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HomeMy WebLinkAbout1984-0710.Rivard.85-08-23..,, .:., .li ::;’ .‘I : (,,.,. IN THE MATTER OF AN ARBITRATION Utider THE CROWN EMPLOYEES COLLECTNE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Amalgamated Transit Union (Denise Rivard) and Crievor The Crown in Right.of Ontario (Toronto Area Transit Operating Authority) Before: For the Grievor: For the Employer: Hear- Employer R. J. Delisle Vice-Chairman H. Simon Member L. R. Turtle Member Mr. L. Richmond Coun5el Messers. Sack, Charney, Coldblatt & Mitchell Bar&ten & Solicitors Mr. 3. Hassell Counsel Mews. Osler, Hoskin & Harcourt Barristers & Solicitors March 18, 1985 and June 19, 1985 DECISION The grievor is a part-time ticket collector who has been working for GO Transit, at Union Station in Toronto, for the past three years. For the past two years, and at the time of the grievance, her regular schedule required 28 hours per week. On Monday, Tuesday and Wednesday she worked four hours per day: 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 6:00 p.m. On Thursday and Friday she worked eight hours per day: 7:00 a.m. to 3:00 p.m. The work force at Union Station consisted of 22 full-time employees, 26 part-time employees, and 18 casuals. On Tuesday, June 19, 1984, the grievor was asked if she'd like to work past her regulat time of 9:00 a.m. to fill in for a sick employee. She agreed and that day worked from 7:00 a.m. to 2:30 p.m. On Wednesday, June 20, 1984, she worked from 6:30 a.m. to 2:30 p.m. to again fill in for a sick employee; this was pursuant to a request of her supervisor made the day before; On Saturday, .June 23, 1984, the grievor worked from 4:00 p.m. to 12:45 a.m. of the following day; a supervisor had asked her earlier in the week if she would like to work.on Saturday. For none of these hours worked, which were outside the hours oft work regularly scheduled, was the grievor paid at an overtime rate and it is of this,that she complains. The grievor notes that sometimes when she works extra hours she receives the overtime rate and sometimes not. -2- The position of management appears to have two bases. The superintendent at Union Station, Kay Strevex, and the griever's immediate supervisor, Brent McKee, made a distinction in their testimony between forced overtime and voluntary overtime. If trains were running late, or passengers needed emergency assistance, or a train needed to be searched, a part-time employee would be compelled to remain on the job. In those instances of forced overtime the overtime rate would be paid. If, on the other hand, a part-time employee was asked if she would like to work overtime and she agreed,then such overtime was viewed as voluntary and the employee would be paid straight-time. If the employee said no to the offer of extra hours,management ,Q' would then move on to another employee. 'This, basis for management's position is reflected in McKee's response to the grievance, dated July 24, 1984 (Exhibit.2): I... The hours you have grieved were not forced upon you." The second basis for management's position is seen in a memorandum of Strevez, dated January 27, 1984 (Exhibit 6) and in the response to the grievance of A.M. Robinson, Director Finance and Administration, dated August 24, 1984 (Exhibit 3). In those documents, and at the hearing, management took the position that a part-time employee was not entitled to an overtime rate for hours worked in excess of those regularly scheduled unless the hours exceeded either 40 hours in a week or more than eight hours in any day. It is common ground that Saturday is the first day of -3- a work week. Management concluded that the grievor had not worked in excess of 40 hours in a week by working the Saturday and so was not entitled to an overtime rate for the eight hours worked that day. They did note, however, that she had worked 8 3/4 hours that day and so was entitled to payment at overtime rates for three quarters of an hour. It is observed that management's position is inherently contradictory. It insists that a part-time employee is not entitled to overtime rates unless it exceeds 40 hours per week or 8 hours per day but admits to a practice of paying the overtime rate when the part-timer is forced. to work overtime though the hours worked are not in excess of the limits defined. A survey of all part-time ticket collectors from January, 1983 to June, 1984 shows that 4,091 extra hours worked were paid at straight-time and 515 l/4 hours worked were paid at overtime rates. In the grievor's own case,during that period 194 extra hours were worked at straight-time and 11 l/2 hours were worked at the overtime rate. The provisions of the Collective Agreement around which argument flowed provide: Article 19 - Shift Schedules 19.1 Shift schedules shall be posted not less than fifteen (15) days in advance and there shall be no change in the schedule unless notice is given to the employee. If the employee concerned is not notified seventy-two (72) hours in advance Of the change in the shift schedule, he shall be paid time and one-half for the first 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 control of the Employer. I ,/. -4- 19.2 Every reasonable effort shall be made to avoid scheduling the commencement of a shift within twelve (12) hours of the completion of the employee's previous scheduled shift. If an employee is scheduled to work before twelve (12) hours have elapsed from his previously scheduled. shift, he shall be paid time and one-half for, those hours that fall within the twelve (12) hour period. It is understood that this provision only applies to those employees who work a full (40 hour) regular work week with normally scheduled shifts and shall not apply to employees normally on split shifts. 