GSB#2010-3062

UNION#2011-0999-0003

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 Government Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

George Parris Ministry of Government Services Legal Services Branch Counsel

HEARING

September 19, 2011, February 2, October 1, 2012, November 18 & 19, 2013

Decision

1The Board is seized with a policy grievance dated February 22, 2011 filed with respect to the correctional bargaining unit which includes the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services (“Employer”). The parties agreed to initially deal with the grievance as it relates to one institution, the Vanier Centre for Women (“Vanier”). It was further agreed that in this decision the Board ought to restrict itself to determining the proper interpretation of the collective agreement, and that an estoppel argument the union has raised be deferred, along with remedial issues in the event the union is successful.

2Vanier employs Regular Full Time Correctional Officers (“RFT/CO”) as well as Fixed Term Correctional Officers (“FTE/CO”). FTE/COs may be utilized in two ways. A FTE/CO may be slotted in to the schedule held by a RFT/CO on a long-term absence. These officers were referred to as “slotted” FTE/COs. It was agreed between the parties that the dispute in the instant grievance does not relate to RFT/COs or slotted FTE/COs. The grievance is only about the overtime pay entitlement of FTE/COs who are not slotted. Reference in this decision to FTE/CO in the pages that follow is a reference to unslotted FTE/COs, unless otherwise specified.

3Article 31A.3.1 of the collective agreement reads:

31A.3.1 One and one half (1½) times the basic hourly rate shall be paid for authorized hours of work performed:

(a) In excess of seven and one quarter (7¾) or eight (8) hours per day, as applicable, where employees work a regular thirty-six and one-quarter (36¼) or (40) hour 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 quarter (36¼) or forth (40) hours per week where employees do not have regularly scheduled work days.

4The union’s contention is that a FTE/CO who fills in for a RFT/CO, and works in excess of the shift he/she took over due to a shift extension, is entitled to overtime rates for the excess hours under sub-section (b) of article 31A.1. The employer submits that sub-section (b) has no application to a FTE/CO because when filling in for a RFT/CO, a FTE/CO is not working “on a regularly scheduled work day”, within the meaning of sub-section (b). It is thus asserted that the FTE/CO must exceed the weekly threshold of hours set out in sub-section (d) to be entitled to overtime rates, because FTE/COs are “employees (who) do not have regularly scheduled work days” within the meaning of sub-section (d).

5Mr. Gregg Gray, a RFT/CO at Vanier since its opening in 2003, and on a temporary assignment as OPSEU Inclusions Officer, has held several union positions since joining the OPS in 1991, including Local Vice-President at Vanier. He confirmed that Vanier is a 24/7, year round operation. He testified that FTE/COs at Vanier are scheduled in several ways. First, a FTE/CO may be slotted in to fill in for a RFT/CO who is absent due to, for example, maternity or WCB leave. Second, a FTE/CO may be given a schedule in advance indicating what days and hours he/she is needed for work. Third, a FTE/CO may be told on short notice that he is needed for a particular shift. He referred to the compressed work week agreement (“CWWA”) negotiated by the parties with respect to Vanier, and testified that under the CWWA, a RFT/CO may work less than 40 hours some weeks, and more than 60 hours on others, but at the end of the period of the schedule the hours average to 40 a week.

6Mr. Gray referred to a local agreement in place at Vanier under which the employer has agreed to schedule FTE/COs two weeks in advance. This agreement titled “Agreed Scheduling Principles for FTE Employees”, provides that “schedules will be posted fifteen (15) days in advance with total hours available divided equally with total number of fixed term employees. These hours will be posted in advance and remaining hours will be distributed as they arise by availability and similar shifts”. Mr. Greg testified that as per the scheduling principles, FTE/COs would know their shifts and hours two weeks in advance, at least for the hours known in advance to be available. Other hours may be added as they become available to get the FTE/CO’s weekly hours to 40.

7In cross-examination, Mr. Gray agreed that the Scheduling principles agreement only applies to unslotted FTE/COs, and that the hours so scheduled are of short duration, arising as a result of RFT/CO absences. However, he added that due to shortage of RFT/COs at Vanier FTE/COs may be scheduled from time to time other than to backfill absences. As examples he gave staff training and community escorts. He agreed that with the exception of those occasional needs for escorts and training, if all RFT/COs are at work as per their schedules, no FTE/COs would be scheduled to work. Under questioning, Mr. Gray agreed that despite the employer’s undertaking to attempt to provide work schedules 15 days in advance, a FTE/CO may be called and offered hours with shorter notice.

