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HomeMy WebLinkAbout1983-0338.Birse.84-01-19mm GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROW3 EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Eric Birse) Griever - And - The Crown in Right of Ontario (Ministry of Correctional SerViCeS) Employer Before: J.W. SamUels F.D. Collom J. Morrow Vice Chairman Member Member For the Griever: S.T. Goudge, Q.C. Gowling & Henderson For the Employer: J.F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearing: December.1, 1983 -2- The issue in this case is whether or not the Ministry can order a correc- tional officer, who is scheduled to work on a statutory holiday, to take the day off and thus receive only eight hours' pay at straight time, rather than the triple time pay he would have received had he worked as scheduled -and to order this change in work schedule on 24 or 48-hours' notice. The grievor is a CO2 at the Guelph Correctional Centre. Like all the officers, in late 1982, he received a computer-prepared work schedule for all of 1983. On this schedule he was shown as working the "A" shift (from 6 AM to 2 PM) on April 1, 2, 3 and 4. April 1 was Good Friday, and April 4 was Easter Monday. The grievor was off sick for several weeks in March, but on March 31 he received his doctor's permission to return to work. At 5 PM on that day, he Let his supervisor, Mr. 3. Braun, know that he would be on duty on April 1, 2, 3 and 4 as scheduled. It is the policy at this centre that staff returning from sick leave must notify the institution of the intent to return to work at least four hours prior to the commencement of the shift. Thus, the grievor was well within the established policy. Mr. Braun relayed to the grievor the message he had received from his superiors that the grievor should simply take April 1 off as a statutory holiday. Apparently, his services weren't needed on April 1. The grievor then worked on April 2 and 3, but sometime during these two days he was told to take off April 4 as a statutory holiday. Again, his services weren't needed. It appears that a number ofofficers scheduled to work on these two days were told not to work, but all the others received several weeks' notice of this change in their scheduled workload. It is not disputed that management has the right to determine work complement and assignment. Section 18(l) of the Crown Employees Collective Bargaining Act provides: -3- Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) . . . . . . complement, organization, assignment . . . . . . and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. Indeed, the Act makes it clear that these matters are not even negotiable and therefore the collective agreement cannot impose limitations on these management rights. However, the collective agreement may provide for the financial conse- quences of certain work assignments, eg. overtime. The Union argues that the griever's scheduled workload was changed without justification, and that as a result the grievor lost the premium pay he would have received for working on the statutory holidays, and was unable to enjoy the weekend because of the short notice given to him of the changes. The grievor should be entitled to a premium as if he had worked on April 1 and April 4. The Ministry’s position is that the collective agreement provides for premium pay under Article 19.1 and 19.2 only if the employee actually works on the statutory holiday. The provisions read: 19.1 Where an employee works ona holiday included under Article 47 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7-X), eight (a), or the number of regularly scheduled hours, as applicable. 19.2 In addition to the payment provided by section 19.1, an employee shall receive either seven and one-quarter (7-S) or eight (8) hours pay as applicable at his basic -4- hourly rate or compensating leave of seven and one- quarter (7-s) or eight (8) hours as applicable, provided the employee opts for compensating leave prior to the holiday. Furthermore, management has the right to order the grievor not to work on the holiday, though scheduled to work, and to pay the grievor only eight hours at straight time for the holiday. Articles 19.1 and 19.2 have been considered on a number of occasions by this Board. In Cooper, 145177, the grievor reported for work on a statutory - holiday, but had to return home after 2 3/4 hours because of illness. It was held that the grievor was not entitled to the premium pay for those hours he did not work. The Board followed the reasoning in Re Kysor Industrial of Canada Ltd. and United Automobile Workers, Local 347 (1976), 11 L.A.C. (2d) 284 (Brandt), that Article 19.1 "must be understood to be subject to the employee's continuing availa- bility for work" (at page 7 in Cooper). The critical problem for the grievor was not that he did not work, but that he was unavailable for work. For the same reason, the grievor failed in Martin, 434181. In McCormick, 386/81, a case similar to our own, the grievor received a weeks' notice that he would not work as scheduled on a statutory holiday. The