19.3 A shift may be rescheduled without Pay premium or penalty if agreed upon between the employee and the Employer. Article 21 - Overtime 21.1 The overtime rate for purposes of this agreement shall be one and one-half times the employee's basic hourly rate of pay. In this article, .overtime" means an authorized period of work calculated to the nearest quarter hour and performed on a scheduled working day in addition to the regularly scheduled working period, or performed on a scheduled day off. Overtime.shall be paid within two (2) months of the pay period within which the overtime was actually worked. Article 22 -'Hours of Work 22.1' The normal hours of work for all regular full-time employees shall consist of 40 hours per week and eight hours per day. The normal hours of work are stated solely for the purpose of calculating overtime, and shall not be construed as a guarantee of any minimum number of hours to be worked. Overtime rates shall be calculated on the employee's base hourly rate excluding all bonus and premiums. Overtime shall be voluntary provided that if the Employer cannot fulfil its overtime requirements through volunteers, it may require employees to work overtime. In making such compulsory overtime assignment, the most junior employee in the classification affected shall be assigned the overtime, unless there are sufficient grounds for excusing such employee. -5- The Collective Agreement (Article 2) covers all employees, full and part-time. Some provisions or clauses in the agreement have express mention of applicability only t0 regular full-time employees; e.g. see Art. 22.1, Art. 19.2, Art. 36.1, 'Art. 38.2, and the preamble to Schedule 8. Where provisions do not apply to.part-timers, the parties to the agreement have chosen to be explicit. It seems fair to assume then that'if regular part-timers are not expressly excluded,the provisions of the agreement are applicable to Part-timers. By this reasoning Article 21 is applicable to part-timers. Article 21 defines overtime in the clearest of language. We were referred to a number of arbitral decisions for the proposition that in the absence of language to the contrary,,one should consider overtime to be hours falling outside the regularly scheduled hours of work. Such jurisprudence is unnecessary to our case since the Article is so clear. Overtime is "work performed on a scheduled working day in addition to the regularly scheduled working period, or performed on a scheduled day off". It is obvious that the extra hours worked by the grievor on June 19, June 20, and June 23, 1984 are overtime within the definition adopted by the parties. By Article 21 those hours deserve to be paid at the overtime rate of one and one-half times the employee's basic hourly rate of pay. There is absolutely nothing in the collective agreement to suggest that her entitlement is limited,to instances when -6- the overtime is forced on her. The employer may have adopted a policy inconsistent with the terms of the agreement but there was nothing before us to suggest that the other party to this agreement has'acquiesced in the same. Management advanced the thought that it would be ironic to permit a part-time employee to qualify for an overtime rate after working only 28 hours in a week while a full-time employee needed to work 40 hours to qualify. There is nothing ironic when one observes the other benefits provided by the agreement to full-timers and denied to par.t-timers. In addition the part-timer has been employed to fulfill a limited number of hours but on a regular basis: the disruption of that regularity qualifies for the overtime rate. Management argues that Article 22 is the main overtime clause and that the "regularly scheduled working period" in Article 21.1 means 40 hours per week and 8 hours per day. To argue in this-way is to stand the provisions On their heads. Article 21.1, headed overtime, is clearly the controlling section applicable to all employees, full and part-time. Article 22 sets out "The normal. hours of work for all regular full-time employees . ..". The article then goeson to set out * it is so stated and how the rates shall be calculated. To justify its position that a distinction can be made between forced overtime and voluntary overtime, * I ‘\ -7- management relies on Article 19. The theory is that Article 19.1 imposes a penalty of overtime rates if an employee is not given sufficient notice of a rescheduling and that Article 19.3 provides that there will be no penalty if the work is scheduled pursuant to an agreement between the employee and the employer. Article 19 has no relevance to the situation before us. Article 19 deals with rescheduling - of shifts and not with the scheduling of.extra bours. When a train is half-an-hour late and the part-time employee is forced to remain at her post, it would be torturing the provisions of the agreement to say that her shift was rescheduled without sufficient notice! Management seeks to rely on the doctrine of estoppel. Management argues that the grievor accepted extra hours in the past at'the straight-time rate and therefore - cannot now complain. By this argument if an employee doesn't grieve at the first opportunity she iS forever estopped. Surely for an estoppel argument to succeed the party relying on the same must demonstrate some detriment that flowed from the reliance. What detriment did management suffer? They apparently gained many extra hours worked at straight-time rather than 'the overtime rate called for by the agreement. Finally the parties to the agreement are the employer and the union and even if we could find, which we don't, that the grievor agreed to be paid straight-time this could not constitute a waiver of the union's rights under the agreement. -8- We therefore allow the grievance and declare that the.grievor is entitled to be paid the difference between straight-time and overtime rates for the extra hours worked on June 19, 20 and 23,.1984. We will remain sieved pending the resolution of the matter. Dated at Kingston this 23rd day of August, J985 &&.,I$ lisle, Vice-Chairman Re; 710184 OPSEU(Denis Rivard) ADDENDUM. I concur with the findings of the board in the instant case but I would would have added the following: “It is clear from past practice that there was. a degree of mutuality and benefit to both parties and existing part time employees in having certain practical arrangements forapplying the contract provisions as they relate to the additional work’carried out by part time.employees. However the evidence showed these arrangements or procedures were neither consistant nor formalised,between the parties. The parties to a collective agreement are free at any time to agree on procedural arrangements within the contract that are acceptable to hoth parties and are in the interests of existing employees provided they are regulhrized,recorded and signed off.” [--g&L-- c L.R.Turtle. Aug.6.1985,