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Briggs Vice-Chair FOR THE UNION Don Eady Paliare Roland Rosenberg Rothstein LLP Counsel FOR THE EMPLOYER Brian Loewen Ministry of Government Services Labour Practice Group Counsel HEARING February 4, 2011. Decision [1] On October 7, 2009, Barry Thomas, then Labour Management Liaison, sent a memorandum to all Adult Institutions that stated: This memorandum will clarify that the Provincial Overtime Protocol guidelines need to be followed whenever overtime opportunities are being offered to Fixed-Term employees. Please be advised that until directed otherwise by the Assistant Deputy Minister’s office, under no circumstances should grievances submitted by Fixed-Term employees regarding “missed overtime opportunities” be entertained during a local mediation/arbitration process. Furthermore, such grievances should not be settled at Stage 1 and/or 2 of the grievance process. [2] On November 5, 2009, the Union filed a grievance that alleged “the Employer has violated specifically but not exclusively, Articles 2, 3 and 31 of the Collective Agreement as well as MERC agreements, in regards to the refusing to properly compensate staff for demonstrated violations of the HPRO System.” [3] At our first day of hearing, the Union asserted that the Employer has violated the terms of the HPRO Protocol by failing to compensate Fixed-Term employees in instances when the Protocol has been violated. Further, the Employer is estopped from failing to pay remedial compensation to Fixed-Term employees for such breaches of the protocol. It was conceded by Mr. Eady, for the Union, that it was possible that not every correctional institution had been paying for protocol breaches to Fixed-Term employees. However, the past practice was sufficient to establish an estoppel. [4] Mr. Loewen, for the Employer contended that according to the clear terms of the Collective Agreement, Fixed-Term employees are not entitled to be paid for a breach of the overtime protocol. While it might be true that some institutions had improperly paid for breaches of the overtime protocol to Fixed-Term employees, those few past errors should not be sufficient for a finding of estoppel. [5] For obvious reasons neither party was eager to undertake calling evidence from across the Province regarding this matter. Accordingly, a process for collecting data regarding the past practice of payment for breaches of HPRO for Fixed-Term employees was agreed upon. The hearing was adjourned on that basis. [6] The collected data was not as immediately helpful as was hoped by the parties. For that reason, the parties agreed to bifurcate the hearing and ask this Board to determine whether the Employer is obliged to pay Fixed-Term employees for breaches of the HPRO based on the language of the Collective Agreement and various other documents. [7] To be clear, the Union will only present its estoppel evidence and argument only in the event it becomes necessary to do so. [8] A number of documents were put before the Board on consent. [9] On July 27, 2006, the first Provincial Overtime Protocol was agreed upon. It is useful to set out portions of that agreement. It stated, in part: INTRODUCTION At the present time, there are a variety of practices amongst institutions with respect to the distribution of overtime. In order to streamline the assortment of existing practices, the Ministry and the Union have developed this set of principles, which must be applied in the development of a local overtime distribution system. As per the Collective Agreement (COR8), a local overtime distribution system must distribute overtime fairly and equitably after having ensured that all operational requirements are met. PURPOSE The overtime Protocol has been developed with the intent to: • distribute overtime opportunities in a fair, equitable and consistent manner • ensure the process is administratively and operationally feasible, and • ensure the process is open and transparent. GUIDING PRINCPLES The local worksite overtime protocol must be founded in the following principles: A Fair and Equitable System The underlying principle of a fair and equitable system is to attempt to equalize the opportunity for overtime hours over a specific and reasonable period of time. The goal is to distribute the overtime opportunities amongst all eligible employees fairly. The goal is not to ensure that all employees work the same number of hours, given that individual choice and circumstance may restrict actual overtime hours worked. Decision to Hire Overtime Once a decision is made to hire overtime, the following overtime procedures shall be followed: 1. Classified correctional staff may opt in or out of voluntary overtime and will input their availability by day and by shift by the 15^th of the previous month. 