GSB#2005-2333, 2005-2674, 2009-1604, 2010-2624
UNION#2005-0234-0257, 2005-0234-0354, 2009-0234-0116, 2010-0999-0033
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Gray et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Barry B. Fisher
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Stewart McMahon Ministry of Government Services Labour Practice Group Counsel
HEARING
September 12, 2011.
Decision
1This case involves the issue of shift premiums for certain shifts at the Vanier facility.
2There are two schedules that are relevant to this case:
06:45 to 19:15
18:45 to 7:15
3The shift is 12.5 hours long, however it includes a 30 minute unpaid lunch break, so the employee is paid for 12 hours.
4The issue here is whether the first 15 minutes and the last 15 minutes of these shifts entitle the employee to a Shift Premium under Article COR6.1.1, 6.1.2 and 6.1.3, which read as follows:
COR6 1.1 Effective March 27, 1999, an employee shall receive a shift premium of one dollar ($1.00) per hour for all hours worked between 5:00 p.m. and midnight. Where more than fifty percent (50%) of the hours worked fall within this time period, the one dollar ($1.00) per hour premium shall be paid for all hours worked.
COR6 1.2 Effective March 27, 1999, an employee shall receive a shift premium of one dollar and fifty cents ($1.50) per hour for all hours worked between midnight and 7:00 a.m. Where more then fifty percent (50%) of the hours worked fall within this time period, the one dollar and fifty cents ($1.50) per hour minimum shall be paid for all hours worked.
COR6 1.3 Effective June 24, 2005, a premium of three dollars ($3.00) per hour shall be paid for all hours that commence on or after seven o’clock p.m. Friday and end on or before seven o’clock a.m., Monday.
5It should be noted that the Union is seeking payment of the shift premium on a prorated basis, that is 30 minutes a day at the applicable rate.
6The Unions’ argument is simple. The employees are working for those two 15 minutes at the beginning and the end of the shift and thus are entitled to the shift premium on a prorated basis.
7The Ministry argues that the term “ $1.50 per hour for all hours worked “ requires that employees work a full hour of the shift premium period in order to be paid. In other words, there is no pro-rata provision.
8Under the Ministry interpretation, the following scenarios would occur:
If an employee was scheduled and worked for 55 minutes into the premium period, he or she would receive no shift premium.
If an employee was scheduled and worked for 1 hour and 55 minutes into a premium period, he or she would receive a shift premium for only one hour.
9The Ministry says that where the parties intended to deal with periods of less than one hour, they used different language to express themselves. For instance, in Article 8.2.3, Overtime, the parties used the term “ period of work’.
10I find that the Unions’ argument is more persuasive as it corresponds to the usual understanding of what people mean when they say “ $1.50 per hour for all hours worked”.
11Imagine if I were to offer you temporary employment and I tell you that I will pay you “ $20.00 per hour for all hours worked”. You work 5 hours and 30 minutes. Do I owe you $100 or $110?
12I do not imagine that there is a person in the world who would expect that the proper pay would be $100. People rarely agree to work for free.
13The reference to “all hours worked” is intended to differentiate between scheduled hours and worked hours. In other words if an employee was scheduled to work 15 minutes into a premium period but in fact did not work that period, then no shift premium would be payable.
14In other words, I find that the language used clearly includes the concept of pro rata payment and if the parties want to limit this provision to only full hours, then they would need to express that in clearer terms.
15The grievance is allowed. I remain seized of any issue involving remedy and the interpretation and application of this award.
Dated at Toronto this 14th day of November 2011.