GSB#2009-2689

UNION#2010-0999-0003

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)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Stephen Giles & Anastasios Zafiriadis Ontario Public Service Employees Union Grievance Officers

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Counsel

HEARING

February 23, 2010.

Decision

1In the collective bargaining negotiations that took place in 2005, the parties agreed to insert a new Appendix 32 into the Collective Agreement. That provision provided for a change of status for a number of employees from fixed term to the new category of “flexible part time” (hereinafter referred to as “FPT”). At the outset the Employer referred to this initiative as the “Revitalized Workforce Project” (“RWP”). As of January 1, 2008 it has been commonly known as “Integrated Labour Relations Strategy” or “ILRS”.

2This change brought about many employee questions and ultimately, a number of disputes/grievances.

3By all accounts, there were a number of areas in the initial language of Appendix 32 that required clarification. Accordingly, in an effort to continue to work together through many of the identified problem areas, the parties negotiated a series of agreements regarding the various matters needing to be addressed. Additionally, in an ongoing effort to resolve outstanding issues that continued to arise, amendments were made to Appendix 32 in the next (and now current) Collective Agreement.

4Prior to negotiating the most recent Collective Agreement changes, the parties agreed to a fairly comprehensive Memorandum of Agreement dated September 13, 2007. This Agreement resolved the identified disputes that had been outstanding and further recognized that future grievances might arise. In large measure, the amendments agreed upon in the September 13, 2007 Memorandum of Agreement were incorporated into Appendix 32 of the current Collective Agreement.

5Since September of 2007, approximately two hundred grievances have been filed. In an effort to resolve these matters efficiently, the parties worked together to create a process for the efficient litigation of all outstanding issues. To that end, a number of grievances have been heard and decided by the Board. Those decisions have resolved a number of outstanding matters.

6Given the passage of time and the number of grievances that had yet to be determined, the parties agreed that it was in their collective interest to further streamline the litigation process. In considering various options, it was agreed to investigate the possibility of adopting a process similar to that utilized by the Union and the Ministry of Community Safety and Correctional Services regarding “transition grievances”. Those grievances were filed as the result of the major re-organization within that Ministry. My assistance was sought in this regard.

7At our hearing held on January 18, 2010, the parties agreed to a number of issues including:

o All grievances outstanding as of January 18, 2010 and those filed in the foreseeable future flowing from the interpretation, application and administration of Appendix 32 will be referred to me for determination.

o While it is understood that all decisions under this process will be consistent, they are without precedent or prejudice in accordance with Article 22.16.2.

o I will determine the process to be followed for the litigation of these matters.

8The process for the litigation of the remaining grievances should be efficient and provide a timely and appropriate final resolution. In arriving at my decision in this regard, consideration was given to Article 22.16.2 which states:

The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

9As was the case in the “transition” process, there are a large number of grievances to determine and the parties are agreed that “traditional arbitration” will not serve their purpose. Therefore, in accordance with my jurisdiction to so determine, these matters will be litigated on the following basis:

• Grievances are to be presented by way of each party presenting a statement of the facts with appropriate documents, if any, and accompanying submissions. I understand that in many cases, particulars have been provided and documents exchanged. That preparatory work should further assist efficiency.

• I recognize that some grievors and managerial employees may wish to attend and provide oral evidence. However, given the task at hand and the time by which to do it, I order only the committee members from each party will attend.

• It may be that in a few instances some confusion might arise regarding certain facts. It might also happen that I will find that insufficient evidence has been provided. In those instances, should they arise, I will direct the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In the event I find there is still uncertainty regarding facts, I reserve the right to ask for viva voce evidence. It is my hope that this need shall never arise.

• Hopefully decisions can be issued within a relatively short period of time following submissions. My decisions will contain brief reasons and sufficient rationale so as to provide the parties with an interpretation thereby allowing them to move forward.

10This is the second decision under this process. The parties asked if the Employer is obliged to pro-rate the hours worked in those situations where an FPT changes categories within a calendar year for the purposes of calculation overtime entitlement.

11As set out at paragraph 3(a) of Appendix 32, there are two categories of FPT. Category 1 FPTs work a minimum of 1000 hours and Category 2 FPTs work a minimum of 1500 hours.

12In order to understand the issue at hand it must also be recalled that overtime payments are paid to FPTs within two months of the pay period in which it was earned those hours worked in excess of 36¼ in any given week. Overtime (not paid as the result of working in excess of 36¼ per week) is also paid to FPTs for hours worked in excess of one hundred and ten percent of their annual minimum hours.