2. A daily overtime list will be used by shift managers who hire overtime. Staff may remove themselves from the availability list for a given shift no later than 48 hours prior to the commencement of that shift. Staff may add themselves to the availability list for a given shift no later than 24 hours prior to the commencement of that shift, however they will be placed at the bottom of the availability list for possible overtime opportunities for that shift. 3. It is the responsibility of each employee to provide the employer with a single current phone number where he/she can be contacted. 4. Overtime calls will be made on a sequential basis. The first person called will be the most senior person on the overtime list having the least number of overtime opportunity hours. Unclassified Employees 1. Unclassified employees shall only be offered overtime opportunities after all classified employees who have signed the overtime roster have been exhausted. 2. When an unclassified employee, who has been prescheduled for forty hours in a week, is offered an overtime opportunity as per (1) above, this will not result in the cancellation of a subsequent prescheduled shift. [10] The parties sent out a “1^st Edition” of “Questions and Answers with respect to the Provincial Overtime Protocol” dated October 6, 2006. The second question was “Who does this protocol apply to?” and the answer was “classified and unclassified correctional officers”. Question 10 of this document asked, “Is there a dispute mechanism?” The answer was, in part: The content of the Provincial Overtime Protocol in no way changes or diminishes an employee’s individual rights under Article 22 of the current Collective Agreement. However, any issues related to the interpretation and/or clarification of the actual signed Provincial Overtime Protocol Agreement should be placed in writing and forwarded to the Provincial Overtime Protocol Committee for review. [11] The parties negotiated an update of the Overtime Protocol and it was signed on June 5, 2009. There were a number of adjustments made to new protocol. However, the Introduction, Purpose and Guiding Principles as set out above were identical except the provision regarding “Decision to Hire Overtime”. It was amended as follows: To the extent possible, overtime opportunities will only be offered once the non-overtime Regular (classified) and non-overtime Fixed-Term (unclassified) resources have been exhausted, even if part of the shift becomes overtime. [12] The provision regarding Unclassified Employees was also the same except that the parties had agreed to change the title of “Unclassified Employees” to “Fixed-Term Employees.” [13] Following this Agreement the parties again published a Questions and Answers Sheet – now the 5^th Edition dated June 2009 – and it was noted that it “replaces all the previous Provincial Overtime Protocol Q & A’s”. The first question again made clear that “Regular (classified) and Fixed-Term (unclassified) correctional officers” were covered by the Agreement. It also stated in answer to the question regarding dispute mechanism, “the content of the Provincial Overtime Protocol in no way changes or diminishes an employee’s individual rights under Article 22 of the Collective Agreement.” [14] On October 29, 2009 the parties signed an amended Protocol. Again, the Introduction, Purpose and Guiding Principles (including the section regarding the “Decision to Hire Overtime” did not change. There was also no amendment to the portion of the Agreement entitled “Fixed-Term Employees” as set out above. [15] The final “Questions and Answers” provided to this Board was dated September 2008 and was the tenth edition. There was no caveat stating that the tenth edition replaced earlier editions. The first answer stated, in part: To further the point on hiring practices, there is no limitation on how far in advance Unclassified Correctional officers can be hired. As such, it is appropriate to utilize an Unclassified Correctional Officer for statutory hiring if the hiring does not breach the Overtime Protocol. [16] Article COR8 – Overtime of the Collective Agreement states, in part, the following: 8.1 The overtime rate for the purposes of this Agreement shall be one and one-half times the employee’s basic hourly rate. 8.2.1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met. 8.3.1 Employees in Schedules 3.7 and 4.7, who perform authorized work in excess of seven and one-quarter (7 ¼) hours or eight (8) hours as applicable, shall be paid at the overtime rate. [17] Article 31 –Fixed-Term Employees - states: The only terms of this Agreement that apply to employees who are not regular employees are those that are set out in Article 31A, 32, 33 and 34. [18] Article 31A.3 – Overtime provides: One and one-half 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) hours 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-quart (36 ¼) or forty (40) hours per week where