GSB#2007-1773
UNION#2007-0526-0016
Additional Files – Appendix ‘A’
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (McGann et al.)
Union
- and -
The Crown in Right of Ontario (Ministry of Attorney General)
Employer
BEFORE
Owen V. Gray
Vice-Chair
FOR THE UNION
Stephen Giles and Anastasios Zafiriadis Ontario Public Service Employees Union Grievance Officers
FOR THE EMPLOYER
Len Hatzis Ministry of Government Services Counsel
HEARING
June 9, 2009.
DECISION
1These proceedings concern a number of grievances that raise issues concerning Appendix 32 to the 2005-2008 collective agreement. This decision answers the following question with respect to calendar year 2007:
In and of itself, is it a violation of the Collective Agreement or any applicable MoS or MoA for staff that have worked hours in excess of the minimum annual hours categories, plus the 10% “overage”, to receive straight-time pay as opposed to over-time pay for vacation credits used, Statutory Holidays (that were not actually worked), STSP credits used and paid leaves (e.g. bereavement leaves)?
The focus of the question is on the rate payable in respect of vacation credits, statutory holidays, Short Term Sickness Plan credits and other paid leaves when they are used or taken after the employee has accrued 110% of the minimum annual hours for the employee’s category. Terms used in the question are explained in the analysis that follows.
2Having reserved my decision and reflected on the parties’ submissions, I find that the answer to this question is “yes.”
3Appendix 32 was a new provision in the 2005-2008 collective agreement. It established the terms and conditions of employment for “Flexible Part-time” (or “FPT”) classified employment for employees who work primarily in courtrooms, where hours of available work vary from day to day. Unlike the Regular Part-time employees provided for in Part C of the parties’ collective agreement, FPT employees do not have “regularly scheduled” hours of work each day or each week. They do, however, have a defined minimum number of hours per calendar year. That number depends on the “annual hours category” to which the employee is assigned.
4“Overage” hours are hours in the year beyond the annual minimum for the FPT employee’s category. Section 2 of Appendix 32 provides that some overage hours are to be treated as “overtime” for pay purposes:1
SECTION 2 - AVERAGING HOURS MODELS
Categories of Annual Hours:
Employees shall be assigned to one of the following categories of annual hours. However, these annual hours categories have been established based on historical data and may need to be revised in consultation with the Union as a result of implementation.
Category 1: a minimum of 720 hours per annum;
Category 2: a minimum of 1000 hours per annum;
Category 3: a minimum of 1200 hours per annum;
Category 4: a minimum of 1400 hours per annum;
Category 5: a minimum of 1500 hours per annum.
Note: It is agreed that Category 1 shall, in any event, not be altered.
Hours Worked Over Annual Requirement:
In addition to the minimum number of hours provided in an employee’s assigned annual hours category, the Ministry may assign additional overage hours up to 10 percent (10%) of employees’ assigned annual hours category. All hours worked prior to reaching the ten percent (10%) above threshold will be paid at straight time.
At the end of the averaging period, any excess hours standing to the employee’s credit over and above the 10% overage will be considered overtime.
Parenthetically, it is not apparent why the parties agreed to this overtime treatment of hours beyond 110% of the annual minimum, when an FPT employee could accrue such hours without ever having had to work more hours in a day or in a week than a full-time classified or fixed-term employees would work at straight time. No reason or purpose was suggested in argument. It would be folly to speculate about its purpose in this decision. These observations are not meant to be critical, but only to explain why the analysis that follows makes no reference to the purpose of this overtime.
