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HomeMy WebLinkAbout1985-1461.Speers et al.87-09-17I SE,f' 25 1987 CROWN EMPLOYEES 1461/85 1462/85 1463/85 IN THE MATTER OF AN ARBITRATION UNDER THE~CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU BEFORE: FOR THE GRIEVOR: FOR THE EMPLOYER: HEARING: June 15, 1987 (S. Speers, W. Gall and M. McAlonen) Grievor - and - The Crown in Right of Ontario (Ministry of Education) Employer R.L. Kennedy Vice-Chairman T.J.. Kearney Member G.J. Milley Member J. Lukasiewicz Counsel Gowling & Henderson Barristers & Solicitors M. Fleishman Counsel Crown Law Office Civil Ministry of Attorney General -2- DECISION The Grievors are all employed as Residence Counsellors at the W. Ross McDonald School in Brantford, Ontario. As part of their duties the Grievors instruct residents of the school who are blind or visually impai.red in orientation and mobility skiils. To do that work the Grievors must possess a certification from the Canadian National Institute for the Blind, and as a condition of maintaining that certification, the Grievors are required to attend annual professional development workshops sponsored by CNIB. The Grievors atten‘;ied such a professional workshop in Hamilton, o,nt,a,rio on November 20, 13.85, and on this arbitration they seek to be paid for the time involved at overtime rates. The Employer's position is that they be paid at regular rates and that the time would attract overtime payment under the terms of the collective agreement only.if, when accumulated with all hours worked during the year, the total.is such as to attract an overtime entitlement. It was the Employer position that attendance at the conference constituted a regular working day, and sufficient notice of the change in shift schedule to attend,the conference was. given within the requirements of the collective agreement. The schools within which the Grievors are employed operate only during the school year from September until June, and as a _~ ..x -3- result, there are a number of provisions in the collective agreement modifying the normal hours of work and shift schedule provisions in relation to the schools. Work scheduling is done ~~ ,'~.~ on the basis that employees will work a full year's complement of hours but in the period from September to June. Also: with respect to the number of hours worked, all those hours worked that would not otherwise attract a particular overtime entitlement are accumulated, and if that accumulation exceeds the annual requirement of hours, overtime will be paid or lieu time will be granted. -With respect to scheduling, the collective agreement contains the following addendum'that applies to the Grievors.. ADDENDUM TO THE WORKING CONDITIONS AND EMPLOYEE BENEFITS COLLECTIVE AGREEMENT The parties hereto have agreed to the terms of this Addendum covering employees in classifications of Residence Counsellor 1, 2 and 3 in the Institutional Care Category and. Nurses Special.Schools in the Scientific and Professional Services Category. This Addendum shall be attached to and form part of the Working Conditions and Employee Benefits Agreement. The terms of the settlement are as follows: (a) The hours of work shall be established by the Ontario Schools for the Deaf and the Blind, and they may vary depending on the situations which exist at the different schools. The normal hours of work per week shall be forty (40) hours plus an additional number of hours of work for the purpose of coverage requirement without penalty, recognizing that twelve (12) hours between shifts and two (2) consecutive days off may not -4- (b) (cl be possible to schedule. Normal scheduling of hours shall be September 1 to June 30. Sleep-in is not work and shall only be compensated as specified herein. Scheduled sleep-in hours shall be credited at the rate of fifty percent (50%) to a maximum of four (4) hours credit for those hours on sleep-in duty per night toward the required annual accumulation. Sleep-in hours prior to or following a period of work shall not form a part of the work shift for any purpose under this Agreement. Authorized overtime work which is required as a result of an emergency situation shall be immediately submitted for payment at time and one-half (l-l/Z) the regular hourly rates. This emergency non-scheduled overtime work shall not be included when totalling.the number of credit hours required for the year as per Schedule A. Payment will normally be expected within thirty (30) days of submission. Hour&Worked on Holidays or Other Than Regular Workdays: (a) All hours worked on a holiday included under Article 48 (Holidays) shall be paid at the rate of two (2) times the basic hourly rate that the employee was receiving when the holiday was worked. (b) All hours worked on a day that is not a regular working day for the employee will be treated as overtime and based on the rate he was receiving when the overtime was worked. ,The Union argument focuses on the last paragraph of the foregoing provisions on the basis that the day in question was not a regular working day for the Grievors. The work schedule for the entire school year is published in late June or early September enabling the Residence Counsellors :,~ to know their basic schedules for that.year. The Counsellors are divided into two shifts with five counsellors on each shift. The ..*. I -5- shifts alternate on weekdays with a typical day starting at 11:30 a.m. The students in the school attend classes during normal school hours, with the Counsellors having responsibilities in relation to~them during meals and during the periods before and after school when the students return to the residence. Various leisure, sports and recreational activities are supervised until students go to bed, and the Counsellors assist students with their homework. The Residence Counsellors sleep in the residence and again on the following morning supervise morning routines and breakfast for the students and then go off duty at around 9:00 a.m. They are then off duty until 11:30 a..m. the following day, during which time the other shift of Residence Counsellors comes on duty. On weekends two Residence Counsellors will be scheduled on a rotating basis to be in on Saturday and. Sunday to supervise students who do not go home for the weekend and three additional Residence Counsellors are scheduled to come in at 5:00 p.m. on Sunday to supervise the remaining students who return to the residence at about that time. The professional workshop in question was held November 20; 1985, and on the. annual work schedule the Grievors were all scheduled to go off duty at 9:00 a.m. on that day and to be off until 11:30 a.m. on November 21st. Instead, they got on a bus and went to Hamilton to attend the workshop returning to Brantford..at about 11:00 p.m. A written memorandum'dated -, -6- September 16, 1985 qras given to all participants in the workshop, including the Grievors, advising that the workshop had been tentatively rescheduled to November 20, 1985, and subsequently, another memorandum went to staff advising of transportation ..