employees do not have regularly scheduled work days. [19] In the list of “other applicable articles” that apply to Fixed-Term employees, COR8 is not noted. UNION SUBMISSIONS [20] The Union contended that the clear provisions of the various overtime protocols negotiated by the parties have consistently included Fixed-Term employees. If there was any doubt about this issue, the Question and Answer sheets that were also negotiated by the parties underscores the Union’s view. [21] Mr. Eady stated that the Union is not asserting that Article COR8 of the Collective Agreement applies to Fixed-Term employees. Articles 31A16.1 and 31A.16.2 set out those provisions of the Collective Agreement that apply and COR8 is not listed. However, it is the Union’s assertion that the Protocol itself provides the remedy at issue in this dispute. [22] The various Overtime Protocols negotiated by the parties provide a somewhat complicated process for the assignment of overtime for both Regular and Fixed-Term employees. It is absurd to suggest that a protocol that is rife with references to Fixed-Term Employees does not apply to them and that is what the Employer would have this Board find. Each protocol has provided that: Once all of the employees who indicated availability for a given shift have been called, the employer may offer the overtime to any employee in order to meet the operational requirements of the institution. The overtime protocol would then resume with the next available shift. [23] The Union submitted that this is not a complex issue. The parties negotiated a process for the assignment of overtime. In that system it is agreed that both Fixed-Term employees and Regular employees are covered. Finally it was agreed that no rights to file grievances are abridged by the Protocol. [24] The Union drew attention to some of the specific questions addressed by the parties in their publications. In some instances, there was no distinction made between Fixed-Term employees and Regular employees. For example, in the “second edition” it was stated that “any correction officers classified or unclassified new to the facility (new hires, transfers in, lateral transfers, job trades, etc) will enter the local overtime protocol with a starting balance that is equal to the average accepted overtime hours at that particular point in time.” That lack of distinction is telling and ultimately reveals that the parties intended that all Correctional Officers would have virtually identical terms and conditions regarding overtime, including access to a remedy in the event of a breach of the protocol. [25] The parties considered a number of situations where the rights of Fixed-Term employees and Regular employees might be at odds. Generally speaking, Regular employees have been given preference. However, that does not diminish the clearly stated rights of Fixed-Term employees to overtime. [26] Mr. Eady reviewed Re Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU – Union Grievance (May 8, 2001), GSB#0236/92 (Lee); and Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) & OPSEU (Union Grievance) (February 18, 2009), GSB#2004-3577 (Briggs). It was asserted that while both of these decisions contemplated appropriate remedy for breaches of the some version of the Provincial Overtime Protocol, neither distinguished in any way between the remedial rights of Regular employees and Fixed-Term employees. [27] Finally, the Union posed the question that if there was to be no remedy for Fixed-Term employees in the event of a breach of the protocol, why would the parties bother to establish a specific order for calling Correctional Officers in the first instance if there is not remedy for a breach. In the absence of a penalty for a breach, the Employer could assign overtime work to any Fixed-Term Correctional Officer and not take the time to follow a somewhat complicated procedure. EMPLOYER SUBMISSIONS [28] The Employer did not take issue with the Union’s review of the various versions of the Overtime Protocols or the Question and Answer publications. However, those documents do not provide the language necessary for the Union to prevail in this matter. To be clear, there is nothing in these agreements that address a remedy for a breach. [29] The language of the Collective Agreement has been consistent and without revision for years. If the Union were right that Fixed-Term employees were entitled to a remedy in the event of a breach of the Protocol, the parties would have changed the language of Article 31. They have not. [30] The Employer asserted that all it has agreed to in the Protocol is that there is a specific order to follow in the distribution of overtime and that it will be followed. However, there is nothing to say that in the event of a breach there will be a remedy for Fixed-Term employees. There is a reference to a dispute mechanism in the Protocol