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HomeMy WebLinkAbout1985-0180.Syring et al.87-01-02Between: Before: so cXm24.S SrREET WEST, TORONTO. ONT/WIO. ~60 ,.?9-SUITE 2100 TE‘EPHOMI trs/sos- 0696 180/85, 181/85, 182/85 183185, 18.5185 IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAININ ACT Before THE GRIEVANCE SETTLEMENT BOARD. Ontario Public Service Employee's Union (P. Syring, A. Thachuk, R. Schwindt, W. Herrick and 6. Daoust) - and - The Crown in Right of Ontario (The Ministry of the Environment) P. Knopf, Vice-Chairman F. Taylor, Member P.D. Camp, Member For the Grievor: E. Shilton-Lennon COUllSl?l Cavalluzzo, Hayes and Lennon Barristers and Solicitors For the Employer: .R. Younger Staff Relations Advisor Ministry of the Environment Hearing: October 28. 1986 Grievers Employer . AWARD This cas.e involves five grievors who are classified as environmental technicians in various locations in the Province. They are grieving the fact that they were required to reduce an accumulation of "averaging hours" to zero Their claim is based upon an interpretation of Appendi: Schedule A of the collective agreement, that provides: AVERAGING OF HOURS OF WORK The number of hours of work ,per week prescribed shall be computed as a weekly average over one (1) year, where the duties of a civil servant require: - that he work more than the number'of hours per week prescribed at regularly recurring times of the year, or - that the number of hours per week be normally irregular. Averaging Period: The averaging period for each class and/or position: - will conform to the twelve (12) month calendar period which reflects the work cycle of that class and/or position, and - will be reported to the bargaining agent. Prorating: Periods of employment of less than twelve (12) months in an averaging period (e.g., due to appointment, transfer, separation, etc.) will be prorated. Hours Per Averaging Period: The hours of work required shall correspond to a thirty-six and . x 3, - 2- one-quarter (36-l/4) hour week or a forty (40) hour week averaged/over the twelve (12) month calendar period. Changes to Hours Per Averaging Period: If at any time, a ministi;y requires a different hours base for a class or for a position within a class (e.g. equivalent of forty (40). hours per week instead of thirty-six and one-quarter (36-l/4) hours per week), the ministry must: - alter the affected employees' salaries proportionately, and - notify the Staff Relations Division, Civil Service Commission, and the Union of any such changes. Record of Hours Worked: A record will be maintained for each employee affected~showing a running total of hours worked: - on his regular working days, and - during the averaging period. Excessive Buildup of Bours Worked: When an employee's buildup of hours worked is becoming excessive, he: - may be required to take time off on an hour-for-hour basis, in order to bring his hours accumulation into line with the hours requirement for the averaging period, and - will be given reasonable notice, where circumstances permit, of any such time off. Calculation of Hourly Rate: In all cases, the basic hourly rate of pay for employees on averaging is to be determined by dividing‘ the weekly rate of the class.by thirty-six and one-quarter (36-l/4) or forty (40) as applicable, unless the basic hourly rate of pay already exists. i -3 - Elours Worked Over Annual Requirement: At the end of the averaging period, any excess hours standing to the employee's credit over and above the annual hours requirement will be considered as overtime. Normally, the employee shall be paid for his overtime credits. Such payment shall be based on the basic hourly rata he was receiving on the last day of the averaging period. Compensating time off may be substituted for payment of overtime credits as follows: (a) Where there is insufficient work for an employee to the extent that his presence is not required for a period of time, in which case: - a ministry has the authority to direct that the employee take time off rather than receive pay for the overtime credits, and - such time off must be taken commencing during the first month of the next averaging period. OR (b) in circumstances other than the above and where the employee and his supervisor mutually agree to compensating leave, in which case the time off will commence. - within the first month of the next averaging period, or - at an otherwise mutually satisfactory time. Sours Worked on Other Than Regular Workdays: Any hours worked on a holiday.or a day that is. not a regular working day for the employee will be treated as overtime and b.ased on the rats he was receiving when the over time was worked. I i - 4- As environmental technicians,. the grievors are responsible for the investigation, inspection, data collection and preliminary evaluative and interpretive work that needs to.be. done on matters relating to environmental assessment and polution control in the natural environment. These