GSB#1211/99, 1940/99, 2025/99,
0315/00, 0733/00, 0740/00
UNION#99U057, 00U012, 99U082,
00U051, 00U074, 00U077
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between
Ontario Public Service Employees Union
(Union Grievances)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE GRIEVOR David Wright
Counsel
Ryder Wright Blair & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Len Marvy
Counsel
Legal Services Branch
Management Board Secretariat
HEARING April 11, 2001 and May 15, 2001.
DECISION
There are six Union grievances before me which raise issues concerning the application of Article COR6.1.3 (“6.1.3”). This provision, which provides for the payment of a week-end premium, is contained in the Correctional Bargaining Unit Collective Agreement. The parties made submissions with respect to the interpretation of 6.1.3 in the context of six scenarios. The Employer reserved the right to raise issues relating to the appropriate remedy. I was advised that there are many other unresolved grievances which also concern the proper application of 6.1.3.
Article COR6, which contains a number of provisions dealing with shift premiums, reads as follows:
ARTICLE COR6 – SHIFT PREMIUM
COR6.1.1 Effective March 27, 1999, an employee shall receive a shift premium of one dollar ($1.00) per hour for all hours worked between 5:00 p.m. and midnight. Where more than fifty percent (50%) of the hours worked fall within this period, the one dollar ($1.00) per hour premium shall be paid for all hours worked.
COR6.1.2 Effective March 27, 1999, an employee shall receive a shift premium of one dollar and fifty cents ($1.50) per hour for all hours worked between midnight and 7:00 a.m. Where more than fifty percent (50%) of the hours worked fall within this period, the one dollar and fifty cents ($1.50) per hour premium shall be paid for all hours worked.
COR6.1.3 Effective March 27, 1999, a premium of eight dollars ($8.00) per shift shall be paid for all shifts that commence on or after three o’clock p.m., Friday, and end on or before seven o’clock a.m., Monday.
COR6.2 Notwithstanding Articles COR6.1.1 and COR6.1.2, where an employee’s hours of work normally fall within 7:00 a.m. and 5:00 p.m., the employee shall not be entitled to receive a shift premium for hours worked between 5:00 p.m. and 7:00 a.m.
COR6.3 Shift premiums shall not be considered as part of an employee’s basic hourly rate.
COR6.4 Shift premium shall not be paid to an employee who for mutually agreed upon reasons works a shift for which he or she would otherwise be entitled to a shift premium.
COR6.5 Notwithstanding Article 15 (Central Agreement), the premium provided under Article COR6.1.3 shall be payable in addition to any premium payable under Article COR6.1.1 or COR6.1.2, as the case may be.
Many of the above provisions were contained in Article 11 in prior Central Collective Agreements. Articles 6.1.1 and 6.1.2 provide for a shift premium based on a dollar amount per hour for work performed during certain hours. In essence, 6.1.1 provides for an afternoon shift premium and 6.1.2 provides for a night shift premium. Article 6.1.3 is a new provision and is only contained in the Correctional Bargaining Unit Collective Agreement. It provides for a premium of $8.00 per shift for all shifts that commence on or after 3:00 p.m. on Friday and end on or before 7:00 a.m. Monday. Hereinafter, I will refer to this period of time as the week-end. Article 6.4 provides that a shift premium shall not be paid to an employee who for mutually agreed upon reasons works a shift for which the employee would otherwise be entitled to a shift premium. Article 6.5 indicates that notwithstanding Article 15 of the Central Agreement, which precludes the pyramiding of premium payments, the per hour premiums in 6.1.1 and 6.1.2 shall be payable in addition to the shift premium in 6.1.3.
The following provisions of the Correctional Bargaining Unit Collective Agreement also have some relevance to these grievances:
ARTICLE COR2 – HOURS OF WORK
COR2.1 SCHEDULE 3 and 3.7
The normal hours of work for employees on these schedules shall be thirty-six and one quarter (36¼) hours per week and seven and one-quarter (7¼) hours per day.
COR2.2 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.
COR2.3 SCHEDULE 6
The normal hours of work for employees on this schedule shall be a minimum of thirty-six and one-quarter (36¼) hours per week.
ARTICLE COR4 – SCHEDULED TOUR OF DUTY OR SHIFT
COR4.1 A shift which does not commence and end on the same calendar day shall be considered as falling wholly within the calendar day on which the shift commences.