5Appendix 32 identifies the provisions of the collective agreement that apply to FPT employees. When the Appendix was first agreed upon in June 2005, that list included Articles 74 (Bereavement Leave) and 75 (Special and Compassionate Leave). The parties’ Memorandum of Settlement (“MoS”) of December 20, 2005, added Articles 71 (Short Term Sickness Plan), 72 (Vacation and Vacation Credits), and 73 (Holiday Payment). Those articles all appear in Part C of the collective agreement, which describes the entitlements of Regular Part-time employees. Since FPT employees have no regular daily or weekly hours against which to measure the entitlements under those articles, one question that arises about these entitlements is the number of hours per day for which an FPT employee will be entitled to pay while on any of these forms of paid leave. In answer to that question, the parties agreed in the MoS of December 20, 2005 that each annual hours category would have a corresponding prorated daily number of hours for this purpose:
(5) The parties agree to the application of the following definitions to those items agreed to and identified in paragraph (3) above:
(v) For the purposes of accrual and usage of sick leave and vacation leave credits and for the usage of all applicable paid leave provisions, a “day” shall be prorated from each annual hours of work category as follows:
Category 1 (720): 2.76 hours; Category 2 (1000): 3.83 hours; Category 3 (1200): 4.59 hours; Category 4 (1400): 5.36 hours; Category 5 (1500): 5.74 hours.
(Paragraph (3) of that agreement was the paragraph in which the parties expanded the list of the collective agreement articles applicable to Flexible Part-time employees with the modifications set out in paragraph (5).)
6Another question that arises when incorporating the notion of paid leave into this sort of employment regime is whether the hours with which FPT employees are credited for purposes of these paid leaves are treated like hours actually worked for other purposes: for the purpose of assessing, for example, whether the employee has received his or her minimum annual hours. Whatever one might otherwise discern from the language of their written agreements alone, the parties clearly agree that these paid leave hours are included in calculating whether the employee has received his or her minimum annual hours. This is an important feature of the context in which the present dispute arose and must be resolved.
7The employer practice addressed in this decision is illustrated by two grievances of Marlene Hollingsworth (Files 2007-3737 and 2007-3738). By late October 2007, Ms. Hollingsworth had worked or been credited with 110% of the minimum annual hours for her category. Between then and the end of the calendar year, she had three paid holidays (November 11th, December 25th, and December 26th) and took eight approved vacation days (December 18, 19, 20, 21, 24, 27, 28 and 31, 2007). She was credited for pay purposes with the appropriate number of hours for each of these days, but was paid for those hours at the straight time rate. She grieved that she should have been paid for those hours at the overtime rate.
8The claim is based on the last sentence of Section 2 of Appendix 32:
At the end of the averaging period, any excess hours standing to the employee’s credit over and above the 10% overage will be considered overtime.
The union submits that the “averaging period” to which that sentence refers is the year to which the phrases “minimum annual hours” and “annual requirement” refer: calendar year 2007 in this case. It argues that the leave hours in question were “excess hours standing to the employee’s credit” at the end of that period. Accordingly, it says, those hours should have been included in calculating the total annual hours and, thence, the “excess hours” that had to be “considered overtime” as required by that sentence.
9The employer’s position is that the only overage hours for which it was obliged to pay an overtime premium in Ms. Hollingsworth’s circumstances (in 2007) were hours actually worked. It says that was “clarified” by parties’ Memorandum of Agreement (“MoA”) of August 30, 2006, through the repeated use of the word “worked” when referring to hours. The body of that agreement is as follows:
To clarify the payment of the 10% overage and overtime to Flexible Part-time employees as set out in the Memorandum of Agreement dated June 24, 2005 under Appendix 32 of the Central Collective Agreement.
The Memorandum of Agreement dated June 24, 2005 under Appendix 32 of the OPSEU Collective Agreement provides:
“In addition to the minimum number of hours provided in an employee’s assigned annual hours category, the Ministry may assign additional overage hours up to 10 percent (10%) of employees’ assigned annual hours category. All hours worked prior to reaching ten percent (10%) above threshold will be paid at straight time.”
The parties agree that once an employee has worked the total hours in his/her assigned minimum annual hours category, the payment of “overage hours” up to ten percent (10%) above an employee’s assigned minimum annual hours category, shall be paid as accrued.
For clarity, “overage hours” worked by an employee within a pay period will be paid out on the next available pay date, in addition to that employee’s normal bi-weekly Flexible Part-time pay.
