GSB#2010-0753, 2010-0754, 2010-0755

UNION#2010-0542-0013, 2010-0542-0014, 2010-0542-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Miceli et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Robert Fredericks Ministry of Government Services Labour Practice Group Counsel

HEARING

October 17, 2011.

CONFERENCE CALL

November 24, 2011.

SUBMISSIONS

December 28, 2011.

Decision

1This decision is issued pursuant to article 22.16 of the collective agreement.

2Individual grievances filed by the grievors Frank Miceli, Shahzad Nazeer and Konstantines Pirovolakis came before the Board on October 17, 2011. Each of them had grieved that the employer had failed to pay call back pay as required by article UN 9.1. of the collective agreement.

3Following opening statements made at the hearing on October 17, 2011 and a further teleconference discussion with the vice-chair on November 24, 2011, the parties agreed that the Board should rule pursuant to article 22.16 on the application of article UN 9.1 to a certain set of assumed facts, and remain seized with the grievances. The parties were hopeful that it would enable a resolution of the grievances.

4Further to the foregoing agreement, a statement of “assumed/stipulated facts regarding preliminary interpretative issue” was subsequently filed. Based on those facts the parties submitted written submissions and case law in accordance with agreed upon timelines.

5For clarity, the statement concluded with para.21, which provides “The parties are agreed that the foregoing stipulated/assumed facts are without prejudice to any evidence either party may lead, should the matter proceed further than this interpretative stage”.

6From the statement presented, the Board understands the key facts to be as follows:

(a) The grievors do not have specific start/end times. They have the flexibility, on any given work day, of starting work anytime between 7:00 and 10:00 a.m. and to work 7:25 hours from the time of commencement, with an intervening lunch break. However, they are required to start and end shifts within the three hour windows designated by the employer, and to work 7:25 hours each day.

(b) Any deviation from the requirement to start and end work within the designated window of time is allowed only with the permission of management on a case by case basis. The grievors may occasionally work longer than 7:25 hours if they are in the process of incident resolution or change implementation. They are paid overtime for time worked outside of their regular working hours.

7The issue the parties put to the Board for determination is whether in the foregoing circumstances the grievors could be said to have a “next scheduled shift” within the meaning of article UN 9.1. In interpreting and applying the article to the assumed facts, it is appropriate to adopt a purposive approach. The purpose of call-back pay is two-fold. First, a call-back pay provision is designed to compensate employees for the inconvenience and disruption of their personal lives caused as a result of being called in to work. Second, call-back pay provisions are intended to discourage employers from requiring employees to report to work outside of their regularly scheduled shifts except where it is really necessary to do so.

8The Board has reviewed the submissions of the parties and the authorities relied upon. Having regard to the purpose of call-back provisions and the assumed facts presented by the parties, the Board would conclude that the grievors do have a next scheduled shift within the meaning of article UN 9.1.

9As requested, the matter is remitted back to the parties. The Board remains seized with the grievances.