13It was the Union’s position that the Employer should take the whole of the calendar year into account. In other words, calculations regarding hours worked should be done both at the time of category change as well as at the end of the year.

14The Employer stated it calculates entitlement to overtime (excluding weekly overtime) once annually and that is done at the end of each calendar year. The status or category on the employee on the final day of the calendar year “crystallizes” their entitlement.

15Although there was some initial confusion as to how the Employer is dealing with FPTs who move from one category to another within a calendar year, the Employer provided a number of examples that were helpful.

16If an FPT worked at Category 2 (1500 hours) for the first half of a calendar year and worked 850 hours and then switched to Category 1 (1000 hours) working 650 hours in the final six months, she would have worked a total of 1500 hours for the full year. Because her status is Category 1 on December 31st of the year, the calculation of overtime is done on the basis that her minimum hours (for the entire year) were 1000. Therefore, assuming that no overtime was paid out for hours worked in excess of weekly hours and applying the ten percent “overage hours”, there would be 400 hours of overtime to be paid.

17If that example is reversed and the FPT worked 650 hours as a Category 1 for the first half of the year and 850 hours in Category 2 from July through December, no hours of overtime would be owing because the FPT worked 1500 hours in total and her minimum number of hours are 1500 as of December 31st of that year.

18The Employer also disclosed that even if the category of an FPT changed more than two times per year, the reconciliation of total hours worked would be done on December 31st and would be based on the category of the FPT as of that date.

19It was the Union’s contention that the most fair and equitable method of calculating the overtime hours would be to prorate their hours at the time of any and all Category changes.

20The Employer asserted that their present method is correct. It was noted that Paragraph 3 (e) of Appendix 32 of the Collective Agreement contemplates “calculations for the purposes of determining additional compensation in accordance with this section will be based on the calendar year the hours were worked and be done at the end of the averaging period”. It was urged that the calculation of the number of hours worked in a calendar year can only be done once the calendar year has concluded. Further, it was suggested that by and large this method of calculation is to the FPTs benefit. Even in those instances when an FPT is in the lower category at the end of the calendar year, in all likelihood they would have worked more hours in the calendar year, thereby earning more overall compensation, because they had been at the higher minimum number of hours at some point in the year.

21By way of reply, the Union stated that FPTs would be reluctant to move up to Category 2 toward the end of any calendar year if they were going to be disadvantaged with respect to their overtime entitlement.

22While I appreciate the Union’s reply comments, I am of the view that the Employer has not violated the Collective Agreement in its method of calculating overtime entitlement. I agree that in order to determine the hours worked in a calendar year is a task to be done at the end of the calendar year once all of the hours have been worked. There is no obligation to prorate or to undertake this calculation at the time of each Category change. As suggested by the Employer, this method probably benefits as many or more employees than those that are disadvantaged.

23There was no dispute between the parties that the Employer has never assigned an FPT to change categories. That is to say that there has been no instance when the Employer obliged a Category 1 to move into Category 2. In my view, this information was useful in terms of establishing that the Employer is not manipulating the hours of work of FPTs in such a way so as to decrease its overtime obligations.

24As I understand it, a Category 1 FPT has the opportunity of becoming a Category 2 FPT when such a vacancy occurs. They might apply for a position or have responded to a request for an expression of interest. Presumably a Category 1 FPT would take various factors into account in deciding to request such a move. It seems to me that one of the major attractions of such a move is an increase by fifty percent in the minimum hours and therefore a significant increase in compensation. Further, they might take into account what such a move would do to their accumulating hours as they relate to overtime calculations. If they think they are going to be disadvantaged, they can opt not to change categories.

25Finally, article 4(c) of Appendix 32 references proration. Clearly there were instances when the parties agreed to prorate hours and I am of the view that if the parties intended to prorate hours for the purposes of overtime calculation they could have and would have done so.

26For those reasons, I am of the view that the Employer’s view of this question is correct.

27The second question posed on this hearing day was somewhat similar. The issue is whether an FPT who holds a position other than FPT (that is, a Regular Part Time or Full Time position) during the calendar year is entitled to a proration of their hours. It was the Union’s contention that in those cases where an employee’s status as an FPT began or concluded in a calendar year their hours should be prorated for the purposes of determining overtime calculation. The answer to this question is no for the same reasons set out above.