ARTICLE COR5 – SHIFT SCHEDULES
COR5.1 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 originally scheduled. If the employee concerned is not notified one hundred and twenty (120) hours in advance he or she shall be paid time and one-half (1½) 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.
COR5.2 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 shift provided however, that if an employee is required to work before twelve (12) hours have elapsed he or she shall be paid time and one-half (1½) for those hours that fall within the twelve (12) hour period. It is understood that the term “shift” does not include any period of time in respect of which an employee is entitled to overtime payments or compensating leave in accordance with Article COR8 (Overtime) or Article COR9 (Call Back).
COR5.3 A shift may be changed without any premium or penalty if agreed upon between the employee and the ministry.
COR5.4 It is the intent of the parties that there shall be no split shifts provided however, that in circumstances where split shifts are currently in existence reasonable efforts shall be made to eliminate the split shifts.
COR5.5 The current practice of giving notice of shift schedules in advance under existing agreements where notice is in excess of fifteen (15) days shall be maintained.
ARTICLE COR7 – REST PERIODS
COR7.1 The present practice for rest periods in each shift shall be maintained.
ARTICLE COR8 – OVERTIME
COR8.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1½) times the employee’s basic hourly rate.
COR8.2.1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met.
COR8.2.2 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.
ARTICLE COR9 – CALL BACK
COR9.1 An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours pay at once and one-half (1½) times his or her basic hourly rate.
I was also referred to the following provisions of the Central Agreement:
ARTICLE 15 – NON-PYRAMIDING OF PREMIUM PAYMENTS
15.1 There shall be no duplication or pyramiding of any premium payments or compensating leave provided by the Central Collective Agreement or any Bargaining Unit Collective Agreement as listed in Article 1 (Recognition)
ARTICLE 22 – GRIEVANCE PROCEDURE
22.14.6 The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreements.
ARTICLE 31 – UNCLASSIFIED EMPLOYES OTHER THAN SEASONAL, STUDENT AND GO TEMP EMPLOYEES
31.16.2 The following articles of the Bargaining Unit Collective Agreements shall also apply to unclassified employees other than seasonal, student and GO Temp employees: …COR4, COR6, COR7, COR10, COR11…
As one would expect, correctional institutions operate on a 24 hour, 7 day a week basis. Article COR5 deals with shift schedules and 5.1 provides that shift schedules shall be posted not less than 15 days in advance. The Employer has a practice of scheduling regular shifts which are 8, 10, and 12 hours, and occasionally 4 hours, in duration.
Before turning to the six scenarios, it is useful to briefly set out two of the issues in dispute between the parties. The main issue centres on the meaning of the word “shift” in 6.1.3. The Union takes the position that a “shift” is simply a continuous period of work and submits that the performance of work for whatever duration constitutes a shift. From this analysis it follows, for example, that the employee who performs three hours of overtime work on Saturday would satisfy the definition of “shift” in 6.1.3. The Employer, on the other hand, argues that the word “shift” means a regular shift scheduled by the Employer. Since the Employer takes the view that any hours worked during the week-end outside of its regularly scheduled shifts do not constitute a “shift”, an employee who works three hours on Saturday would not work a “shift” under 6.1.3.
The other issue in dispute concerns the proper application of COR6.4 (“6.4”). The Employer, in effect, argues that when an employee performs work outside of his or her regularly scheduled shifts, the employee does so for reasons which are mutually agreed upon between the Employer and the employee. The performance of overtime or the Employer’s agreement to a voluntarily exchange of shifts between employees are the types of mutually agreed upon decisions which the Employer claims are covered by 6.4 and, therefore, deprive an employee of the week-end premium. The Union takes the view that the parties never intended 6.4 to be applied in such a way.
The parties requested a determination of whether or not employees are entitled to payment of the week-end premium as provided for in 6.1.3 in each of the following scenarios:
Scenario 1 – Overtime
A. Employee X, a classified employee, works her regular scheduled shift from 7 a.m. to 3 p.m. on a Saturday. She is requested to, and does, work past the end of her shift for an additional 4 hours (till 7 p.m.) in order to cover for a fellow employee for that 4 hours. She is paid overtime for each of the 4 hours. Is employee X entitled to be paid the week-end premium for these hours worked?
