GSB# 1702/02, 2427/02
UNION# 2002-0453-0031, 2002-0999-0023
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Ducette and Union Grievance)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation and Management Board Secretariat)
Employer
BEFORE
Richard Brown
Vice-Chair
FOR THE UNION
Richard Blair Ryder Wright Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER
Sean Kearney Counsel Management Board Secretariat
HEARING
May 28, 2003
Decision
The union seeks call-back pay for some of the employees who provided essential or emergency services during the eight-week strike in early 2002. Alison Ducette claims call-back pay in her individual grievance, File No. 1702/02. The policy grievance, File No. 2427/02, concerns payment not only for being called back but also for standby and on-call; standby and on-call are not considered here. This decision deals only with call-back pay and only for employees in circumstances analogous to those underlying the Ducette grievance. Counsel agreed that entitlement to call-back pay in other scenarios would be addressed after they received this decision.
I
Alison Ducette, a transportation enforcement officer, was designated as an essential services worker. During the first four weeks of the strike, she was scheduled to work three shifts of 7.25 hours weekly at the Lancaster truck inspection station. A schedule posted before the commencement of the strike indicated she was required to work, during the week of March 27, on March 27, 28 and 31. A schedule posted on March 27, 2002 indicated she was required to work, during the week of April 3, on April 4, 5 and 7. On April 2, when Ms. Ducette was not scheduled to work, a manager phoned her at home, at approximately 6:00 a.m., and asked her to report for duty. She worked approximately 5.25 hours and was paid the basic hourly rate for that time.
II
In anticipation of a strike, the parties executed an agreement, dated September 20, 2001, entitled Conditions for the 2001-2002 OPS-OPSEU Essential Services and Collective Agreement Negotiations (the conditions document). The terms and conditions of employment for employees providing essential and emergency services are governed by article C3a of the conditions document. The relevant portions of that article state:
All collective agreement provisions apply to essential and emergency workers without interruption, save only that Appendix 9 and Appendix 18 shall not apply.
For employees who are designated and used for essential services the above terms and conditions of employment apply.
For those employees who are used to perform emergency services as provided in the emergency services part of the essential services agreements and as required by the Employer the above terms and conditions of employment apply. After determining that an employee is to be used to perform emergency services work, the above terms and conditions of employment apply.
In OPSEU and Management Board Secretariat, File 1510/02, decision dated December 4, 2002, I considered what article C3a of the conditions document said about the application of the collective agreement to essential service workers:
For an employee who is designated to provide essential services and does so, when does he or she begin to receive the protection of the collective agreement and when does that protection cease? The absence of any temporal limitation in the third paragraph of article C3a, together with the phrase “without interruption” in the first, indicate that such an employee is covered by the collective agreement from the first day of the work stoppage to the last. (page 17; emphasis added)
The applicable collective agreement is the 1999-2001 contract. Article ADM 9.1 of that agreement deals with call-back pay for employees in the administrative bargaining unit:
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 one and one-half (1½) times his or her basic hourly rate.
The call-back provisions for employees in other bargaining units are identical.
III
The application of the law to the facts at hand is straightforward. Ms. Ducette was designated to provide essential services and did provide such services during the strike. Accordingly, she was covered by the collective agreement from the first day of the work stoppage to the last. She left her place of work at the end of her scheduled shift on March 31; she was called back to work on April 2, before her next scheduled shift on April 4. In these circumstances, she was entitled to call-back pay as specified in article ADM 9.1 of the collective agreement.
Dated at Toronto this 5th day of June, 2003