Board denied his claim for premium pay. In that award, the Board referred to the notice "required by Article 10.1". This Article provides: Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule after it has been posted unless notice is given to the employee one hundred and twenty (120) hours in advance of the starting time of the shift as originally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he shall be paid time and one-half (l-5) for the first eight (8) hours worked on the changed shift provided that no premium shall be paid where the change of schedule is caused by events beyond the ministry's control. -5- At our hearing, both parties agreed that Article 10.1 was not applicable bet use the griever's shift schedule was not changed. He was not asked to work a dii'ferent shift from what was originally scheduled. It is simply a case of being ordered not to work a scheduled shift. With the greatest respect to the Board which decided the McCormick case, we are of the view that the parties before us are correct - this is not a change in shift schedules, there is no "changed shift" as provided for in Article 10.1. In Ferguson, 78/82, again the grievors were scheduled to work on a statutory holiday, but were ordered to take the day off. They were given two weeks' notice and the Board refers to this as "adequate notice....as required by Article 10.1" (at page 5). The grievances were denied. In Bell, 116/78, the Board considered the purpose of Article 19.1. It was said that (on page 5): Premium payments for holiday work are designed to achieve the same purposes - to compensate the employee at a bonus rate for work performed on a holiday to which he is entitled by the collective agreement or by statute and to discourage the employer from demanding such work unless necessary or important. The importance of the entitlement to statutory holidays is well described in Re Sealed Power Corp. of.Canada Ltd. (1971), 22 L.A.C. 371 at 373 (Shime) as follows: Whatever the original social or religious reasons, certain statutory holidays are now a basic part of the Canadian industrial fabric and employees expect to receive the statutory holiday with payment or added compensation to their usual wage rate if they work on that day, while employers anticipate granting the statutory holiday or paying compensation in addition to the usual wage rate if they require their employees to work on those days...... In most cases certain statutory holidays have become so entrenched that an employee will consider the day off with pay as a right rather than a privilege. The holiday is as an opportunity to engage in social or religious activity without loss of income, but it is also viewed as an opportunity for relief from the normal work pattern and its attendant pressures. -6- In the griever's case, he neither worked on the two statutory holidays (and thereby attracted premium pay), nor did he have an "adequate opportunity for relief from the normal work pattern and its attendant pressures" (as it is put in Sealed Power), because of the very short notice he was given that his services would not be required on April 1 and April 4. Nonetheless, and with great reluctance, we have concluded that the grievor is not entitled to anything more than the holiday pay he has already received. Article 19.1 is clear that the premium pay is for hours worked. We find that there is no provision in the collective agreement which prohibit:; management from ordering the grievor to take the day off on a statutory holiday, even though he was scheduled to work. While this Board has referred in the past to Article 10.1 and the 120 hours' notice mentioned there, this appears to be the first case where less than 120 hours' notice has been given and therefore the first time that we must actually determine whether or not it is applicable in a case like this. We have already said that the parties before us agreed Article 10.1 is inapplicable, and we agree with this. There was no change in shift schedules here. In sum, the grievance is denied. But it is necessary to express our feeling that the Ministry has violated the spirit of Article 19.1, though not its letter. The griever's long weekend was ruined by the short notice that his services were not needed on April 1 and April 4. And there appears to be no reason whatsoever for this short notice. The grievor could not plan to do anything on April 1 until March 31, when he was told not to work the next day. And then, management waited until April 2 or 3 to tell the grievor not to work on April 4. Unfortunately, the collective agreement cannot prevent this sort of last minute assignment, nor is it adequate to provide for premium COmpenSatiOn to SOiIEOne in the griever's situation. -7- Done at London, Ontario, this 19th day of January, 1984. Samw?!ice Chairman - ..-.- -.-~~--- ----_ _..~..~._ .~..~.~__G F.D. Collom, Member ____ J. Morrow, Member -8- EXHIBITS 1. Grievance Form, 338/83 2. Idem, 339183 3. Griever's schedule 4. Letter to grievor, March 25, 1983 5. Medical certificate 6. Idem 7. "Notice of Return from Sick Leave", October 7, 1981