B. Employee X is offered and accepts an overtime shift from 7 a.m. to 3 p.m. on a Saturday to cover the regularly scheduled shift of a fellow employee. She is paid overtime for each of the 8 hours. Is employee X entitled to be paid the week-end premium for these hours worked?
Scenario 2 – Less Than A Full Shift
A. Employee X is working a regularly scheduled shift from 7 a.m. to 7 p.m. on a Saturday. She becomes ill and cannot complete the shift, leaving after only 6 hours (at 1 p.m.). Employee Y, also a classified employee, is called in to replace her for the balance of the shift and works from 1 p.m. to 7 p.m. Is employee X entitled to be paid the week-end premium for these hours worked? Is employee Y entitled to be paid the week-end premium for these hours worked?
B. Would it make any difference to the answer to the questions in paragraph A if employee X worked less than ½ of the shift and employee Y worked more than ½ of the shift?
C. Would it make any difference to the answer to the question in paragraph A if employee X worked more than ½ of the shift and employee Y worked less than ½ of the shift?
D. Would it make any difference to the answer to the questions in paragraph A above if the reason for employee X not completing the shift were one of the following:
(i) a WSIB compensable injury?
(ii) taking compensating time off (lieu time)?
(iii) taking vacation time?
(iv) taking union presidential leave for union activities?
Scenario 3 – Call Back
A. Employee X works a full regularly scheduled shift from 7 a.m. to 7 p.m. on a Saturday. Her next scheduled shift is on the following Monday commencing at 7 a.m. She is subsequently called back to work on the Sunday and works from 7 a.m. to 10 a.m. She is paid call back pay as per Article COR9.1 for four hours. Is employee X entitled to be paid the week-end premium for these hours worked?
Scenario 4 – Voluntary Exchange of Shifts
A. Employee X is scheduled to work a shift on a Thursday from 7 a.m. to 7 p.m. Employee Y is scheduled to work a shift on the following Saturday from 7 a.m. to 7 p.m. Employees X and Y agree to exchange shifts and the exchange is approved. Employee Y works on the Thursday and is not paid week-end premium. Is employee X entitled to be paid week-end premium for the hours worked on Saturday?
B. Employee X is scheduled to work a shift on a Saturday from 7 a.m. to 7 p.m. Employee Y is scheduled to work a shift on the following day, Sunday, from 7 a.m. to 7 p.m. Employees X and Y agree to exchange shifts and the exchange is approved. Employee Y works on the Saturday and employee X works on the Sunday. Is employee X entitled to be paid week-end premium for these hours worked? Is employee Y entitled to be paid week-end premium for these hours worked?
Scenario 5 – Start and Finish Times
A. There is a regular shift at the institution where employee X works which starts at 2:00 p.m. on Friday and runs to 10:00 p.m. on Friday. Is employee X entitled to be paid week-end premium when she works this shift?
B. Would it make any difference to the answer to the question in paragraph A if the shift started at either 2:30 or 2:45 p.m.?
C. There is a regular shift at the institution where employee X works which starts at 8 p.m. on Sunday and runs to 8 a.m. on Monday. Is employee X entitled to be paid week-end premium when she works this shift?
D. Would it make any difference to the answer to the question in paragraph C if the shift ended at either 7:15 a.m. or 7:30 a.m.?
Scenario 6 – Unclassified Employees
A. Does it make any difference to the answers to any of the above questions if employees X and Y are unclassified?
B. Unclassified employee Z works 6 hours on a Saturday to cover an unexpected institutional need. This is not a regularly scheduled shift and employee Z is not replacing any other employee. Is employee Z entitled to be paid week-end premium for those hours worked?
C. Unclassified employee Z works from 7 a.m. to 7 p.m. on a Saturday to cover an unexpected institutional need. Employee Z is not replacing any other employee but there are other employees working regularly scheduled shifts from 7 a.m. to 7 p.m. Is employee Z entitled to be paid week-end premium for those hours worked?