For example, an employee in the Flexible Part-time 720 minimum annual hours category who has worked 721 or more hours, up to 792 hours within a calendar year (excluding 2006), shall be paid at straight time on the corresponding pay date for all hours worked over and above 720 hours within that pay period. This is in addition to the employee’s normal bi-weekly Flexible Part-time pay.
The Memorandum of Agreement also provides:
“At the end of the averaging period, any excess hours standing to the employee’s credit over and above the 10% overage will be considered as overtime.”
The parties agree that once an employee has worked a total of hours exceeding the ten percent (10%) overage hours of his/her assigned minimum annual hours category within a calendar year (excluding 2006), that these hours shall be considered as over-time, paid at one and one-half (1 1/2) times the employee’s current salary step rate.
For example, a Flexible Part-time employee in the 720 annual hours category shall commence incurring overtime upon working 793 or more hours within a calendar year (excluding 2006).
Overtime will be paid within two (2) months of the pay period with which the overtime was actually worked. This is in addition to the employee’s normal bi-weekly Flexible Part-time pay.
The parties further agree that these terms are independent of any entitlements individuals may have under Article 73 — Holiday Payment of the Collective Agreement.
(Underlining and italics are as in the original.)
10Employer counsel also argues that paragraph (5)(v) of the MoA of December 20, 2005 (quoted in paragraph [4] above) says that hours credited for leaves are to be paid at straight time.
11As for this last point, paragraph (5)(v) of the agreement of December 20, 2005 only says what number of hours is to be credited for a day’s leave. It does not say anything about the rate at which the employee is to be paid for those hours.
12I agree with the union that (at least for someone who remains in FPT employment, and in the same annual hours category, for the entire calendar year) the “averaging period” referred to in the last sentence of paragraph 2 of Appendix 32 must be the year contemplated by the phrases “annual hours” and “annual requirement.”
13The sentence focuses on “hours standing to the employee’s credit.” The provision does not expressly answer the question whether these hours are just hours actually worked or also include paid leave hours. The very same ambiguity exists in the references in Article 2 of Appendix 32 to minimum annual hours. It does not say whether these are only hours actually worked, or include paid leave hours. Significantly, nothing in the Appendix or any subsequent agreement of the parties suggests that these two otherwise identical questions should have or do have different answers.
14The parties have a very clear understanding that the answer to that question, when it is asked about minimum annual hours, is that leave hours are included. That understanding continued after the MoA of August 30, 2006. The strength of the parties’ continuing understanding in this regard is illustrated by the parties’ agreement about the meaning of the following words in their subsequent agreement of September 13, 2007:
The employer will make reasonable efforts subject to operational feasibility to ensure employees are scheduled to work the minimum annual hours for their category.
(emphasis added) The parties agree that leave hours are included in determining whether the employer has met this obligation. If hours for which employees are “scheduled to work” include their vacation and other paid leave hours, then it is no stretch to conclude that for these parties, in this context, “hours worked” must be shorthand for a concept that includes paid leave hours.
15The phrase “normal bi-weekly Flexible Part-time pay” in the Memorandum of Agreement of August 30, 2006 refers to another feature of the FPT model of employment: regular pay despite irregular hours. The FPT employee receives regular bi-weekly pay that is based on the “average weekly hours prorated from the minimum annual hours,” rather than on the number of hours actually worked (or credited) during the pay period. The effect of this arrangement is that by the end of a year in which his hours worked and credited total exactly the minimum annual hours, the employee will have received the pay to which he is entitled for those hours. Since an FPT employee might work more hours than that in the course of a year, this is obviously minimum pay. But when does the employee receive pay for any extra or “overage” hours beyond the minimum? Does she really have to wait until the end of the year for that pay, as might seem to follow from the language of the “Hours Worked Over Annual Requirement” portion of section 2 of Appendix 32?
16That question was addressed in the MoA of August 30, 2006.2 That agreement stated that once the employee’s hours (that is, hours to date for the year) reached the annual minimum for her category, her pay would thereafter be the “normal” bi-weekly pay for that category plus pay for the actual overage hours that “accrued” in the pay period. It also provided that once the employee’s total hours for the year reached 110% of the minimum annual hours for her category, overtime pay for the subsequent, additional hours would be paid within two months.
