GSB#0683/99, 0684/99
UNION# 99B666, 99B668
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Group Grievance)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
BEFORE Randi H. Abramsky Vice-Chair
FOR THE GRIEVOR John Brewin
Counsel
c/o Ryder Wright Boyle & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Melissa Nixon
Counsel, Legal Services Branch
Management Board Secretariat
HEARING January 29 and 30, 2002.
AWARD
At issue is whether the grievors, a group of unclassified employees at the Hamilton Court House, were entitled to overtime under Article 31.3.1 of the collective agreement for a series of mandatory training and orientation sessions held during evening hours on May 12 and May 13, 1999 and May 25, 1999.
Article 31.3 of the collective agreement provides as follows:
31.3 OVERTIME
31.3.1 One and one-half (1 ½) times the basic hourly rate shall be paid for authorized hours of work performed:
(a) in excess of seven and one-quarter (7 ¼) or eight (8) hours per day, as applicable, where employees work a regular thirty-six and one-quarter (36 ¼) or forty (40) hour work week, as applicable, or
(b) in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours, or
(c) in excess of the employees’ regularly scheduled work week, or
(d) in excess of thirty-six and one-quarter (36 ¼) or forty (40) hours per week where employees do not have regularly scheduled work days.
Facts
The parties’ provided an agreed statement of facts, which was then supplemented by viva voce testimony. The agreed statement of facts is as follows:
There are two grievances, both of which raise the same issue. They were filed on May 25, 1999.
The grievors were all unclassified staff at the Hamilton Court House. Some of the grievors were court clerks; the others are court registrars or court service officers and clerk monitors. The grievors primarily worked in assigned court rooms during court hearings, though they also did pre and post court work.
Each of the grievors were covered by standard “contracts” that provided, among other things, that they were to work “up to” 36.25 hours per week, on an “as required/as needed” basis.
The grievors were covered by the collective agreement between the parties. In particular, Article 31 applied to them.
The practice at the time of the grievances was that for the court clerks a schedule was published in advance indicating which days in the following period the court clerks were required. The schedule indicated as well the court room to which they were assigned. The court reporters and court service officers were generally advised of their work assignments the previous day.
Finish time varied for the grievors depending on the court to which they were assigned. The grievors’ work day would normally be completed one-half hour after the court hearings in their court room were concluded. Occasionally they would get authorization to work some additional time.
In May and June, 1999 management anticipated a move from four courthouses in Hamilton to one site at 45 Main St. East (although Family Court functions would continue to be carried on at a second site). Management set up a series of training or orientation sessions as follows: May 12 and May 13, 1999 from 5 p.m. to 9 p.m.; May 25, from 5 p.m. to 7:45 p.m. The grievors were required to attend all of these sessions and did attend them, as required.
The grievors and the Union say that by the provisions of Article 31.3.1 of the Collective Agreement, correctly interpreted, the Employer was obliged to pay them at time and a half for the time spend at the described sessions. The Employer’s position is that the grievors would only be entitled to overtime if they worked in excess of 36.25 hours in a particular week, in accordance with Article 31.3.1(d).
Elaine Young, one of the grievors, testified that in May 1999, she worked as a court clerk and weekend clerk monitor. She testified that for a number of years, the clerks received a monthly schedule specifying the days and courts to which employees were assigned. Sometime in 1998 or early 1999, that changed to a weekly schedule - again specifying the days and courts to which the clerks were assigned. This was confirmed by Judy Mann, Supervisor for Court Operations for Court Support at the John Sopinka Court House, who testified that each Friday she received a faxed copy of the following week’s schedule for the court clerks. In contrast, as set out in the agreed statement of facts, the court reporters and court service officers were generally advised of their work assignments one day in advance.
Through this scheduling, the employees would know their starting time. It depended on which court they were assigned to and the location of the court. Their starting time would either be 8:15, 9:15 or 9:30 a.m. depending on the court and its location. According to Judy Mann, the employees’ starting time was “99.9% predictable.” However, there was no set finishing time. The grievors’ workday ended when the court hearings in their courtroom were concluded, plus their required post-court work of either 15 or 30 minutes. Although, according to Ms. Young, the majority of the time, their workday ended at 4:00 or 4:30, she acknowledged that there was a “different scenario each day.”
