GSB# 2003-0232
UNION# 2002-0340-0020
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (James et al.)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Finance)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
Gavin Leeb Barrister and Solicitor
FOR THE EMPLOYER
Sean Kearney Counsel Management Board Secretariat
HEARING
April 2, 2004 and May 31, 2004.
Award
At issue is whether the grievors, five system Services Specialists with the Ministry of Finance, are entitled to call-back pay under Article UN 9.1 of the collective agreement. Article UN 9.1 provides as follows:
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 (1 ½ ) times his or her basic hourly rate.
Although the grievance was initially broader, the Union subsequently limited the grievors’ claim for call-back pay to periods when the grievors are called back to work following the afternoon “rotation” (as described by the Employer) or “shift” (as described by the Union). There is no claim that the grievors are generally entitled to call-back pay.
Facts
The grievors are all System Services Specialists, classified as System Officer 4’s, with the Ministry of Finance. They are Schedule 6 employees and hold quite an important job within the Ministry. Essentially, they trouble-shoot any problems that arise in the Ministry’s mainframe batch programs which run overnight. All of the tax groups within the Ministry run batch/computer programs overnight to generate tax statements, notices, and other tax documents which are sent out to the public. Some batch programs are also run during the day. The System Services Specialists schedule and monitor these batch programs. If a problem arises, the System Services Specialists are called to deal with it. In addition, during the day, they support, develop and implement procedures for the various tax branches within the Ministry as well as deal with problems that arise. The Position Description states, in part, that employees are “[r]equried to work on-call support from remote access on a rotating 7day/24hour basis.”
All five of the System Services Specialists work out of the Ministry’s head office. Historically, they worked during the day, Monday to Friday, between 7:30 a.m. and 5:30 p.m. Some would arrive early, at 7:30 a.m. and then work for 7 ¼ hours. Some would arrive later and work till 5:30 p.m. After that, on a rotating basis, someone would be “on call” to deal with any problems that arose. There was also a second, back-up on-call employee. The “core” hours of 8:30 a.m. to 4:30 p.m. had to be covered, but how that was done was decided collegially among the System Services Specialists. In addition, employees were “on-call” over the weekend, 7:00 a.m. to 7:00 p.m. Saturday and Sunday, to support batch programs run over the weekend.
Manager Network and Computer Operations for the Central Agencies Cluster Tom Aspden testified that the group is highly “professional and independent” and “do what’s necessary to ensure that the system works.” He stated that they perform a “critical business function” for the Ministry, and that “flexibility” was required to meet unexpected production issues which “happen regularly.”
Beginning September 30, 2002, the Ministry implemented what it termed a “second shift” from 4:30 p.m. to 12:30 a.m. A memo dated September 13, 2002 to staff stated, in pertinent part, as follows:
SUBJECT: On-site Rotating Shift
This memo is to confirm that beginning September 30, 2002 a second onsite shift will commence.
The Production Coordinator who is responsible for supporting nightly batch is required to come into work at 4:30 p.m. and work till 12:30 AM Monday through Friday excluding holidays.
Once the 2nd shift has completed you are still required to support batch remotely on-call and will be paid accordingly to the OPSEU Collective Agreement.
Manager Aspden testified that this change was implemented in order to reduce the number of after-hours calls to staff and to provide a quicker response to problems that arise. Having someone on-site, he explained, enables the System Services Specialist to respond immediately to any problem.
A second, similar memo was issued on September 19, 2002. That memo, in pertinent part, states:
SUBJECT: On-site Rotating Shift
As per our meeting in June 2002, this memo is to confirm that beginning September 30, 2002 a second onsite shift will commence. Once Production Coordinator at a time will work the 2nd shift, while the rest of the team is on the day shift.
The Production Coordinator who is responsible for supporting nightly batch is required to come into work at 4:30 PM and work till 12:30 AM Monday through Friday excluding holidays.
Once the 2nd shift has completed you are still required to support batch remotely and call back/on-call will be paid accordingly to the OPSEU Collecive Agreement.
The current procedure is to be followed for assigning shift schedules.
Manager Aspden testified that the sentence stating that call-back would be paid was a mistake. He testified that there was some confusion at the time regarding changes made to the new collective agreement, including whether the employees were entitled to call-back pay. In fact, in May 2002, call back pay was paid on a number of occasions. He subsequently learned that Schedule 6 employees are not entitled to call back and the practice ceased.