As noted earlier, it is necessary to determine the meaning of the term “shift” in 6.1.3 in order to answer the above questions posed by the parties. In 1A, a classified employee works a regular shift on Saturday and then works 4 hours at the end of her shift. The employee is entitled to the $8.00 shift premium for working her regular shift and the issue is whether the additional 4 hours of work constitute a “shift” under 6.1.3. In 2A, a classified employee replaces an employee who is unable to complete her regularly scheduled shift due to illness. Is the 6 hours of work performed by the replacement classified employee a “shift” under 6.1.3? The same question arises in 3A when an employee is called back to work on Sunday for 3 hours. In each of these instances, the Union submits that the work performed by the employee constitutes a shift, entitling the employee to the week-end premium.
The Union argues that the obvious purpose of 6.1.3 is to provide additional compensation to employees who work during the week-end. Since the regular shifts scheduled by the Employer vary in length from 4 to 12 hours, the Union maintains that what is important is the timing of the hours worked and not how many hours an employee works. The Union submitted that COR 4 and COR 5, which only address the scheduling of shifts, are not helpful in determining what the parties meant when they used the word “shift” in 6.1.3. The Union emphasized that the wording in 6.1.3 refers to “$8.00 per shift” and not “$8.00 per regularly scheduled shift”. The Union argues that if the parties had intended the word “shift” in 6.1.3 to mean a regularly scheduled shift, the parties could have easily used the necessary words to express such an intention. The Union also maintained that defining the term “shift” in COR 5.2 to, in effect, mean an employee’s regularly scheduled shift for the purpose of that article and the absence of a definition for the word “shift” in 6.1.3 are compelling indications that the parties intended the word “shift” in 6.1.3. to mean something other than a regularly scheduled shift. The Union argues that the purpose of Article 6.1.3 is best met by defining “shift” to mean any continuous period of work.
In support of its position, the Union referred me to Speers, GSB 1043/89 (Samuels) which deals with an issue involving the former Article 11.1 (now Article COR 1.1.1). The last sentence of the provision provides that if 50% of the hours worked fell within the period between 5:00 p.m. and midnight, the per hour premium shall be paid for all hours worked. The grievors worked as residential counselors from 11:30 a.m. to 11:00 p.m., slept at the residence until 7:00 a.m. and then worked for a 2 hour period until 9:00 a.m. In determining how the afternoon shift premium was to be paid, the Board concluded that a shift is a continuous period of work and that the period of work between 11:30 a.m. to 11:00 p.m., the period prior to the sleeping period, constituted a “shift” and that the grievors were entitled to the shift premium for all of the hours of the “shift”.
The Employer argued that the context of the relevant provisions and the purpose of those provisions should lead to the conclusion that the parties intended the term “shift” in 6.1.3 to mean a regularly scheduled shift. The Employer submits that the work performed by employees in the three examples set out above which were extracted from the scenarios do not constitute a shift, with the result that those employees are not entitled to the week-end shift premium. The Employer submits that if the parties had intended the week-end shift premium to be paid for any hours worked during the week-end, the parties would have drafted 6.1.3 to reflect that intention, like they did for the afternoon and night shift premiums. In the Employer’s view, the use of the word “shift” in 6.1.3 refers to the regular shifts that are scheduled by the Employer pursuant to COR5. The Employer also argues that an employee is only entitled to the week-end premium when he or she works an entire regularly scheduled shift during the week-end.
The Employer referred in its submissions to Morin, GSB 74/77 (Adams) which deals with an issue involving what was then Article 10.3. The grievor worked 7½ hours of overtime which overlapped the 12 hour period before his next scheduled shift. The issue for the Board was whether the “Collective Agreement requires that the grievor be paid at the rate of time and one half for those hours worked that fell within 12 hours of the completion of the overtime worked”. The disposition of the grievance depended on the meaning of the word “shift” as used in the phrase “the employee’s previous shift” found in paragraph 10.3. After canvassing three possible interpretations of the word “shift” in this context, the GSB determined that the words “the employee’s previous shift” referred to the employee’s previously scheduled regular shift. In reaching this result, the Board had regard to the scheduling provisions in Article 10, particularly the relationship between paragraphs 10.1 and 10.3. At some point after Morin was decided, the parties added a sentence to what is now COR5.2 which incorporates the GSB’s interpretation of the word ‘shift”. The additional sentence provides that “the term “shift” does not include any period of time in respect of which an employee is entitled to overtime payments or compensating leave in accordance with Article COR8 (Overtime) and Article COR9 (Call Back)”. The effect of this language is that the term “shift” means an employee’s regularly scheduled shift for purposes of Article COR5.2.