Judy Mann, who worked as a court reporter and scheduled the court reporters, court service officers and court room registrars in 1999, also testified that the employees’ finishing times “varied tremendously.” She explained that a trial could settle or a witness might be unavailable and the trial could collapse and “we all went down as a court together.” She stated that “there was no consistent time frame” for the day to end. Mann testified that “occasionally” – two or three times per month – the court work past 5:00 p.m. “Rarely” did she work past 6:00 p.m.
Occasionally, court might be cancelled for the day and, in that event, the employees would receive two hours call-in pay. There could also be, on occasion, last minute changes in the schedule.
The parties agreed, at the hearing, not to elicit evidence regarding whether overtime pay, in accordance with Article 31.3.1(d) was paid to the grievors. Instead, both parties requested that I remain seized on that issue.
Arguments of the Parties
A. The Union
The Union contends that the grievors are entitled to be paid overtime for the training/orientation sessions in question under Article 31.3.1 (b) and/or (c). Specifically, the Union contends that those sessions were “in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours” or were “in excess of the employees’ regularly scheduled work week.”
In the Union’s submission, the grievors, whose schedules were determined either a week or a day in advance, had “regularly scheduled work days” within the meaning of Article 31.3.1(b) and the fact that their finishing time varied did not change that fact. “Regularly scheduled”, it submits, means scheduled in advance. For this reason, it contends that Article 31.3.1(b) and (c) apply, not (d) as asserted by the Employer. In support, the Union cites to OPSEU (Chircop) and Ministry of Transportation (1995) GSB No.3039/92 (Kaufman).
The Union also contends that the employees’ scheduled hours of work or “work day” is defined by the court session – it lasts as long as the court sits plus an additional 15 or 30 minutes. Further, it notes that the evidence was that the work day normally ends around 4:00 or 4:30, and only rarely goes beyond 5:00 p.m. Accordingly, it submits that within some boundaries, the employees assigned for a day can anticipate the hours of work for that day.
The Union argues that the fact that the grievors’ contracts provide for work “up to” 36 ¼ hours per week, or includes the words “as required/as needed” does not alter their entitlement to overtime. The key, it contends, is whether the employees have a “regularly scheduled work day” which, it asserts, they do.
The Union submits that the required training and orientation sessions were held in the evening hours, which were not part of their regularly scheduled work day. It notes that the classified employees who were required to attend were paid overtime for attending these sessions and asserts that the grievors should also have been paid overtime for these hours.
B. The Employer
The Employer contends that the grievors entitlement to overtime lies solely under Article 31.3.1(d) because they “do not have regularly scheduled work days” since their finishing time varies with the end of the court day. A “regularly scheduled work day”, it submits, requires both a starting and ending time. The fact that their ending time is uncertain, it submits, means that the grievors do not have specific “scheduled hours” under Article 31.3.1(b) and do not have a “regularly scheduled work week” under Article 31.3.1(c).
The Employer contends that each part of Article 31.3.1 applies to a distinct group of unclassified employees. Subpart (a), which both parties agree is not applicable, it submits applies to unclassified employees who work a regular 36 ¼ or 40 hours, Monday to Friday, 9 to 5, work week. Once their workday goes beyond that regular work day, overtime applies.
Subpart (b), it contends, applies to a shift worker “who work[s] on a regularly scheduled work day exceeding eight (hours)” of 8, 10 or 12 hours. If an employee works beyond their scheduled shift, overtime applies. In support of its interpretation it cites to OPSEU (Union Grievance) and Ministry of Correctional Services, GSB No. 2180 (1991) (Simmons). The Employer distinguishes Chircop, cited by the Union, because in Chircop, the employee had a shift, with both a specific starting and ending time, not just a scheduled start time like the grievors in this case. In its submission, to have a “regularly scheduled work day” there must be a specific starting and ending time. It is not enough to say that they finish “around 4.” It submits that there must be “scheduled hours” to trigger Article 31.3.1(b) and that without a specific ending time, there cannot be “scheduled hours” under this provision.
Subpart (c), it submits, applies to employees who work beyond their regularly scheduled hours for the week. If an employee was scheduled to work 40 hours on Monday through Thursday and was asked to work on Friday, those hours would be overtime under this subpart.
Subpart (d), the Employer contends, applies to those employees who do not have regularly scheduled work days, and it submits that the grievors fall into this category. The Employer points to their employment contracts which indicate no specific hours of work, but provide “up to 36 ¼” hours per week with no guarantees. The evidence, it argues, shows that the grievors do not work predetermined hours – there is a variety of starting times and unpredictable ending times. It notes that the employees schedule is subject to change, including possible cancellation of the day. Given this situation, it submits that subsection (d) applies and that it makes sense to apply it. The Employer contends that only when an employee works over 36¼ hours are they are entitled to overtime pay.