On August 7, 2003, the Ministry issued a memo to all OPSEU Schedule 6, Excluded and Unclassified Staff in the Enterprise Technololgy Solution Staff regarding, among other things, call back pay. The memo, in relevant part, states:
The CAC management team has recently become aware of some incorrect application of the Call Back provisions of the OPSEU Collective Agreements to Systems Officers in Schedule 6. In order to remedy this situation, the payment of Call Back to OPSEU Systems Officers in Schedule 6 has been terminated. This action is in accordance with a decision of the Grievance Settlement Board (#1055/88 Krete and MOL) which concluded that Schedule 6 OPSEU employees have no entitlement to the Call Back provisions of the OPSEU Collective Agreement. This interpretation has been confirmed by Management Board Secretariat. …
There was conflicting evidence concerning the amount of flexibility that the employees have regarding the afternoon shift and whether it was materially different than the day shift. According to Harry James, who has worked the shift on a rotational basis, there is no real flexibility in terms of the hours on the afternoon, unlike on the day shift. Employees, he stated, are expected to arrive by 4:30 p.m. and work until 12:30 a.m. This is true even when a problem arises during the night which requires time to solve. In his view, the employee is still expected to report at 4:30 p.m. the next day. On cross-examination, he acknowledged that this was true on the day shift as well – an employee could work late or have to log-in after hours, yet still report to work on time the next morning. He agreed that employees come in early and work late if they are working on a problem and that this was due to the “nature of the job.” He testified that in that situation, you “don’t leave at 12:30 even though the shift is finished.” He agreed, on cross-examination, that even though the day shift hours were not set in stone, employees generally needed to be around those hours. Further, if an employee left for a doctor’s appointment, they could be reached by cell-phone, whether on the day or afternoon shift. On re-examination, he testified that if an employee went in earlier than 4:30 p.m., he could “not generally” leave before 12:30 a.m.
Manager Aspden testified that the nature of the work on the day and the afternoon “rotations” were the same, and that both were flexible, depending on the problems that arose. An employee might need to come in a little earlier, or stay a little later. If an employee worked late, he or she “need not come in bright and early the next day” but could “come in a couple of hours later, if they chose.” There is no evidence, however, that this was conveyed to employees in regard to the afternoon rotation, or that it occurred in practice. He also testified that “core hours” had to be covered. For the day rotation, the core hours were 8:30 a.m. to 4:30 p.m. and for the afternoon rotation, the core hours were 4:30 p.m. to 12:30 a.m. When at full complement, four employees worked the day shift, and one employee worked afternoons, on a rotating basis.
In Mr. Aspden’s view, the rotations involved with the System Services Specialists are markedly different than the 12-hour shifts worked by the Schedule 3 System Officers. Those employees work from 7: 00 a.m. to 7:00 p.m., and then are replaced by another group of System Officers who work 7:00 p.m. to 7:00 a.m. He referred to these as “hard shifts”, with a “handover” to another group.
The collective agreement sets out the hours of work for the employees in different schedules. Article UN 2- Hours of Work, provides in relevant part as follows:
UN 2.1 Schedule 3 and 3.7
The normal hours of work for employees on these schedules shall be thirty-six and one-quarter (36 ¼) hours per week and seven and one quarter (7 ¼) hours per day.
UN 2.2 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.
UN 2.3 Schedule 6
The normal hours of work for employees on this schedule shall be a minimum of thirty-six and one-quarter (36 ¼) hours per week.
A number of provisions were added in the latest collective agreement concerning Schedule 6 employees. Specifically, Articles UN 8.7.1 was added. It provides:
Employees in Schedule 6 who perform authorized work in excess of 7.25 hours on a regularly scheduled work day shall receive:
(a) compensating leave of one-half (.5) hours for each hour worked between 36.25 and 48 hours, in respect of the total hours worked during the week on regularly scheduled work days; and
(b) compensating leave of one (1) hour for each hour worked in excess of 48 hours per work week, in respect of the total hours worked during the week on regularly scheduled work days.
(c) The compensating leave shall be taken at a time mutually agreed upon. Failing agreement, the ministry shall reasonably determine the time of the compensating leave.
Under UN 8.7.4 of the collective agreement, Schedule 6 employees who are required to work on a day off, “shall receive equivalent time off.” Under UN 8.7.5, employees in Schedule 6 who “are assigned to forest fire fighting or related duties, shall be paid one and one-half (1 ½) times the employee’s basic hourly rate, to be calculated on the basis of thirty-six and one-quarter (36 ¼) hours per week, for all such work after eight (8) hours in a 24 hour period.” UN 13.7 states that “ [n]otwithstanding anything in Article UN 13, employees who are in classifications assigned to Schedule 6 and who are required to work on a holiday included in Article 47 (Holidays) of the Central Collective Agreement shall receive equivalent time off.”
