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HomeMy WebLinkAbout1978-0188.Martin.80-11-14CROWN EMPLOYEES COLLECTIVE BARGAINING ACT GRIEVANCE SETTLEMENT BOARD BETWEEN: Ann A. Martin - Grievor and The Crown in Right of Ontario Ministry of Community & Social Services - Employer BEFORE: R. Kennedy - Vice-Chairman F. Collict - Member J. Smith - Member APPEARANCES For the Grievor: George Richards - Grievance Co-ordinator Ontario Public Service Employees Union For the Employer: S. White - Counsel, Ministry of Community & Social Services Date of Hearing - October 22nd, 1980 AWARC The grievor at all material times was employed and classified -2- Facility operated by the Employer. Her employment commenced January Sth, 1970, and she was appointed to full-time staff January 18th, 1972.. She has worked a regular 40-hour week from the inception of her employment with an overtime entitlement for work in excess of eight hours per day or 40 hours per week. The first Collective Agreement between the parties was signed January 28th, 1976., and the provisions applicable to the situation which is before us will be set out later in this Award. The grievance was filed September 5th, 1978, in the following language: "I grieve that Management is violating the current Working Conditions Agreement by not paying me for one and one-half (1%) times my basic hourly rate for all hours worked in excess of seven and one-quarter (7%) hours per day. Therefore, I request to be paid according to the Working Conditions Agreement for all hours worked and that Management adhere to said Collective Agrement in the future." The provisions of the Collective Agreement referred to by the parties read as follows: ARTICLE 7 - HOURS OF WORK 7.1 7.2 7.5 SCHEDULE 3 and 3.7 The normal hours of work for employees on .these schedules shall be thirty-six and one-quarter (36%) hours per week and seven and one-quarter (7%) hours per day. 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. Where the Employer adjusts the number of hours per week on a schedule, the employee's weekly salary based on his basic hourly rate shall be adjusted accordingly. The adjustment will be discussed with the Union prior to such adjustment being made. -3 - 7.6 It is understood that other arrangements regarding hours of work and overtime may be entered into between the parties on a local or Ministry level with respect to variable work days or variable work weeks. 7.7 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 his basic hourly rate shall be adjusted accordingly. ARTICLE 13 - OVERTIME 1311 The overtime rate for the purposes of this Agreement shall be one and one-half (1%) times the employee's basic hourly rate. 13.2 In this Article, "overtime" means an authorized period of work calculated to the nearest half hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. 13.3.1 Employees in Schedules 3.7 and 4.7 who perform authorized work in excess of seven and one-quarter (7%) hours or eight (8) hours as applicable, shall be paid at the overtime rate. It is agreed between the parties that the schedules that are re- ferred to in Articles 7 and 13 are not contained in the Collective Agreement, but rather, are the schedules referred to in the Regu- lations issued pursuant to The Public Service Act, R.S.O. 1970, C.386 as Amended which Regulations are set out as Regulation 749 in R.R.O. 1970 and which Regulations contain the various schedules referred to in the Collective Agreement. These schedules set out all of the various classifications within the Public Service and are quite extensive. The classifications of Schedule 3 have normal working hours of seven and one-quarter per day and thirty-six and one-quarter per week, whereas the employees in Schedule 4 work eight -4-, hours per day and forty hours per week. The significance of Schedule 7 is that if a classification is also listed in it, then with respect to overtime the employee is entitled only to premium payment. If the classification is not listed in Schedule 7 then ~the employee is entitled to equivalent lieu time off at a later date. The classification of Operator 1, Telephone Switchboard appears in Schedule 3 and in Schedule 7 in Regulation 749. That Regulation 749 also has numerous predecessor regulations and has been amended subsequently, but it is agreed that at all times since the Schedules were first established back in the 1960s the Operator 1, Telephone Switchboard classification was always in Schedule 3. In order to appreciate the factual background of this grievance it is necessary to consider the history of the Operator 1, Telephone Switchboard classification in the Cedar Springs Facility and how, as at the date of the Collective Agreement the grievor came to be working an eight hour day and a forty hour week. Ontario Regulation 190/62 which was the applicable Regulation in force in the year 1964 stipulated the hours of work to be performed by Civil Servants in accordance with schedules of similar nature to those in Regulation 749. However, Sections 10(a) (3) and (4) of those Regulations pro- vided for certain adjustments and permitted a Deputy Minister with the approval of the Civil Service Commission to designate any posi- tion in his Department set out in these Schedules as one for which the duties required fewer or more hours per week than that prescribed for under the Schedule. In the event that that was done the regular - 5 - salary for the position was either increased or decreased propor- tionately to the variation in the hours of work. This procedure was followed, effective November 23rd, 1964, for the Operator 1, Telephone Switchboard positions at the Cedar Springs