In support, the Employer cites to OPSEU and Ministry of Correctional Services, GSB No. 72/84 (1984)(Jolliffe); OPSEU (Bernard et al) and Ministry of Natural Resources, GSB No. 734/94 (1997)(Dissanayake). It submits that Article 31.3.1 was properly applied and that the grievances should be dismissed.
Decision
For the reasons set forth below, I conclude that Article 31.3.1 was properly applied. Accordingly, to the extent that the Employer complied with this provision, the grievances must be dismissed.
It is really quite understandable why the grievors felt that they should be paid overtime for the training and orientation sessions in question. At that time, according to Ms. Young, the staff was generally working full days, and the orientation/training sessions were additional, required hours. Further, the classified staff received overtime for these sessions.
The grievor’s legal entitlement to overtime, however, depends on the meaning of Article 31.3.1. That Article provides as follows:
31.3 OVERTIME
31.3.1 One and one-half (1½) times the basic hourly rate shall be paid for authorized hours of work performed:
(a) in excess of seven and one-quarter (7¼) or eight (8) hours per day, as applicable, where employees work a regular, thirty-six and one-quarter (36 1/3) or forty (40) hour work week, as applicable, or
(b) in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours, or
(c) in excess of the employees’ regularly scheduled work week, or
(d) in excess of thirty-six and one-quarter (36¼) or forty (40) hours per week where employees do not have regularly scheduled work days.
Both parties agree that Article 31.3.1(a) does not apply to the grievors. The Union concedes that they do not work a “regular thirty-six and one-quarter (36 ¼) or forty (40) hour work week.” Instead, the Union asserts that the grievors were entitled to overtime pay under subsection (b) and/or (c).
The wording of Article 31.3.1(b) requires that overtime be paid for authorized hours of work performed “in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours…” Consequently, to be entitled to overtime pay under this subsection, an employee must work in excess of their “scheduled hours” and must work “on a regularly scheduled work day exceeding eight (8) hours.” In this case, putting aside the question of whether this subsection only applies to shift workers who regularly work eight or more hours per day, there is a question about whether the grievors’ have “scheduled hours” within the meaning of Article 31.3.1(b).
The Union submits that they do have “scheduled hours” because when scheduled for a day, their hours are defined by the time the court is in session – the court’s hours plus either 15 or 30 minutes. In the Employer’s view, they do not have “scheduled hours” because their ending time is unpredictable.
I conclude that grievors do not have “scheduled hours” within the meaning of Article 31.3.1(b). The problem with the Union’s argument is that the court’s hours – to which the grievor’s hours are tied – are not certain. They vary, and can change at any time if the court “goes down.” A case may settle or a witness may be unavailable. Accordingly, the court does not have specific, “scheduled hours”, and neither do the grievors. The court – and the grievors – have a specific starting time, but they do not have a specific ending time. To have “scheduled hours”, there must be both a specific starting and ending time. For this reason, the grievors do not have “scheduled hours” within the meaning of this overtime provision and it does not apply to them.
That an employee must have “scheduled hours” under this provision was noted by the Board in OPSEU and Ministry of Correctional Services, supra. In that case, the Board was asked a series of hypothetical questions concerning overtime pay for unclassified employees. The Board noted at p. 8 that “ [w]e are not in a position to determine as a matter of fact whether or in what circumstances Article 3 employees may have “scheduled hours” or may be “regularly scheduled to work.” It continued:
Such a determination would have to be made on the facts of a particular case. Nonetheless the parties invite us by their question to interpret the provisions of Article 3.3 in the case of a hypothetical Article 3 employee who has “scheduled hours” or is “regularly scheduled,” and we can do so without determining in advance what would constitute such a schedule in any particular case.
One of the questions posed in that case, question #3, was the following: “Where the employees in an institution regularly work more than 8 hours per day (for example, 10 or 12 hours per day) are the Article 3 [unclassified] employees entitled to overtime pay when they work beyond their scheduled hours and those scheduled hours exceed 8 in the day?” The Board answered “yes”, stating at p. 15 as follows:
Article 3.3(b) [now Article 31.3.1(b)], unlike 3.3(a), makes specific reference to scheduled hours and a regularly scheduled work day. It has already been noted that whether an employee’s hours are scheduled and whether he has regularly scheduled workdays are questions of fact that cannot be answered except in the circumstances of a specific case. In the case of an Article 3 employee who does have scheduled hours and works on a regularly scheduled work day, the language of Article 3.3(b) is plain. To this extent, the answer to Question 3 must be “Yes.”