8Mr. Gray testified that a FTE/CO, if available, normally gets 40 hours a week. Some do not offer availability, and may therefore work less. He agreed that RFT/COs and slotted FTE/COs rotate through various weekly hours like 60, 40, 36, and some weeks may not work at all. However, at the end of the schedule period their total hours, when divided by the number of weeks, average out to 40 a week. Mr. Gray agreed that a FTE/CO in contrast does not rotate through weeks with varying hours. They work up to 40 hours a week or less, and cannot work over 40 hours at straight time. A FTE/CO may fill in for different absent RFT/COs in a given shift. The number of hours worked would vary depending on the length of the shifts held by the RFT/CO being replaced. Mr. Gray agreed that in addition to taking over the hours of the absent RFT/CO, notice may be given the day before that the FTE/CO is required to work additional hours before or after the end of the shift he/she was taking over. Mr. Gray agreed that a FTE/CO may be doing any of the shifts with varying hours contained in the schedules depending on who he/she was filling in for, and that they would typically know those hours only 15 days in advance at best. Mr. Gray also agreed that even the hours and shifts scheduled 15 days in advance may change, for example, if the RFT/CO the FTE/CO was filling in for returns early from vacation or sick leave. Then the hours assigned to the FTE/CO may be removed even the day before the scheduled date. He also agreed that, although not pre-scheduled, a shift may be added during the course of the week, to bring a FTE/CO to 40 hours in that week.

9The employer’s only witness was Ms. Debbie Bell, Vanier’s Scheduling Manager. She described the scheduling process for RFT/COs at Vanier. Annually three alternate schedules are posted for each area. The RFT/CO`s vote by majority for a schedule for each area. Then the RFT/COs, by exercising their seniority, pick the areas/shifts of their preference. Once that is done, each RFT/CO is slotted to the particular schedule so chosen, and he/she would work the shifts as per that schedule for a period of one year.

10Asked how FTE/COs are scheduled, Ms. Bell testified that she starts by reviewing the back-filling required based on known absences. Those hours are distributed to all FTE/COs as equally as possible. In accordance with the scheduling principles, if possible, scheduling is done 15 calendar days in advance. She testified that these hours for FTE/COs result from absences of RFT/COs known by management 15 days in advance. She testified, however, that although FTE/COs are scheduled 15 days in advance, that schedule changes due to various reasons such as where a RFT/CO who had booked a day off cancels that and decides to work that day, a RFT/CO decides to return early from vacation, a RFT/CO who was off sick returns to work, or where scheduled training is cancelled. She testified that as a result the pool of hours available for FTE/COs “always fluctuates.” Ms. Bell testified that even during a work week a FTE/COs work day and hours may change. For example, the scheduled hours may be reduced if scheduled training is cancelled or a RFT/CO cancels a booked day off. Similarly, if a RFT/CO calls in sick, goes off early, or there is an emergency at Vanier, a FTE/CO may have hours added if his/her scheduled hours for the week are less than 40.

11Asked how shift extensions for FTE/COs happen, Ms. Bell replied that for various reasons extra hours become necessary. She would sometimes know of a need for extra hours in advance. At other times the need may arise the same day as where a scheduled CO reports to work but goes off early due to sickness or other personal emergency. When such hours become available she would review the FTE/CO schedule to determine who needs hours to get to 40 hours in that week. She would offer the available hours to one of those FTE/COs, who would complete his/her scheduled shift and continue working additional hours replacing the officer who had left early. Asked how consistent the work weeks of a FTE/CO are, Ms. Bell replied, “They probably never work the same schedule two weeks in a row”, and that their schedules always fluctuate. This happens because they are always backfilling someone. She stated that sometimes a FTE/CO may backfill two or three different RFT/CO in a given week, such as when staff training is going on. Ms. Bell testified that FTE/COs are expected to work 40 hours a week. However, they may work less than 40 hours some weeks. Some weeks they may work more than 40 hours, in which case the hours in excess of 40 are paid at overtime rates.

12In cross-examination, Ms. Bell reiterated that once the RFT/COs vote for a schedule and then individual officers use their seniority to select their preferred schedules and posts, they are slotted into those. She agreed that while all shifts available at Vanier are filled in this manner by RFT/COs, from time to time shifts scheduled become available and have to be backfilled. Backfilling may be by RFT/COs on overtime, or by FTE/COs.