Although the above decisions are helpful, they deal with the meaning of the term “shift” within particular provisions of the Collective Agreement that have a unique context. The conclusions reached by the GSB in the Morin and Speers decisions are not determinative of what the parties intended by the use of the word “shift” in 6.1.3.
The parties agreed in 6.1.3 to provide a premium of $8.00 per shift to employees for all shifts worked during the week-end. The purpose of the provision is to provide additional compensation to employees who work week-end shifts. Having regard to the nature of its operation, the Employer schedules regular shifts on the week-end and during the week-end it also assigns employees work for varying periods of time in order to meet institutional needs. In the context of the parties’ submissions, the term “shift” either means any continuous period of time that an employee has worked, whether it be for 2, 4 or 7 hours, or it refers to a regularly scheduled shift. Upon reviewing the language of the Collective Agreement and particularly the language in COR6, it is my conclusion that the parties did not intend the term “shift” to apply to the performance of work irrespective of its duration, as argued by the Union. If the parties had intended that the performance of any work on the week-end warranted additional compensation, it is likely that they would have provided such compensation based on a dollar amount per hour worked during the week-end. I agree with the Employer’s position that it is significant that the parties agreed to a “per shift” week-end premium, rather than a per hour week-end premium.
In considering the Union’s position, I have also had regard to certain comments made by Arbitrator Adams in the Morin decision. Mr. Adams dealt with the issue of whether the term “shift” was used by the parties to refer to any period of time that an employee has worked, which is the same position advanced by the Union in the case at hand. In rejecting that meaning of the word “shift”, the arbitrator wrote at pages 10-11 as follows:
… However we do not think the parties intended such a broad meaning to be attributed to the term shift. In the industrial relations community the term, as a minimum, usually refers to a period of time that would ordinarily constitute a day’s work. Thus any period of work, for example an ad hoc three or four hour overtime assignment, would not constitute a shift within the meaning of the term. But, of course, the parties to a contract can provide otherwise if they wish, although the wording of the agreement before us suggests the customary meaning is what the parties had in mind. This can be seen from Article 9, entitled Tour of Duty, which describes a shift as a period of time having a predetermined commencement and ending. And the same approach is adopted in paragraph 17.5. A further indication that the parties intend the term shift to apply to a predetermined period of time that would ordinarily constitute a day’s work is found in Article 15 which provides that “the present practice for rest periods in each shift should be maintained”. Thus even without adverting to the dire financial consequences for the employer in holding that any overtime assignment constitutes a shift of work within the meaning of paragraph 10.3, we are satisfied that the parties did not intend this first possible meaning…
Although the focus of that decision was on the meaning of the term “shift” within the former Article 10.03, the above comments refer to provisions which are still present in this Collective Agreement, such as the Tour of Duty provision. I agree with the view that the term “shift” usually refers to a period of time that would ordinarily constitute a day’s work. There is nothing in 6.1.3 which would suggest that the parties intended something other than the usual meaning to apply. Of the two possible interpretations advanced by the parties, it is my conclusion that the Employer’s interpretation of the word “shift” reflects the intention of the parties. Accordingly, it is my conclusion that the term “shift” in 6.1.3 refers to the Employer’s regularly scheduled shifts.
I will now turn to the issue of the interpretation of 6.4. To reiterate, 6.4 provides that a “shift premium shall not be paid to an employee who for mutually agreed upon reasons works a shift for which he or she would otherwise be entitled to a shift premium.” I was referred to two GSB decisions which interpreted Article 11.4, a provision identical to the current 6.4. In Fitchett and Shannon, 963,964/85 (Gandz), the grievors, residential counsellors, requested a permanent afternoon shift and they were granted their requests by the employer. They grieved the employer’s failure to pay the afternoon shift premium. The employer did pay the shift premium to employees who were placed on a shift at management’s request for operating efficiency. The Board noted that the consistent approach followed by the employer was as follows:
When the employer requires a certain shift or shift schedule to be worked, it pays a premium whether or not the individual prefers that particular shift or shift schedule.
When the individual requires a certain shift or shift schedule, and the employer acquiesces in that desire, the shift premium is not paid.