A similar conclusion was reached in OPSEU (Union Grievance) and Ministry of Correctional Services, supra. The Board determined that “an unclassified employee who is slotted into a classified employee’s work schedule of 12 hours” is not entitled to overtime pay for any hours worked in excess of eight. The Board held at pp. 8-9:
In our view, Article 3.4(b) [now Article 31.3.1(b)] gives a complete answer to the situation that is before us. … What we have here is an unclassified employee who is assigned to work a regularly scheduled 12 hour shift. That shift is “a regularly scheduled work day exceeding eight (8) hours.” It is to be noted that 3.4(b) states that overtime is to be paid when the employee works "in excess of the scheduled hours" unlike (c) which says “in excess of the employee’s regularly scheduled work week”. … Therefore, Article 3.4(b) applies and employees who are working on a regularly scheduled work day that is of 12 hours duration are not entitled to overtime unless they exceed the regularly scheduled hours of work for the day.
The only exception to this is in OPSEU (Chircop) and Ministry of Transportation, supra. In that case, the Board ruled that in light of the inclusion of the compressed work week provision for the unclassified employees, the holding in OPSEU (Union Grievance) and Ministry of Correctional Services, supra, was no longer controlling – and that in the absence of “other arrangements”, employees would be entitled to overtime for any hours worked over 8 in a day.
In my view, however, Chircop is distinguishable because the grievor in that case clearly had “scheduled hours”. The scheduled hours varied, but they were definite and specific. In the present matter, the grievors’ did not have specific “scheduled hours.” Accordingly, they are not entitled to overtime pay under Article 31.3.1(b).
Nor, in my view, are the grievors entitled to overtime under Article 31.3.1(c) for working authorized hours “in excess of the employees’ regularly scheduled work week.” Except for the court clerks, the grievors were scheduled one day in advance. Clearly, therefore, they did not have a “regularly scheduled work week” within the meaning of this provision. Nor did the court clerks. Given the uncertainty in their schedule, including whether they will be scheduled at all, they also did not have a “regularly scheduled work week.”
Instead, I concur with the Employer that under the specific circumstances of this case, the applicable overtime section is Article 31.3.1(d). Under Article 31.3.1(d), overtime pay is required for authorized hours “in excess of thirty-six and one-quarter (36 ¼) or forty (40) hours per week where employees do not have regularly scheduled work days.” There is no question that the grievors were scheduled in advance to work on certain days – whether one week or one day in advance. But there was no certainty in this. They were scheduled on an “as needed/as required” basis. They might be scheduled; they might not be scheduled. There was no guarantee of hours or work.
In this regard, Chircop is distinguishable. In that case, the grievor enjoyed a three-week rotating schedule giving him “three different but regularly scheduled work weeks…” (Dec. at p. 61). Thus, the board concluded that “his ‘work days’ were regularly scheduled on a 3-week rotation, such that Article 3.4(d) [now Article 31.3.1(d)] would not apply.” (Dec. p. 61) The Union argues that the grievors, likewise, once scheduled – be it a day or a week in advance - also had “regularly scheduled work days” so that Article 31.3.1(d) would not apply.
The difference is that in Chircop there was a regular three-week rotation. Chircop’s work days were scheduled on a regular basis, i.e., the same days each week during week 1; the same days each week during week 2; the same days each week during week 3, on an ongoing basis. In contrast, there is no evidence that the grievors’ scheduled days were regular at all. Once scheduled, the days were “scheduled work days.” But there is no evidence, as in Chircop, that the grievors had “regularly scheduled work days.” The word “regularly” in Article 31.3.1(d) modifies “scheduled work days.” It does not mean “scheduled in advance.” They must have “regularly scheduled work days” on an ongoing, consistent basis for Article 31.3.1(d) not to apply. Where, as here, unclassified employees may or may not be scheduled they “do not have regularly scheduled work days” and they must work in excess of 36 ¼ or 40 hours per work in order to receive overtime pay.
Accordingly, I conclude that Article 31.3.1(d) applies to the grievors, not Article 31.3.1(b) or (c). To the extent that the Employer has complied with Article 31.3.1(d), the
grievances are dismissed. To the extent, if any, that it has not complied with Article 3.1.3.1(d), I shall remain seized.
Dated at Toronto, this 12th day of February, 2002.