Facility. That designation has never been subsequently changed and, pursuant to it, the grievor's employment commenced and continued on the basis of a forty-hour week. The parties were unable to identify with any degree of precision the number of classifications or employees that would be in similar circumstances to the grievor as at the date of the signing of the Collective Agreement, but it was suggested by Counsel for the Employer that, in point of fact, more Operator 1s were presently on a forty-hour work week than a thirty-six and one-quarter hour work week. Those that are on the forty-hour work week do receive proportionately more salary than those on the thirty-six and one-quarter hour week, but on a straight time basis only, and the claim in this grievance is that for the additional three and three-quarter hours the grievor is entitled to time and one-half, rather than straight time. In determining that issue we must, in substance, decide specifically what has been incorporated by reference from the Regulations in the Collective Agreement and it is the Union position that it is the Schedules themselves and nothing more that may be considered to be included in the Collective Agreement. The Union argument, there- fore, is that effective as of the date of the Agreement the grievor by virtue of Article 7.1 is given normal hours of work of thirty-six -6- and one-quarter per week and seven and one-quarter per day and that, therefore, under Article 13.3.1 she becomes entitled to be paid at overtime rates for the additional time worked in her forty-hour week. Any change must be dealt with under the lan- guage of Article 7.7 and it was specifically agreed between the parties that since the signing of the first Collective Agreement between the Employer and the Union no discussion held out to be a discussion pursuant to Article 7.7 had taken place with respect to the grievor's position. It is the position of the Employer that the grievor's position was designated as a forty-hour work week position long prior to the Collective Agreement and in deter- mining what is incorporated by reference into the Agreement it is necessary to include the existing and established practices with respect to the Schedules at the time the,Collective Agreement comes into force. In order to complete the background information before con- sidering the arguments presented by the parties, we consider it also useful to set out the specific provision of Regulation 749 that gives rise to the Schedules in question. It must be remem- bered that the Collective Agreement between the parties was pre- ceded by a long history of establishing the terms and conditions of employment in the Regulations and those Regulations would con- stitute the basis of the existing system which must be taken to have been within the contemplation of the parties at the time they entered into the Collective Agreement. There obviously -7- existed a complex and sophisticated set of regulations into which the Collective Bargaining relationship was formally introduced and clearly, there are some aspects of the pre-existing situation which the parties contemplated would continue. It is to be noted that Section 29(3) of The Public Service Act specifically recog- nizes that on an ongoing basis both Regulations and Collective Agreements will effect employees and the specific provision is made that in the event of conflict between them, the provisions of the Collective Agreement will prevail. Section 22 of Regulation 749 provides in part as follows: "22. (1) The hours of work per week which shall be performed by civil servants of the classifications set out. (a) in Schedule 3, shall be 36% hours: (b) in Schedule 4, shall be 40 hours. (2) Where the duties of a civil servant require, (a) that he work more than the number of hours per week prescribed under subsection 1 or 3 at regular recurring times of the year; or (b) that the number of hours per week be normally irregular, the average weekly number of hours prescribed under sub- section 1 or 3 shall be computed as a weekly average over one year. (3) Notwithstanding subsection 1, a deputy minister may, with the approval of the Commission, (a) designate any position in his ministry in a classification set out in Schedule 3 or 4 as a position whose duties require fewer or more hours of work per week than are prescribed for the classification by subsection 1. (4) The salary of a civil servant in a position designated by his deputy minister under subsection 3 shall be increased or reduced in the same proportion that the hours of work per week designated for the position by the deputy minister bear to the hours of work per week prescribed for the classification of the position by.subsection 1. - 8 - At the Hearing the Employer raised two objections to the arbitrability of the matter at this time. Counsel for the Employer argued that,in substance, since any transfer or desiq- nation with respect to the grievor that is being complained about took place prior to the implementation of the Collective Agreement we have no jurisdiction to go into the matter as, in the absence of specific contractual language, the Agreement cannot be given retroactive effect. It was argued that Article 7.7 clearly deals on a prospective basis with situations where the employer intends to transfer and any transfer in this situation took place in 1964. We do not consider that objection to be well founded in that we consider it to misconstrue the nature of the grievance. The Union entitlement under Article 7.7 is to a discussion and no relief of that nature is specified in the grievance. On its language the grievance clearly alleges a