The Board determined that it was the latter situation which fell within the meaning of Article 11.4’s terminology “mutually agreed upon reasons”. In denying the grievances, the Board concluded that the Collective Agreement does not require the employer to assume a premium cost for accommodating an employee’s preference for more personally suitable working hours.
In Mattison, 1593/89 (Watters), the Board adopted the interpretation of Article 11.4 as articulated in Fitchett and Shannon and concluded from the facts that the grievor did not “require” the night shift and was therefore entitled to the premium. The Board found that the grievor was only interested in the night shift because of her health and that she would have preferred to work other shifts. The Board noted that “the grievor’s request can be distinguished from a situation in which a particular shift is sought simply as a matter of personal preference or convenience”.
Premium payments are intended to provide additional compensation to employees who work during less desirable periods of time. 6.4, in effect, provides that a premium will not be paid for work during those less desirable hours when an employee requests to work a particular shift as a matter of personal preference or convenience and that request is agreed to by the Employer. In these circumstances, the working hours can no longer be considered to be less desirable and the Employer is not required to pay the premium.
Having regard to the foregoing interpretations of “shift” and 6.4, I will review the six scenarios:
Scenario 1 – Overtime
The Union took the position that the payment of the week-end premium and the payment of overtime for the same hours worked does not constitute pyramiding contrary to Article 15 because the two payments are for different purposes (see, Re Associated Freezers of Canada Ltd. and Teamsters Union, Local 419 (1979), 1979 CanLII 3985 (ON LA), 23 L.A.C. (2nd) 40 (Burkett). Since the Employer indicated at the hearing that it was not suggesting otherwise, it is unnecessary to deal with this issue.
The circumstances in 1A and 1B raise an issue concerning the application of 6.4 and 1A raises a “shift” issue as well. Employee X in 1A is not entitled to the week-end premium for the 4 hours of overtime on a Saturday which she works as a continuation of her regularly scheduled shift to cover for a fellow employee. The overtime hours in this instance do not constitute a shift since it would appear that the four hours do not represent a regularly scheduled shift. The Employer had argued that the 4 hours of overtime in this instance is a continuation of her regularly scheduled shift and not a distinct shift. In Morin, arbitrator Adams expressed the view that he was attracted “to those cases which have held the extension of a shift by overtime hours to be properly part of the shift.” In my view, the 4 ad hoc overtime hours can be considered as an extension of X’s regularly scheduled shift, thereby constituting a part of one shift and not a separate shift.
The answer to 1A would be different if the overtime hours, whether they are for a period of 4, 8, 10, or 12 hours, represent the regularly scheduled shift of the employee X is covering for. In such an instance, X would be working a double shift. Since 6.1.3 requires that the premium be paid per shift for all shifts worked on the week-end, X would be entitled to the premium for the second shift in such circumstances (subject to the Employer’s 6.4 argument), even if it commenced at the conclusion of her regularly scheduled shift.
The Employer concedes that employee X in 1B is working a shift within the meaning of 6.1.3. However, as noted earlier, the Employer claims that the process of assigning overtime creates a factual context which is caught by 6.4. In my view, 6.4 does not apply in an overtime context to deprive an employee of the week-end premium. When the need for overtime arises, the Employer requests an employee to work overtime. Although the employee may agree to work the overtime, it is the Employer that requires a certain shift to be worked, not the employee. The overtime context does not fit the concept of “mutually agreed” in 6.4 as interpreted by the Board in Fitchett and Shannon. Accordingly, having regard to the circumstances in 1B, X is entitled to be paid the week-end premium for the 8 hour overtime shift on a Saturday.
I note that the Union argued that the Employer was estopped from advancing its 6.4 argument in the context of overtime and the week-end premium because the Employer had always paid the afternoon and night shift premiums in overtime situations. Indeed, the Employer’s practice of paying the afternoon and night premiums in overtime situations may illustrate that the parties did not intend 6.4 to apply in circumstances dealing with the assignment of overtime. In any event, given my view of the application of 6.4 as set out above, I need not deal with these other issues.