but nothing therein provides them with a remedy that there are not otherwise entitled to under the Collective Agreement. [31] Mr. Loewen conceded that the Board’s jurisprudence is clear that the appropriate remedy for a breach of the Overtime Protocol is compensatory and not in-kind. However, that remedy does not extend to Fixed-Term employees. [32] In the introduction of each version of the Protocol it is stated that “as per the Collective Agreement (Article COR8), a local overtime distribution system must distribute overtime fairly and equitably after having ensured that all operational requirements are met.” Article COR8 does not apply to Fixed-Term employees. The Collective Agreement must supersede all other rights and it provides no remedy for Fixed-Term employees with respect to overtime. [33] The Employer relied upon Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Carter et al) (July 25, 1988), GSB#2291/86 & 2292/86 (Knopf). UNION REPLY [34] By way of reply the Union noted that there is no provision in any version of the Overtime Protocol that sets out the remedy for a breach for any employee be they Regular or Fixed-Term. There is no remedial section. However, there is a very specific and global system for distribution and it must be equitable. [35] The Union urged that Article COR8 of the Collective Agreement merely provides for the right to a fair and equitable overtime system. It is not where the remedy is to be found for Fixed-Term employees. The Union contends that it is the Overtime Protocol that has been breached and if there was to be no remedy for a violation the parties could have and should have made that clear. They did not. Indeed, had the parties wanted to distinguish between the remedy for Fixed-Term employees and Regular employees that distinction would have been clearly articulated. It is not. [36] Finally, it was said that the Union did not negotiate a change to Article COR8 or Article 31of the Collective Agreement because it felt that the rights of Fixed-Term employees were more than adequately protected by the Overtime Protocol. DECISION [37] After consideration, I find that the Union’s view of this matter must prevail. [38] As suggested by the Employer, Regular and Fixed-Term employees are treated differently in the Provincial Overtime Protocol. Generally speaking, preference is given to Regular employees in the distribution of overtime. For example, Fixed-Term employees are only offered overtime once all of the eligible Regular employees have been considered. Notwithstanding that preferential treatment, there is nothing in the Protocol that distinguishes between Regular employees and Fixed-Term employees in the event of a violation. [39] I agree with the Union’s observation that while there is nothing that specifically provides for the appropriate remedy in the event of a breach of the Protocol for Fixed-Term employees, neither is there a provision for Regular employees. The only reference regarding how disputes are dealt with can be found in the Question and Answer documents wherein it is made clear that the Protocol “in no way changes or diminishes an employee’s individual rights under Article 22 of the current Collective Agreement.” (emphasis mine) [40] I am of the view that this statement underscores that any Correctional Officer, Regular and Fixed-Term alike, are entitled to have an alleged dispute under the Protocol heard and determined on its merits. Further, I can find nothing in the Protocol or the Collective Agreement that would fetter my right to order a remedy for only Fixed-Term employees if a violation occurred. It seems to me to be a simple yet fundamental labour relations concept that if groups of employees are to be treated differently, the differential treatment should be expressly specified. [41] The Employer urged this Board to find that while the Protocol contemplates a system of distributing overtime for both Regular and Fixed-Term employees; only Regular employees can seek enforcement of its terms. In large measure it relied upon the statement in the “Introduction” of the Protocol which states that “as per the Collective Agreement (Article COR8), a local overtime distribution system must distribute overtime fairly and equitably after having ensured that all operational requirements are met.” It was argued that because this section of the Collective Agreement does not apply to Fixed-Term employees they are not entitled to remedial enforcement of the Protocol. [42] I must disagree. I am of the view that the reference to the Article COR8 of the Collective Agreement in the Introduction section is merely to inform the reader that any local overtime distribution systems must – like COR8 – provide for overtime distribution on a fair and equitable basis after having ensured that operational requirements are met. Such an oblique reference to a provision in the Collective