There is a substantial difference in monetary entitlement between the parties’ positions. Under the Employer’s approach, if an employee is required to assist with a problem during the hours of 12:30 a.m. to 7:30 a.m., he or she is paid compensatory time under UN 8.7.1 at the rate of one-half hour for each hour worked for hours worked beyond 36.25 in the week, up to 48 hours per week, and then on a 1:1 basis thereafter. Under the Union’s view, for a call-back under UN 9.1, employees are entitled to six hours pay.
Positions of the Parties
The Union
The Union argues that UN 9.1 is a general provision, applicable to all employees who meet the terms of that provision, including the grievors. It submits that the grievors’ Schedule 6 status is irrelevant, as determined in the decision denying the Employer’s earlier motion to dismiss. OPSEU (James et al) and Ministry of Finance, GSB No. 0232/03 (September 24, 2003). It also relies on OPSEU (Graham et al.) and Ministry of Labour (1991), GSB No. 160/90 et al. (Kennedy) for the view that Schedule 6 employees are entitled to provisions of general applicability.
In the Union’s view, any reliance by the Employer on the earlier cases which relied on the employees’ Schedule 6 status or the fact that Schedule 6 employees were not entitled to overtime can no longer be maintained. In the Union’s view, the compensatory leave set out in UN 8.7.1 is a form of overtime.
In this case, the Union contends that what matters is whether or not the three criteria set out in UN 9.1 have been met. It asserts that the evidence establishes that the three requirements for entitlement to call-back pay were met by the grievors: (1) the grievors left their place of work (2) they were subsequently called back to work, (3) and they were called back to work prior to the starting time of their “next scheduled shift”.
The Union submits that the afternoon shift is, indeed, a “scheduled shift” within the meaning of UN 9.1. Citing the definition of “shift” in OPSEU (Baker/Elliott) and Ministry of Labour (1990), GSB No. 90/89 (Kirkwood) at p. 9 as a “specified time of work which starts and ends on set times on a regular basis”, the Union asserts that the afternoon shift meets that definition. It starts at 4:30 p.m. and ends at 12:30 a.m. Any time worked before or after counts toward overtime. It asserts that the flexibility enjoyed by employees in regard to the day shift is absent in relation to the afternoon shift since the “core hours” of 4:30 p.m. to 12:30 a.m. must be worked.
In terms of any discrepancies between the evidence of Mr. Aspden and Mr. James, the Union asserts that the evidence of Mr. James should be preferred, based on his superior first-hand knowledge formed by performing the job. It also notes that Mr. James’s testimony was consistent with the two memos issued by the Employer in September 2002, which state that the employees are “required” to work from 4:30 p.m. to 12:30 a.m. The Union further contends that, operationally, it makes sense that there would not be flexibility since there is an operational need for someone to be there until 12:30 a.m.
Finally, the Union contends that in other cases, Schedule 6 employees who work a specific shift have been provided call-back pay by the Employer, citing OPSEU (Gallucci/Ansell/Cappuccitti) and Management Board Secretariat (1996), GSB No. 1262/93 et al. (Briggs).
The Union asserts that the purpose of call-back pay – to compensate employees for the inconvenience of having to work during their off-duty hours – applies to the situation of the grievors. In support, it cites to OPSEU (Elliott) and Ministry of Labour (1999), GSB No. 1282/97 (Briggs) and OPSEU (Koncz) and Ministry of Community and Social Services (1989), GSB No. 0748/88 (Verity).
The Employer
The Employer asserts that the collective agreement is clear that Schedule 6 employees are never entitled to call-back or premium overtime pay. The only exception to this is the specific provision for Schedule 6 employees fighting forest fires, which is clearly inapplicable. It asserts that what the Union is asking for, through this decision, is to provide the grievors with a contractual benefit - premium overtime pay - that it has never obtained at the bargaining table or from the GSB before in relation to Schedule 6 employees.
The Employer asserts that the Board should not ignore the prior case law which set out guiding principles. It argues that the provision of compensating leave for work performed by Schedule 6 employees in excess of 7 ¼ hours of work per day, as set out in UN 8.7.1, does not negate the prior case law, but instead, reinforces the view that Schedule 6 employees are not entitled to overtime at a premium rate. It submits that call-back pay is precisely that – overtime at a premium rate. It submits that historically, Schedule 6 employees have long received compensatory time off for extra work, and UN 8.7.1 was not a “sea change” in that regard, as asserted by the Union. There is still no premium overtime pay for Schedule 6 employees.