13Ms. Bell agreed with union counsel that FTE/COs are scheduled in three ways. First, a FTE/CO may be assigned a line, i.e. Post and schedule, for up to 4 months, to backfill for a known absence. Such a FTE/CO is called “slotted”. Second, where the employer knows at least 15 days in advance of shifts becoming available, FTE/COs may be scheduled to backfill those shifts. Third, a FTC/CO may be scheduled to backfill a particular shift on short notice, which could be moment’s notice up to 15 days’ notice. This could happen for example where a RFT/CO calls in sick before a shift, takes compassionate or bereavement leave, or takes a lieu day off. In these instances the FTE/CO would be backfilling for a RFT/CO or another FTE/CO who was supposed to do the particular shift. She agreed that when working shifts, FTE/COs are always backfilling for a RFT/CO, because under the CWWA all shifts are pre-scheduled “24/7 and 365 days a year” with RFT/COs.

14In re-direct, Ms. Bell testified that although she attempts to anticipate all operational needs and preschedule RFT/COs through the CWWA process for all required shifts, inevitably the need arises on a day to day basis for additional work such as staff training, meetings and community escorts. Those hours are assigned to FTE/COs who had been scheduled for less than 40 hours in the particular week. If no FTE/COs with less than 40 scheduled hours are available, the hours are assigned as overtime under the provisions of the overtime protocol. If overtime is needed, under that protocol the hours must first be offered to RFT/COs. Ms. Bell testified that when FTE/COs perform these additional hours due to training, meetings, escorts etc., they are “extra”, and not backfilling anyone.

Union submissions

15Union counsel framed the legal issue to be determined as “Whether FTE/COs at Vanier are entitled to overtime for shift extensions as they happen on the basis of their daily hours, or whether overtime for them is only if they exceed 40 hours in a week”. Counsel submitted that in answering that question, it is very significant that Vanier has a CWWA which pre-determines and fills all shifts required to staff the institution for a period of a year. He reviewed the evidence as to the process of RFT/COs selecting schedules for each area by vote, and choosing preferred shifts/posts by seniority. He pointed out that once that process is complete RFT/COs are scheduled for all available shifts, and each RFT/CO knows what his/her schedule will be for the next year. As counsel put it, “their schedules for the next year are engraved in stone in the CWWA”.

16While counsel commented in passing that in the circumstances some FTE/COs who do 7 or 8 hour shifts “may” also be entitled to overtime rates under sub-section (a) of article 31A.3.1, no specific submissions were made in that regard. His submissions were to the effect that when shift extensions occur, FTE/COs at Vanier are entitled to overtime pay under sub-section(b).

17Counsel reviewed the evidence that unslotted FTE/COs may be scheduled 15 days in advance or may be assigned work on short notice. He emphasized that the common feature under both methods is that FTE/COs are always backfilling for a RFT/CO for a shift with set hours which had been pre-scheduled and fixed by a CWWA. It was his submission that when a FTE/CO is assigned to backfill, for example, such a fixed 12 hour shift, and then works an additional 4 hours at the end of that shift, he/she is working “in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight hours” within the meaning of sub-section (b).

18Counsel distinguished the Board’s decisions in OPSEU and Ministry of the Attorney General, 0683/99 (Abramsky), (“Re MAG”), Re Ontario Science Centre, 2007-2412 (Dissanayake), and Re MacLachlan, 2008-1533 (Petryshen), pointing out that due to the nature of the work the grievors in those cases were performing, their work hours fluctuated throughout the year. In Re Ontario Science Centre, the Science Centre did not have fixed hours of operation. The work hours of unclassified hosts varied on a day to day basis depending on what exhibits were on, the attendance on a given day, and even the weather. In Re MacLachlan, the grievor was a firefighting pilot. His hours fluctuated depending on the need to fight forest fires at any given time. In Re MAG, the work hours of the court clerks on any given day depended on what goes on in the particular court room. The Court rooms did not have fixed hours of operation. Unlike the FTC/COs here, the grievors in those cases were not performing pre-scheduled fixed shifts with known hours. They were assigned hours as the need arose for work. In contrast, in the “corrections world”, the need is on-going 24/7, 365 days a year. Correctional institutions are continuous operations.

19Counsel pointed out that RFT/COs and slotted FTE/COs are paid overtime under sub-section (b) when their scheduled shifts are extended. FTE/COs are denied equal treatment, although all COs, - RFT, slotted FTE and FTE, working on an extended shift are doing it for the same reason, namely backfilling for a pre-scheduled shift which has become available due to sickness, vacation or other absence. It was submitted that the differential treatment just does not make any sense.

