding Custodian coming within the bargaining unit who has comp2eted his regular shift and on-site time and is called out and reports for overtime work or who is cal2ed out and reports for work on other than his regular work day shall be paid as a minimLrm the equivalent of three (3) hours at time and one half whether s;tch emp2oyee works or not for’each time such employee is called out and reports for overtime work or work as the case may be, provided, ~-5 -3- ARTICLE.17':'CALL-OUT'AND'RBPORTIRG'ALLOWANCE 17.02 however, such employee shall not be entitled to more than one call out and report aZZowance unless such second caZ1 out occurs more than aJa hours after the time of the first call out. ARTICLE 18 - STAIVD-BY ALLOWANCE 18.01 Where an employee is required to stand-by and be available for recall to work for a period of time that is not a regu2ar working period, the employee shall be paid a premium of 2Oc per hour for that period. Stand-by time must be approved in advance by the appropriate Supervisor. The provisions of this clause wi21 not apply to Building Custodians during periods of time for which they are in receipt of on-site premitrm, nor will it apply to Security Tenants. Reading those two provisions together it was the employer's position that all employees who were required to serve on a stand-by basis on their regular days off and on a statutory holiday should be compensated at the rate of twenty cents per hour for such service, and in addiction should receive three hours pay at the rate of time and one half for each call out to which they were obliged to respond during the period they were on such stand-by duty. By way of contrast, and in support of the grievance, the union argued that the stand-by allowance described in Article 18.01 only applies to the periods of time immediately following the conclusion of an employee's regular shift and does not apply to an employee's regular day off nor to days on which a statutory holiday fell due. In those latter instances, it was the ..* ~. :i -4- union's position that Article 16, providi,ng for premium overtime rates of time and one half would be applicable. Moreover, it was the union's position that in discussions preceeding and following the filing of their grievance, the employer had conceded the union's interpretation of Article 18.01 and has, except for the issue of the retroactivity of the compensation due and owing to the employees, settled this grievance with the union on that basis. With regard to the latter contention we do not believe, on the evidence before us, that it can reasonably be said that the employer had settled this grievance and conceded the union's interpretation of Article 18.01. Rather in our view, on the evidence presented, it would appear that while the employer did agree to cease its practice of assigning employees on a stand-by basis on their regular days off and on statutory holidays as of January 31, 1976, at no time did it concede that Article 18.01 was inapplicable to either an employee's days off or to statutory holidays. To the contrary, on Mr. F. Harrison's evidence, and from documents filed with this Board, it is apparent that throughout the period this matter was under discussion, the employer consistently claimed that, for the period from June 23, 1975 when this agreement became effective, until January 31, 1976 when it ceased its practice, employees who served on a stand-by basis on their regular days off and on statutory holidays, would only be entitled to be paid at the rate of twenty cents for each hour so served and in addition at the rate of time and one half for at least three hours for each occasion that the employees were called out to perform work during that period. .? c. -5- Indeed, Mr. Roach in his evidence, conceded that as late as December 1975 when he was meeting with Mr. Rose, the latter had confirmed that the employer's interpretation of Article 18 was as it his described above. As well, in agreeing to the contents of an internal memorandum of the Corporation describing a meeting which occurred in February 1976, Mr. Roach can be taken as confirming the employer's contention that it had, throughout the period in question, maintained its interpretation of Article 18. In the result, and so characterized, we do not believe that in agreeing to eliminate its practice of assigning employees to stand-by duty on their regular days off and on statutory holidays as of January 31, 1976, that the employer can be taken to have abandoned the merits or propriety of its interpretation of Article 18.01. Nor do we believe~that by agreeing with the union in January 1976 to meet and discuss "possible retroactive compensation" with respect to its past interpretation and application of Article 18.01 that the employer was in any way conceding or deferring to the union's interpretation of Article 18.01. Rather as both Mr. Harrison's testimony and the documents filed attest, the issue of retroactivity so far as the employer was concerned, raised the question of whether the employees who had served on a stand-by basis in the past had actually been paid in accordance with the Corporation's interpretation of Articles 17 and 18. In short then, on the evidence before this Board, we are simply unable to draw the conclusion that the employer conceded, or reasonably could be perceived as having conceded the 4 5 -6- union's interpretation of Article 18.01 as it related to.employees who had served on a stand-by basis since June 23, 1975 on their regular days off and on the statutory holidays that are described in the agreement. As well, and with regard to the proper interpretation to be placed on Article 18.01, we would agree with the employer that reasonably construed, Article 18.01 cannot be limited to those periods of time which follow an employee's regular shift. To the contrary, Article 18.01 is absolute on its face and admits of no such qualification. Thus, to accede to the union's interpretation would require this Board to add words to Article 18.01 