The Employer further argues that there was a change in Article UN 9 in the most recent collective agreement, but it had nothing to do with Schedule 6 employees. Instead, Section 9.2 was added. Under it, employees no longer physically have to return to the workplace. In addition, the initial call back and any subsequent calls during the same four-hour period “will be treated as a single ‘call back to work’ for pay purposes.” Yet, it asserts, there was no change to expand the provision to include Schedule 6 employees.
The Employer contends that for a new financial benefit to apply, the parties must use clear and unequivocal language, and that the onus rests with the Union to establish such entitlement. It notes that the call-back provision would require the Employer to pay substantially more for the same work than under UN 8.7.1 compensatory leave and contends that express language would be required to award such a substantial benefit. It asserts that the Union failed to meet its onus. In support, it cites to Re Noranda Mines Ltd. (Babine Division) and United Steelworkers of America, Local 898 [1982] 1 W.L.A.C. 246 (Hope); Re Canada Post Corp. and C.U.P.W. (Schlosser) (1993), 1993 CanLII 16663 (CA LA), 39 L.A.C. (4th) 6 (Bird); Re Cardinal Transportation B.C. Inc. and C.U.P.E, Local 561 (1997), 1997 CanLII 25143 (BC LA), 62 L.A.C. (4th) 230 (Devine).
Finally, the Employer asserts that the type of work performed by the grievors cannot be described as “shift work”. As in the earlier GSB decisions in relation to this issue, the Employer argues that a significant percentage of the grievors’ work is performed outside of regular hours. It notes that there are period of high demand and periods of no demand, and that need for the grievors’ services can arise at any time, not just their regular hours. It notes that they do not clock in or out, or need to report in. They work independently and autonomously. They do not “replace” another System Services Specialists when they report to work, and they can leave as long as they are reachable by cell phone. It asserts that the grievors have more flexibility than employees in a traditional shift job, and regularly work at times other than their usual hours. In the employer’s view, they are highly specialized, professional employees who do not perform “shift” work in the true sense. In support of its position, the Employer relies on OPSEU (Henderson) and Ministry of Energy (1990), GSB No. 1090/89 (McCamus); OPSEU (Baker/Elliott) and Ministry of Labour, supra; OPSEU (Krete) and Ministry of Labour (1989), GSB No. 1055/99 (Verity); OPSEU (Hill) and Ministry of Natural Resources (1990), GSB No. 1134/90 (Wright).
The Employer further asserts that there is no significant difference between the day and afternoon rotations. The employees perform the same type of work and face the same expectations and reality. They often work for more than 8 hours, regardless of their starting time, which is consistent with the “on-call” nature of their work. In the Employer’s view, it is unreasonable to assert that adding a second afternoon rotation transformed the grievors out of Schedule 6. The Employer argues that there is no provision in the collective agreement recognizing intermittent shift work.
The Employer further argues that the change in the Union’s position to limit the grievors’ claim for call-back pay to the afternoon rotational shift was a strategic one, designed to make it more palatable to the Board to permit a restricted entitlement to call-back pay in limited circumstances. In the Employer’s view, that approach is really the “thin edge of the wedge” to a claim for broader entitlement.
Decision
In my earlier decision in this case concerning the Employer’s motion to dismiss, I determined that the grievors’ status as Schedule 6 employees is not determinative of the issue of entitlement to call-back pay. The Decision, at p. 10 states:
Based on my reading of the case law, particularly OPSEU (Baker/Elliott), supra, it is not sufficient to rely on the status of an employee as a Schedule 6 employee. What matters is whether, under the specific facts, the essential elements required to qualify for call-back pay have been met.
After considering the closing arguments of the parties, I am still of that view.
The Board’s decision in OPSEU (Graham et al.) and Ministry of Labour, supra, supports that determination, as does the Board’s decision in OPSEU (Baker/Elliott), supra. In the latter case, at p. 8, the Board stated that “[a]s the article refers to the generic “employee” it is not limited to any specific type of employee.” In Graham, at issue was whether Schedule 6 employees had any entitlement to either on-call or stand-by pay. The Employer argued that Schedule 6 employees, for a variety of reasons, could never be entitled to those provisions. The Board held at p. 15 that there is not “a totally different and separate regime set down for Schedule 6 employees, but rather the issue was whether or not a particular article on its language was intended to apply to a Schedule 6 employee.” The Board continued at p. 16:
In considering the specific language of the Articles being considered in this arbitration to determine if they were intended to apply to Schedule 6 Employees, we believe that we should approach that task on the basic premise that collective agreement language conferring benefits on employee will be intended to benefit all employees who are subject to the collective agreement in the absence of specific exclusionary language for a particular group of employees or some indication that in the employment context those employees could not have been intended to be benefited by the Section.