Scenario 2 – Less Than A Full Shift
The questions in this scenario arise out of circumstances where an employee does not work a complete shift and another employee is called in to work the balance of the shift. The Employer indicated at the hearing that an employee who commenced a week-end shift would be entitled to the premium if the employee did not complete the shift due to illness or a WSIB compensable injury. In 2A therefore, X would be entitled to the week-end premium. Having regard to my interpretation of “shift” in 6.1.3, Y would not be entitled to the premium for the reason that Y did not work a regularly scheduled shift. Y only worked 6 hours of a 12 hour shift. If the parties had intended that an employee would receive the week-end premium for working part of a shift in such circumstances, it would have been easy for them to express such an intention. Their failure to do so and the use of the term “shift” compels the conclusion that the $8.00 is payable for working a complete week-end shift.
The answers to the questions in 2A would not be different if Y worked more than ½ of the shift. The amount of time worked by Y is irrelevant as long as those hours are less than a complete regularly scheduled shift.
The reason for X not completing the shift does make a difference. As noted above, X will receive the week-end premium if the reason she could not complete the shift related to illness or a WSIB injury. Where X does not work a full shift for reasons unrelated to illness and injury, X would not be entitled to the week-end premium, even if X were paid as if she had completed the shift. The week-end premium is earned by working a week-end shift. If X elected not to work a complete shift and instead took compensating time off, vacation time or union presidential leave for the remainder of the regularly scheduled shift, X would not be entitled to the week-end premium because X voluntarily decided not to complete her shift.
Scenario 3 – Call Back
X is not entitled to be paid the week-end premium in a call back situation because the 3 hours of work does not constitute a regularly scheduled shift. I agree with the Union’s submission that the payment of the week-end premium and payment for a call back do not constitute pyramiding, since each payment is made for a different purpose.
Scenario 4 – Voluntary Exchange of Shifts
In my view, the circumstances in 4A and 4B are caught by 6.4. The exchange of shifts is done at the request of and for the convenience of employees. The Union emphasized that the agreement in these situations is really between employees, with little involvement from the Employer. However, an agreement between employees to exchange shifts has to be approved by the Employer. Accordingly, a voluntary exchange of shifts constitutes a request by employees to work a shift for their convenience, disentitling both X and Y to the week-end premium.
Scenario 5 – Start and Finish Times
The four situations outlined in this scenario involve circumstances where an employee’s shift does not commence or end within the timeframe provided for in 6.1.3. In these examples, the employees miss out on being included by very brief periods of time. The Union suggests that it would be unfair from an employee’s perspective to deny the week-end premium, for example, when an employee works a 12 hour shift commencing at 2:45 p.m. on a Friday and the employee still works over 11 hours during the week-end period. However, the parties were quite specific in setting out the precise time period for which the week-end premium would be payable. If I altered these times, which is what the Union in effect suggested in its submissions, I would be clearly amending 6.1.3, contrary to Article 22.14.6 of the Collective Agreement. Accordingly, X would not be entitled to the week-end premium in the circumstances described in A, B, C, and D. I note that the absence of any entitlement to the week-end premium in circumstances where a shift commences shortly before 3:00 p.m. on a Friday, or ends shortly after 7:00 a.m. on a Monday, is a further indication that the parties did not intend that the week-end premium would be paid simply because an employee worked some hours during the week-end.
Scenario 6 – Unclassified Employees
Article 31.16.2 of the Central Agreement provides that COR6 applies to unclassified employees. Therefore, unclassified employees in correctional services are covered by 6.1.3. Unclassified employees are on call and utilized on an as needed basis, and, as a general rule, they not provided with regularly scheduled shifts. They fill in for classified employees who are absent for reasons such as illness and vacation, and they are offered work to meet unexpected institutional needs. The Employer agrees that if an unclassified employee is assigned to replace a classified employee on a regularly scheduled shift on the week-end, that employee would be entitled to the week-end premium. Consistent with its position, the Union argues that any work performed by an unclassified employee on the week-end would entitle the employee to the premium.
Given my interpretation of the term “shift” in 6.1.3, the answers to the questions in the previous scenarios would not change if X and Y were unclassified employees. In 6B and 6C, Z is not entitled to be paid the week-end premium. In each instance, Z is not working a regularly scheduled shift.
I will remain seized of these grievances should the parties encounter any difficulties in implementing this award or difficulties with respect to remedial issues.
Dated at Toronto, this 19th day of September, 2001.