17The MoA of August 30, 2006 does repeatedly refer to hours “worked.” There is no separate reference to hours credited for leaves, no separate explanation of when they are to be paid or how they are taken into account. The fourth and sixth paragraphs say that it is hours “worked” that are counted in determining whether the employee has achieved the minimum annual hours. The employer concedes, however, that after securing this agreement it continued to count leave hours toward the minimum hours threshold. That only makes sense if, for purposes of this agreement, “hours worked” is a shorthand description that embraces both hours actually worked and hours credited to satisfy paid leave entitlements.
18One of the peculiar implications of the employer’s position is that if the grievor had worked the same number of hours she did actually work and had been credited with the same number of paid leave hours, but the leaves had been taken earlier in the year before she reached her minimum hours threshold, then her total pay for the year would have included the amount she seeks in these grievances. On the employer’s view, leave hours could have had a different effect on income (in 2007) depending on when the leaves were taken. If the MoA of August 30, 2006, had been meant to “clarify” the equivalency (or otherwise) in treatment of hours actually worked and hours credited for paid leaves, one would have expected that issue to be explicitly addressed, particularly if it was meant to “clarify” that the extent of equivalency in treatment would depend on the timing of the leave.
19As it is, it seems clear that the parties’ agreement of August 30, 2006 was only focused on clarifying the timing of payment for overage at the applicable rate, not on the basis for determining the rate payable for leave hours. Having regard to the context, particularly the parties’ clear practice and understanding both before and after that agreement concerning credits toward minimum annual hours, I conclude that the word “worked”, when used in conjunction with the word “hours” in the MoA of August 30, 2006, had no different or more precise meaning than it seems to have had generally in dealings between the parties on these issues: “hours worked” was shorthand for hours that include leave hours.
20I conclude that the last sentence of Article 2 of Appendix 32 required, both before and after the MoA of August 30, 2006, that all hours to the credit of the employee be included in calculating the total hours for the year and, thence, the excess hours that are to be treated as overtime under that provision. Paid leave hours were hours to the employee’s credit for this purpose, whether the leaves were taken before or after the point in the year when the employee had accrued her minimum annual hours.
21Ms. Hollingsworth was paid at straight time for the appropriate number of hours for each of the paid holidays and vacation days in issue. I direct that the employer pay her the additional half-time premium for each of those hours, together with interest calculated in each case from a date two months after the pay period in which pay for the hours was earned. I remain seised with any dispute that the parties may be unable to resolve concerning calculation of the amount to be paid to Ms. Hollingsworth pursuant to this direction, including any issue concerning the appropriate rate of interest. With that reservation, the hearing with respect to Files 2007-3737 and 2007-3738 is concluded.
22The parties are invited to consider whether other grievances with which I am seised raise issues that can now be settled in light of this decision.
Dated at Toronto this 12th day of June, 2009.