Agreement in the Introduction section cannot then override very specific and clear terms of the Protocol. [43] The Employer submitted that the Question and Answer documents do not give the Fixed-Term employees more status than they otherwise have under the Collective Agreement and Protocol. I understand that view although it is interesting that the Question and Answer sheets were agreed upon by the parties. In any event, I am at a loss as to why the Employer would agree time and time again in these communications that the Overtime Protocol applies to Fixed-Term employees if it was of the view that all it ever had to do was “try its best” to follow the Protocol without any penalty for failure to comply. [44] It is interesting to review the history of this protocol by way of the documentary evidence provided. In doing so I must note that I disagree with the Union’s characterization of the decision of Vice Chair Lee between these parties. The original protocol was a local overtime agreement at the Guelph Correctional Centre. According to the decision of Vice Chair Lee the Union filed a policy grievance that alleged a violation of COR8.02 and the Employer took the position that it had not violated any provision of the Collective Agreement or the overtime protocol. While not all of the protocol was reproduced in that decision, the preamble has a familiar ring. It stated, according to page 5 of that decision: The parties agree that the overtime policy is to ensure a fair and equitable distribution of overtime at the Guelph Correctional Centre, and is in keeping with Article COR8 of the Correctional Bargaining Unit Collective Agreement. [45] According to the first paragraph of Vice Chair Lee’s decision, the parties agreed at the time that the overtime protocol covered only Regular (then referred to as “classified”) employees. The decision begins: This case concerns a policy grievance date April 1, 1998, alleging that the employer was violating article Cor8.02 of the collective agreement at the Guelph Correctional Centre (GCC). In a med/arb. session that took place on January 30^th 2001, a significant number of issues were resolved with respect to the local agreement for Classified Correctional Officers. (emphasis mine) [46] A full reading of that decision makes apparent that the litigation was regarding only Classified Correctional Officers. [47] As noted above, the first Provincial Overtime Protocol was negotiated five years after the issuance of the Lee decision. While the reference to COR8 is still in the preamble, by all accounts the first Provincial Agreement covered Classified and Unclassified Correctional Officers. The COR8 reference is continued in every subsequent agreement. The fact that the reference is in every agreement, irrespective of the scope of the agreement buttresses my view that it is a general reference made regarding fairness and equity in the distribution of overtime and not a limitation as to who is entitled to a remedy in the event of a breach. [48] There may well be instances when parties agree to a system of overtime distribution that expressly disallows a remedy for a group of employees in instances of a breach. That is not the case before me and I am of the view that I cannot infer from the Collective Agreement or the Protocol that such a limitation exists. This is particularly true in this instance where there is one single Agreement for both Regular and Fixed-Term employees. Here, in the absence of any specific language regarding remedy, the Employer concedes that Regular employees are entitled to remedial relief. I simply cannot find there is none for Fixed-Term employees. [49] I understand from counsel that there is at least one further issue that is raised with this grievance for the Board to determine. Counsel should contact the Board to schedule a hearing date for a continuation in this matter. Date at Toronto this 15^th day of June 2011.31:["$","$L7b",null,{"caseData":{"id":198912,"body":"$7c","year":2011,"court":{"id":26,"name":"Grievance Settlement Board","slug":"ogsb","abbreviation":"OGSB"},"issues":[{"id":405150,"outcome":"granted — Fixed-Term employees are entitled to remedial relief","description":"Whether the Employer is obliged to pay Fixed-Term employees for breaches of the Provincial Overtime Protocol.","issue_index":0}],"judges":[],"source":"https://www.canlii.org/en/on/ongsb/doc/2011/2011canlii41857/2011canlii41857.html","lawyers":[],"parties":[{"id":25973,"name":"Ontario Public Service Employees Union","role":"applicant"},{"id":77271,"name":"The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)","role":"respondent"}],"summary":"The Union filed a grievance alleging the Employer violated the Collective Agreement and the Provincial Overtime Protocol by refusing to compensate Fixed-Term employees for missed overtime opportunities. 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