are professional people who are often called upon on an emergency basis to conduct investigations, attend hearings and interview witnesses. While they are expected to put in a "normal day at~the office", they are.also expected to bc on call and attend at irregular hours as well. Hence,~ they have been assigned to Schedule A, Appendix 3, supra, of the collective agreement since 1975. The hours of work of the grievors in relation to- the "regular" daily requirement as prescribed under the regulations of the Ontario Public Service Act correspond to a seven and one-quarter hour work day or,a thirty-six and one-quarter hour work week. For the purposes of Schedule A of the collective agreement, and utilizing the accepted description set out at page 6.1 of the Ontario Government Manual of Administration, Volume 2, the annual hours of work requirement for the grievors' positions correspond to a sum total of 1,085 regular hours in a twelve-month calendar period (including normal vacation leave entitlement).. The established calendar year for purposes of Scheudle A of the collective agreement and these grievances began on April 1, 1984 and expired on March 31, 1985. The j actual hours that the grievors work are recorded and submitted by the individual employees throughout the calendar year on an appropriate form. Up until approximately December of 1984, it was understood by both parties that the target number of hours per year would be 1,085 hours per employee and employee,s were - . - 5 - encouraged to reduce any accumulation of overtime towards that targe t. But prior to the end of the 1984-85 fiscal yearI the practice had been that although employees were encouraged to reduce their number of accumulated or built up hours , it was left to their professional discretion as to whether this was possible in view of the day-to-day requirements of their work load. If, at the end of the fiscal year, the hours standing to the employee’s credit did not exceed thirty-six and one-quarter hours, this was not regarded as “excessive” and the Employer dealt with those hours in accordance with the subsequent provisions of Schedule A. For example, the number .of hours up to and including thirty-six and one-quarter were paid out at time and one half or taken off under the formula prescribed in the schedule. Employees did not expect that any hours accumulated beyond thirty-six and one-quarter hours would be so paid out. However, at the end of 1984, the Employer decided to change the practice and adopt a new policy designed at targeting a zero accumulationof built up hours. The .“xero accumulation” became manadatory and a series of memos were sent to the individual grievors advising them of the requirement to reduce the number of built up hours to zero (Exhibits 5 to 10). Through these memos, the grievors were ~advised that they must reduce the accumulation to zero by March 31, 1985. Some of the employees were able to do this. Some were not. All the grievors reduced their accumulated hours to some extent, ,but this was done under protest. The remedy that the grievors request is that the number of hours that they were forced to remain off work be reinstated and that they be compensated at an applicable rate in lieu of taking the time off. The argument of the Union is that Schedule A applies to employees who work an irregular number of hours per week. -6- It was submitted that Schedule A covers a broad range of employees who are both seasonal and professional. Thus, the words should be given a "flexible interpretation" having regard to the nature of the work done by these particular grievors. Ms:Lennon argued that the employees enjoy rights under the schedule which are triggered when the number of hours of'work billed up becomes excessive. However, the practice of, the parties was not to consider a build up to be excessive until it reached thirty-six and one-quarter hours. Thus, it was argued that the Employer could not treat anything as excessive until it reached that level. Further, it was argued that even if the Employer is empowered under the Schedule to require the employee to take time off on a four-hour basis, the word "may "fin the Schedule requires that the Employer exercise that~~discretion reasonably, having regard to reasonable expectations of the parties. .Given the practice of not considering the build up to be excessive until thirty-six and one-quarfer~hours, where accumulated, it was argued that the Cmployer's actions in this context were unreasonable. Finally, and in the alternative, it was argued that the clause requires employees to be given reasonable notice of any change to be implemented in, the practice. It was argued that the.notice given under these circumstances was not reasonab1.e having regard to the past practice and the employee's reasonable reliance upon that practice. In conclusion, counsel for the Union argued that a type of estoppel was created by the practice which establishes,the meaning of the word