~ arrangements, time of departure, meal allowance and other arrangements with respect to the workshop. While that memorandum could not be found for the purposes of the hearing, we are satisfied on the totality of the evidence that all of the Grievors were fully aware, more than five days in advance of, November 20, 1985, of the fact that they would be required to attend the workshop on November 20th. While the schedule is published for the entire year well in advance, it is clear onthe evidence that it is reasonably flexible and that changes'can be introduced either by the Employer or at the request of employees for various reasons. Those changes do not show up by way oft any physical modification of the master schedule, and while sometimes 'the changes are reduced to writing, on other occasions they are strictly verbal. It was agreed by both counsel that so far as both parties were aware, overtime has neither been claimed nor paid in the past by Residence Counsellors wlio.are in attendance at professional workshops on days when they were not scheduled to work on the ; ~~ master schedule. The workshops cannot be included on the master ~; ;e / -7- schedule because their dates have not yet been determined at the time the master schedule is issued to employees. For the Union, it was argued that with respect to hours of work, the collective agreement operates on the basis of three general principles. First, there will be 40 hours per work week. Second, there will be 12 hours off between shifts. Third, there will be two consecutive daysoff in each week. It was argued that that general scheme can be departed from only to the extent that the addendum previously set out in this award constituted a negotiated change in that pattern with respect to these employees. It was argued that the addendum permitted normal hours to exceed 40, there might not be 12 hours between shifts, and the employees might not get two consecutive days off. But those exceptions can be resorted to only for the purpose set out in subparagraph (a) of Coverage Requirements in the school. It was argued that the schedule ~issued by the Employer provides consistently that where an employee works one day continuing on to -9:00 a.m.' on the following day, the employee gets the balance of that day off and does not work again until 11:30 a.m. on the following day. The Grievors had worked Tuesday, November 19th, and therefore, within the language of the last paragraph of the addendum the Wednesday was not a regular working day for the. Grievors and they should, therefore, be paid overtime for having attended the workshop on that day. Re'ference was made to Article 4 -8- 10.1 of the collective agreement dealing with shift schedules and the Employer's right to change the schedule, provided 120 hours' advance notice is given. That section reads as follows: ARTICLE 10 - SHIFT SCHEDULES 10.1 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 orignally scheduled. If the employee.concerned is not notified one hundred and twenty (120) hours in-advance he shall be paid time and one-half (1 l/2) 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. Counsel for the Union argued that no appropriate notice had in his view been given within the requirements of that section, and therefore it was not open to the Employer to argue that the. schedule had been properly changed, making November 20th a regular working day. It was argued that the first memo of September 26, 1985 did not meet the requirements of Section 10.1 because it was only tentative, and it was argued that the second purported memo, if it in fact existed, again did not meet the requirements of the section, as it only set out the.mechanics for taking the trip, not that there was any shift schedule change. It wasargued by counsel fork the Ministry, land we would agree, that the master schedule had been properly changed within . ..'. . . ,. .- -9- I the requirements of Article 10.1 of the collective agreement to make November 20th a regular working day for these Grievors. It is true that the.original notice of September 26, 1985 is tentative, but it is also clear on the evidence of the Grievor Speers that more than a week prior to November 2Oth;the Grievors were fully aware that they would be required to attend the workshop in Hamilton on November 20th. Article 10.1 does not provide any specific form of notice that must be given, nor indeed does it require that such notice~be in writing. The reason for and the spirit of Article 10.1 have clearly been complied with based on thee evidence presented to us. More than five- days prior to November 20th, the Grievors were in no doubt about their schedule for that date. Any change in the master schedule as originally drafted, whether initiated by the Employer or by.an employee, would result in an employee working on what . the Union would define as "not a regular working day". That would virtually prevent any scheduling~.changes without attracting : premium pay and could not. be what the parties reasonably contemplated when drafting the collective agreement. The reality for employees who are in what amounts to a seven-day-a-week operation is that any day can be a regular working day depending on the schedule. To attract premium pay, there must be a particular provision of the collective agreement that grants it, such as the provision for double time for working an Article 48 holiday. If the schedule is properiyy changed within the - 10 - constraints of the collective agreement, the newly scheduled day I becomes a. regular working day. With reference to the Union argument on coverage requirement, the professional development workshop in question is a necessary requirement of the continuing qualification of the -Grievers to do their jobs. Accordingly, to the extent that the Employer has to, within the language of the addendum to the collective agreement, establish ,its scheduling for the purpose of coverage requirement, the scheduling of the workshop would come within that requirement. In any event, adding the day to the schedule for these Grievors would not necessarily cause a breach of any of the three general rules referred to by counsel for the Union. That would'not of itself constitute any constraint on the Employer's scheduling rights. If, however, the ultimate effect of the additional scheduled day of work is that the total accumulated hours at a later date exceed the annual requirement, an overtime entitlement will arise at that time. A further argument was advanced by counsel for the Employer to the effect that if we considered the expression "regular working day" in the addendum to be latently ambiguous, reference could be had to the past practice of the parties as an aid to interpretation. On that basis, in similar circumstances in the past, overtime had been neither claimed nor paid. In' view of the - 11 - fact that we find for the Employer on the main argument, we need not deal with that issue. It is, therefore, our conclusion that this grievance ,be dismissed. DATED at Toronto, Ontario this 17th day September, 1987 7, ROSS' L. KENNEDY VICE-CHAIRMAN -::.- II 1 dissent” T.J. KEARNEY MEMBER ~.~ G.J. MILLEY MEMBER .