In this regard, there are many places in the collective agreement where the parties specifically refer to the employees’ “schedule” in conferring benefits. Article UN 9 is not such a provision. It deals with, as the Board in OPSEU (Baker/Elliott), supra stated, “the generic” employee. Consequently, the question of entitlement is not determined by the employees’ status, but by whether or not they meet the terms of the provision.
This ruling is not to suggest that the grievors’ Schedule 6 status is irrelevant. In my view, it is highly relevant because that status relates to the nature of the work performed by the grievors and impacts the determination of whether the grievors’ have a “next scheduled shift” within the meaning of Article UN 9.1. In this case, there is no question that the grievors’ meet the first two criteria set out in Article UN 9.1. There is no dispute that the grievors’ left their workplace and were called back to perform authorized work, albeit remotely from home. The dispute centers on whether they were called back “prior to the starting time of his or her next scheduled shift…”
For a number of reasons, this is quite a difficult determination to make in this case. On the face of it, particularly the two memos issued by the Employer in September 2002, it sure looks like the grievors, on a rotating basis, are assigned to work a specific shift from 4:30 p.m. to 12:30 a.m., Monday to Friday. The memos even use the term “shift” rather than the term “rotation” that the Ministry used at the hearing. The evidence is clear that Mr. James understood that those were required hours, and even Mr. Aspden testified that those were “core hours” for which coverage was required. The flexibility that Mr. Aspden talked about – if an employee worked late, he could then come in later – does not seem to have been relayed to the staff, nor is there evidence that it was implemented in regard to the afternoon work.
The difficulty with leaving the analysis at that is the evidence in the record concerning the nature of the grievors’ work and the fact that their work often requires them to work outside of the standard hours. Essentially, a significant proportion of the grievor’s work is to fix problems that develop with the batch programs and computer system, so that system keeps working 24/7. Those problems develop with some frequency, but unpredictably, which often requires the grievors to work late or come in early. The length of any particular working day is unpredictable, whether the employee is working during the day or in the afternoon. In light of that, it is difficult to conclude that the grievors have “a specified time of work which starts and ends on set times on a regular basis.” OPSEU (Baker/Elliott), supra at p. 9. Even with the required “core hours”, the situation is more fluid than that.
The situation of the grievors appears to be quite different than the Schedule 6 employees in OPSEU (Gallucci/Ansell/Cappaccitti), supra, even through the grievors there appear to perform similar work. In that case, when the Employer moved to a 24-hour operation the employees opted to work a 12-hour shift. The 12-hour shift was designed to correspond to the shift worked by Data Base Technicians, who are Schedule 3 employees. Previously, the grievors had worked daytime hours, with flexibility as long as there were employees available to respond to calls. After they moved to a 12-hour shift, the evidence showed that their schedules were “predictable”. The Employer paid them call back pay if they were called into work prior to the commencement of their next shift. It should be noted, however, that the issue in that case did not involve the grievors’ entitlement to call-back pay, but whether or not the GSB had jurisdiction to require the Employer to revise the employees’ Schedule 6 status.
The evidence here showed that the nature of the work that the grievors perform is largely the same on both the day and afternoon shifts. What makes the afternoon shift less flexible is the fact that only one employee works it. That is what necessitates their being there during the core hours, not the fact that they have a set schedule. But even then, when a problem arises, they often work beyond the core hours.
The fact that the extra time worked is now considered “overtime” under UN 8.7.1 does not convert the employees’ regularly scheduled hours into a set shift. The overtime compensation is recognition that, generally, a Schedule 6 employee is to work a 7 ¼ hour day and 37 ¼ hours per week but that the actual time worked may often be more. The grievors here work, as required, to solve the problems that arise in the computer/batch system. They do not get to leave when the “shift” ends.
Although the issue is very close, based on the evidence in its totality, I conclude that the grievors, when they are assigned to the afternoon rotation (or “shift”) do not have a “next scheduled shift” within the meaning of Article UN 9.1. The grievors’ work, quite often, does not have “a specified time of work which starts and ends on set times on a regular basis.” Due to the nature of their work, the length of any particular work day is unpredictable. It may start before 4:30 p.m. and continue after 12:30 a.m. The grievors “are not shift workers in the traditional sense.” OPSEU (Krete) and Ministry of Labour, supra at p. 7. They certainly have regular hours, but often their work requires them to work at other times as well.
Conclusion
For all of the reasons set forth above, I conclude that the requirements for entitlement to call-back pay have not been established. The grievance must therefore be dismissed.
Issued this 9th day of June, 2004, in Toronto.