excessive to the parties and which dictates how the discretion ought to be applied. In response, the Employer argues that it is essential that the collective agreement be read to preserve to management the.right to control its own expenditures and to prevent excessive build up of overtime liability at the end of the fiscal year. It was submitted that nothing in Schedule A of Appendix 3 takes away that management right. It :,,... ,.,,.; ,. :.: - 7 - was argued that what occurred here was simply management's decision to cut down on the accumulation of overtime payment and that timely notice was given to the employees of this decision. It was argued that if the Union's position were to be accepted it would create a guarantee of additional hours to employees which is not the intent of the Schedule. The Board was referred to two cases: OPSEU (Whitehead) and y of Natural Resources, Board File 198-82 (Roberts) Ministr August 9, 1982, and OPSEU (Flett) and Ministry of Revenue, Board File 53-77 (Swinton) January 19, 1979. The Decision We start by agreeing with the EmFlOyer’S submission that management has and must retain the power to affect controls upon its liabilities and expenditures. However, this power is subject to the provisions in the collective agreement.. Schedule A of Appendix 3 forms part of the collective agreement and deals with employees who work irregular hours to ensure their fair compensation. In the case of environmental technicians who are often called upon to work in excess of a normal thirty-six and one-quarter hour week, they find themselves in situations where they may accumulate a large number of extra hours. If these were allowed to accumulate without any limit, the Employer could be left with an enormous liability at the'end of the fiscal year. It seems that up until the end of the 1984-85 fiscal year, a mutually satisfactory practice had.developed. By this practice, employees knew that the Employer would consider reasonable an accumulation of overtime hours up to thirty-six and one-quarter hours or one regular work week. Any hours above this were expected to be taken off, in accordance with professional responsibility, on an hour for lud ing those~ hour basis. However, the hours up to and inc , - -8- thirty-six and one-quarter were paid out in accordance with Schedule A. No doubt employees proceeded throughout that fiscal year on the understanding and expectation. that this practice would continue. However , in December of 1984, employees were given notice that the practice with regard to the determination of what amounted to “excessive build up” was coming to an end. Employees were advised to reduce the number of built up hours to zero by the end of the following March. While we must conclude that the Employer had the right under the collective agreemcn t to curtail the amount of built up hours, owe cannot conclude that reasonable notice was given in these circumstances. Employees proceeded almost to the end of the fiscal year on the understanding and the expectation that they would be able to accumulate up to thirty-six and one-quarter hours of over time. It can only be assumed that they would have planned their budgets, their vacations, their work schedules and their personal lives in accordance with those expectations. To then change the rules, in the last quarter of the fiscal year without more notice than was given, cannot be considered “reasonable notice” within the meaning of Schedule A. For the Employer’s notice to have been considered reasonable, it would only have been fair if it would have applied to the following fiscal year rather than to the fiscal year in which the notice was given. Therefore, we must conclude that the Employer has the right to give the employees notice’ that it will no longer consider an accumulation of thirty-six and one-quarter hours of overtime as acceptable. The Employer has the right to, within reason, designate what would be excessive. In the particular circumstances at hand,. the Employer had the right to advise the employees that there would be a change in the ,, ^ ’ * -9- :: practice from what they had enjoyed~ from 1975 to 1984. Hbwever, on the facts of this case, the amount of notice that was given to the employees was not adequate. Therefore, the grievance must succeed to the extent that the grievors should be restored the number of hours that they were involuntarily made to remain off work and that they be paid the applicable rate in lieu of the time off for that period. However, they are to be considered to be on notice for the 1985-86 fiscal year of the change in the Employer’s accepted practice with regard to the build up of hours. Finally, the parties and their representatives are t0 be.commended for their success in achieving an agreed statement of facts and issues on this case and their ability to present the case in an efficient and expeditious manner. DATED a ,t Toronto, Ontario, this 2nd day of January 1987. P. Knopf, Vice-Chairman