Appendix ‘A’
GSB#
Union#
Grievor
2007-1682
2007-0228-0050
Jolicoeur, Brenda
2007-1773
2007-0526-0016
McGann, Dag
2007-2463
2007-0212-0026
Cho, Kellen
2007-3133
2007-0119-0016
Gibbon, Linda
2007-3248
2007-0228-0055
Caschera, Jessica
2007-3366
2008-0205-0002
Wilson, Jeffrey
2007-3367
2008-0205-0003
Wilson, Jeffrey
2007-3368
2008-0205-0011
Wilson, Jeffrey
2007-3370
2008-0205-0013
Wilson, Jeffrey
2007-3371
2008-0205-0014
Wilson, Jeffrey
2007-3372
2008-0205-0015
Wilson, Jeffrey
2007-3373
2008-0205-0016
Wilson, Jeffrey
2007-3374
2008-0205-0017
Wilson, Jeffrey
2007-3375
2008-0205-0018
Wilson, Jeffrey
2007-3377
2008-0205-0020
Wilson, Jeffrey
2007-3378
2008-0205-0004
Antoniak, Stephanie
2007-3379
2008-0205-0005
Kiss, Juliana
2007-3380
2008-0205-0006
Iacobucci, Anna
2007-3381
2008-0205-0007
Terpou, Beverly
2007-3382
2008-0205-0008
Iarusso, Terri
2007-3383
2008-0205-0009
Young, Elaine
2007-3729
2007-0212-0029
Hollingsworth, Marlene
2007-3733
2008-0212-0001
Dolan, Krystyne
2007-3734
2008-0212-0002
Marceau, Heather
2007-3735
2008-0212-0003
Hollingsworth, Marlene
2007-3736
2008-0212-0004
Hollingsworth, Marlene
2007-3737
2008-0212-0005
Hollingsworth, Marlene
2007-3738
2008-0212-0006
Hollingsworth, Marlene
2007-3824
2008-0453-0002
Markell, Lynn
2007-4035
2007-0526-0029
Schacherl, Susette
2007-4036
2007-0526-0030
Giannopoulos, Tina
2007-4037
2007-0526-0031
Thakurdin, Annie
2007-4038
2007-0526-0032
Caguioa, Petronila
2007-4039
2007-0526-0033
Boyes, Chuck
2007-4040
2007-0526-0034
Janu, Ivana
2008-0015
2008-0205-0027
Wilson, Jeffrey
2008-0016
2008-0205-0028
Wilson, Jeffrey
2008-0017
2008-0205-0029
Wilson, Jeffrey
2008-0018
2008-0205-0030
Wilson, Jeffrey
2008-0019
2008-0205-0031
Wilson, Jeffrey
2008-0020
2008-0205-0032
Wilson, Jeffrey
2008-0021
2008-0205-0033
Wilson, Jeffrey
2008-0022
2008-0205-0034
Wilson, Jeffrey
2008-0193
2008-0212-0012
Hollingsworth, Marlene
2008-0194
2008-0212-0013
Hollingsworth, Marlene
2008-0197
2008-0212-0016
Marceau, Heather
2008-0198
2008-0212-0017
Motiak, Ginette
2008-0201
2008-0228-0011
Gautier, Janet
2008-0280
2008-0212-0018
Hollingsworth, Marlene
2008-0402
2008-0526-0003
Nosova, Larissa
2008-0744
2008-0212-0019
Motiak, Ginette
2008-0745
2008-0212-0020
Royer, Raymond
2008-0746
2008-0601-0002
Chenier-Tulonen, Denise
2008-0795
2008-0212-0021
Hollingsworth, Marlene
2008-0796
2008-0212-0022
Hollingsworth, Marlene
2008-0797
2008-0212-0023
Humphries, Tammy
2008-0803
2008-0228-0020
Amador, Deborah
2008-0880
2008-0205-0040
Wilson, Jeffrey
2008-0955
2008-0205-0085
Wilson, Jeffrey
2008-0956
2008-0205-0086
Wilson, Jeffrey
2008-1464
2008-0212-0025
Hollingsworth, Marlene
2008-1702
2008-0205-0088
Campell, Laurel Elaine
2008-2094
2008-0526-0012
Lam, Maria
2008-2398
2008-0212-0030
Hollingsworth, Marlene
2008-2399
2008-0212-0031
Hollingsworth, Marlene
2008-2602
2008-0710-0001
McKinnon, Trudy
2008-2603
2008-0710-0002
McKinnon, Trudy
2008-2688
2008-0212-0032
Hollingsworth, Marlene
2008-2689
2008-0212-0033
Hollingsworth, Marlene
2008-2966
2008-0212-0034
Hollingsworth, Marlene
2008-2967
2008-0212-0035
Hollingsworth, Marlene
2008-2969
2008-0405-0002
Hunt, Julie
2008-3497
2009-0205-0001
Lazarowich, Lorry
2008-3498
2009-0405-0002
Thompson, Lynn
Footnotes
- The language quoted is the language in effect prior to January 1, 2008.
- It was answered again, differently, in the parties’ agreement of September 13, 2007, which took effect for the 2008 calendar year. This decision deals with what happened in calendar year 2007, before that agreement came into effect.