violation by reason of the failure of IManagement to meet a salary obligation and, on its clear language, it is a grievance under Article 13.3.1 with respect to payment of overtime. The relief requested is purely monetary and in no way relates to the breach of Article 7, Article 7 merely being relied upon to establish the grievor's schedule classification. The second objection to arbitrability rested on the aspect of timeliness and Article 27 of the Collective Agreement establishing the grievance procedure. Article 27.2.1 requires that an employee ,who believes he has a complaint or a difference shall first discuss the complaint or difference with his Supervisor within 20 days of -9- first becoming aware of the complaint or difference. It was argued by the Employer that the grievor would be aware of the complaint at the time of execution of the Collective Agreement and that over two years went by before a grievance was lodged. There are prior de- cisions of this Board in support of the proposition that the time limits in Article 27 are-mandatory, but again, we do not find it necessary to consider that aspect of the matter. The grievance before us is one of a continuing nature and, essentially recurs, if the qrievor's position is correct, every time she works in ex- cess of seven and one-quarter hours per day. We , therefore, do not consider that the matter is prevented from proceeding to ar- bitration by reason of the time limits in Article 27. The Union has made it clear that with respect to remedy relief is claimed only subsequent to 20 days prior to the commencement of the grievance proceedings. In determining the intent of the parties as expressed in Article 7 it must be remembered that the provisions of the Collective Agreement and of the Regulations under The Public Service Act, both must be referred to in determining the rights and obligations of the parties. It is clearly acknowledged by the Union that the Article itself is meaningless without reference to the Schedules that form a part of the Regulations. It is further to be noted in Article 7 that the reference in 7.1 and 7.2 is to "normal hours of work" and that the concluding sub-sections of Article 7 clearly envisage circumstances where there will be changes - 10 - in particular situations in those hours of work. For example, in Article 7.5 provision is made that where the Employer adjusts the number of hours per week, the weekly salary is also adjusted. The Section, however, does not deal with the authority of the Employer to adjust the number of hours and accordingly, the Section must envisage that elsewhere that aspect of the matter is dealt with. Based on the information provided to us it would appear clear that the authority of the Employer to adjust the num- ber of hours is to be found in the regulations and that, irre- spective of the Collective Agreement, those Regulations continue to be fully effective except to the extent that they are incon- sistent with the provisions of the Collective Agreement. The specific authority to vary hours is expressed in sub-sections 3 and 4 of Section 22 of Regulation 749 and these provisions appear fully consistent with all of the provisions of Article 7, save only the obligation of prior discussion with the Union. Those sections of Regulation 749 also appear to be identical in sub- stance to the regulations which were in force in 1964 and pursuant to which the position occupied by the grievor was designated as a J 40-hour week. At the time the Collective Agreement came into force there was, therefore, a pre-existing designation under the Regulations validly enacted with respect to this position which de- pends on the Regulations, and not on the Collective Agreement for its authority. Upon signing the Collective Agreement there becomes contractual recognition of the schedules as well as recognition in the Regulations and, further by contract the normal hours of work - 11 - for employees in Schedule 3 are said to be thirty-six and one- quarter which is also fully consistent with the provisions in the Regulations. The Collective Agreement further recognizes the on- going and continuing right to designate positions in a different manner for the purpose of hours of work, but does nothing to modify or limit in any way such pre-existing designations as were 'obviously to the knowledge of the parties in force. The Section only provides that any changes subsequent to the date of the Collective Agreement must be discussed with the Union. Immediately prior to the signing of the Collective Agreement, the grievor's status is that her classification is within Schedule 3 of the Regulations with normal hours of work being thirty-six and one- quarter hours per week, but by designation under those same regu- lations her particular position is designated one of forty hours per week. The effect of signing the Collective Agreement is to give the Schedules and her normal hours of work contractual recog- nition, but it does not alter the pre-existing condition wherein her normal hours of work have been altered by designation under the Regulation and the continuing interrelationship of the Regulations and of the Collective Agreement is clearly recognized. That designation under the Regulations in our view is not in con- flict with any of the Sections of the Collective Agreement to which we have been referred and, therefore, continues to be in effect - 12 - subsequent to the signing of the Collective Agreement. In the result, it is our conclusion that the grievance must be dismi‘ssed. DATED at Toronto this November, 14th day of Bctobey; 1980. I concur I concur "F. Collict" F. Collict "LT. Smith." 'J. Smith