which the parties themselves have failed to do. Very simply and had the parties intended that the stand-by premium was only to apply to hours immediately following an employee's regular working hours, they could have so drafted Article 18.01. Indeed in Articles 15.02 and 17.01 providing for the payment of an "on-site" premium and a reporting allowance respectively, the parties have shown they are able, where they so intended, to expressly refer specifically and distinctly to an employee's scheduled off-duty days and to the period of time which follows an employee's regular shift. Thus, for example, in Article 15.02, the parties have expressly excluded an employee's scheduled days off from the provisions of the on-site premium. ,By way of contrast however, in Article 18.01 the parties have anticipated that an employee may be required to stand-by "for a period of time that is not a regular working period". Drawn in such general, unequivocal and -7- sweeping terms, such a period would, in our view, embrace both that period of time which follows an employee's regular work day, and, as well, those days which do.not form part of his regular working schedule. Very simply then, and in the absence of any indication that the parties intended the phrase, "not a regular working period", only to refer to the period of time following an employee's regular hours, we would hold that Article 18.01 does apply both to that period and.as, well to an employee's off-duty days and to the statutory holidays that are delineated in Article 20. Such an interpretation only confirms to what we perceive to be the plain language of Article 18.01 but, as well, it gives effectto a distinction that has ~been, and is generally drawn between stand-by duty and work actually performed outside of an employee's regular tour of duty. That distinction, which may be seen for example in s.13(2), of the Regulations, promulgated under s.65 of the Employment Standards Act S.O. 1974 C112, and which we believe is reflected in Articles 15.02 and 18.01 of the Agreement before us, recognizes that stand-by service cannot be strictly equated with the performance of work, but rather refers only to the period an employee is waiting or holding himself available and ready~for work. So defined, the premium payable for such services is independent of any wage paid for work performed and is intended to compensate the employee for his holding himself available for duty and for the concomitant restriction on his ability to dispose of and utilize what would otherwise be -8- his free time as he pleases. Accordingly and while we would express no opinion on the appropriateness of the rate that was negotiated for such stand-by service, one would expect, given the purpose of the allowance, for that rate to be something less than that paid for work actually performed outside of an employee's normal hours of work. Thus, and as reflected in Article 15.02, an on-site building custodian who is required to keep himself available from the completion of his regular shift until 1:00 a.m. is paid a similar premium of twenty-four cents "as remuneration for availability". Given that the purpose implicit in a stand-by allowance, which would apply to all employees of the Corporation, including on-site building custodians, would be similar if not identical to that underlying the on-site premium, it would require very clear language for this Board to conclude that the method and amount of compensation for each of them would differ as dramatically as the union suggests. Very simply and in the absence of any language suggesting such a result, it does not strike this Board as being logical or reasonable to assume for example, that an on-site building custodian should be paid a premium of twenty-four cents an hour for holding himself available from the conclusion of his shift on a Friday until 1:00 a.m. on a Saturday, but should receive time and one half of his regular rate if he should be required to again hold himself available on the next day, if that day were, for him, a scheduled day off. To the.contrary, given the similarity in purpose and function of these two premiums, one i’- * _ rr -9- would expect as the language~of Articles 15.02 and 18.01 reveals, a close proximity in the remuneration paid under each of them. In the result, it follows both from its clear language and its implicit purpose, that Article 18.01 in referring to periods of time which are not "regular working periods" would apply to both scheduled days off and to statutory holidays. Accordingly and during those periods when an employee is required to serve on a stand-by basis he is entitled to be paid at the rate of twenty cents an hour for each hour served and this, regardless of whether any work is performed. Moreover, during such a period and in contrast to certain other premium rates such as, for example, the premium paid for work performed by lead hands (Article 14.02) or for work performed on a Sunday (Article 16.03), the stand-by premium would be the sole remuneration to which the employee would be entitled if he were not called upon to perform any work during that period. However, by virtue of Article 17.01 of the Agreement, and in addition to that twenty cent premium, such employees would also be entitled to the reporting allowance when, during a stand-by period, they were required to respond to a call out. In short, and in the latter circumstance, the'employee would be entitled to both the twenty cent stand-by premium and, at a minimum, to the three hour guarantee at time and one half that is paid for each call out. In the result, the union's claim that employees who, during the period from June 23, 1975 until January 31, 1976, had been required to serve on a stand-by basis on their days off or on a statutory holiday, be paid at the rate of time and one half for the hours served m&t, for the reasons given, be denied. Dated at Toronto this 7th day of January, 1977 D. M. Beatty Chairman I COnCur Mary Gibb Member r concur Dan Anderson Member