20Counsel reviewed the purpose of overtime provisions, namely to balance the employer’s need to schedule employees effectively with the need for employees to know when they would be working, to allow them to plan their personal lives accordingly and to compensate them for the inconvenience if they are required to work additional hours. Counsel submitted that at Vanier the interests of the employer as well as employees are taken care of by the CWWA, which has “engraved in stone”, all shifts for all areas. Thus the employer as well as employees know well in advance what the scheduled shifts are for each area. Counsel pointed out that another purpose of overtime provisions is to discourage employers from regularly assigning additional hours. Counsel argued that the purposes of overtime provisions apply equally to RFT/COs as well as FTE/COs.

21The union relied on the decisions in Re OPSEU, 72/84 (E.B. Jolliffe) (“Jolliffe decision”) and Re OPSEU, 2180/90 (Simmons) (“Simmons decision”) both of which were concerned with overtime entitlement in corrections. In the Jolliffe decision, as part of a stated case the Board was called upon to answer several questions including Question 3 which was as follows: “where the employees in an institution regularly work more than 8 hours per day (for example, 10 or 12 hours per day) are the article 3 employees [now FTE/COs] entitled to overtime pay when they work beyond their scheduled hours and those scheduled hours exceed 8 in a day?” At pp. 14-15 the Board wrote:

Article 3.3(a) [now 31A.3.1(a)] and 3.3(b) [now 31A.3.1.(b)] address the issue of hours worked in excess of daily standards. The specific provisions of these two provisions differ in several ways and we must give effect to those differences. In particular, Article 3.3(a) makes provision for hours worked in excess of 7¼ or 8 hours per day, as applicable. The words, “as applicable”, amount to a recognition by the parties that different facilities in the public service operate on different schedules. It is significant in this connection that the qualifying clause makes use of the work where. This is one of the features distinguishing this clause from Article 3.3(b), which talks of employees who work a day in excess of 8 hours. Article 3.3(a) is to be interpreted as providing that an Article 3 employee who works more than 7¼ hours in a day in an institution where the normal work week is 36¼ hours, or more than 8 hours in a day in an institution where the normal work week is 40 hours, is to be compensated at the overtime rate with respect to the hours worked in excess of 7¼ or 8 hours on that day. Questions 1 and 2 must be answered, “yes”.

Article 3.3(b), unlike 3.3(a), makes specific reference to scheduled hours and regularly scheduled work day. It has already been noted that whether an employee’s hours are scheduled and whether he has regularly scheduled work days are questions of fact that cannot be answered except in the circumstances of a specific case. In the case of an Article 3 employee who does have scheduled hours and works on a regularly scheduled work day, the language of Article 3.3(b) is plain. To this extent, the answer to Question 3 must be “yes”.

22The union submits that the Board’s finding that question 3 must be answered in the affirmative supports its interpretation of subsection (b) of article 31A.3.1. The union contends that the Simmons decision has already interpreted sub-section (b). There, the union had filed a policy grievance alleging that the employer was violating article 3.4 (now article 31A.3.1) by “not paying the proper overtime wages to unclassified employees at the Elgin-Middlesex Detention Centre in London”. The terminology used in that decision written in 1991 is different than the present terminology. In order to comprehend the decision, it should be noted that the parties are in agreement, and the Board concurs, that the terms “classified”, “unclassified Type A” and “unclassified Type B”, are references to the present day “RFT/CO”, “slotted FTE/CO” and “unslotted FTE/CO” respectively. The facts considered by the Board included the following (pp. 3-5)

2. At all relevant times the Detention Centre employed approximately 122 classified correctional officers whose civil service classification is that of Correctional Officer 1 or Correctional Officer 2. These classified correctional officers worked at all relevant times pursuant to three separate and district shift schedules as follows:

(i) Approximately 54 classified correctional officers worked straight 8 hour per day, 40 hour per week shifts on a variety of rotating shifts;

(ii) Pursuant to a Compressed Work Week Agreement (the ‘CWWA’) between the Ministry and the Union made in accordance with Article 7 and 35 of the collective agreement, approximately 52 classified correctional officers worked 12 hour shifts (generally 60 hours in one week and 24 hours in the next week) on a 51 week rotation as set out in Appendix ‘A’, attached hereto;

(iii) Pursuant to the CWWA approximately 16 classified correctional officers assigned to the Young Offenders section of the Detention Centre worked mixed 8 and 12 hour shifts pursuant to a 16 week rotation as set out Appendix’B’ hereto.

3. The Detention Centre has a fluctuating number of unclassified employees whose equivalent civil service classification is that of Correctional Officer 1 and who work as correctional officers when classified correctional officers are absent from work. At the time of the grievance (i.e. October 30, 1990) there were approximately 32 of these unclassified employees employed by the Detention Centre.

4. At all relevant times there were 2 types of unclassified employees.

5. The first type of unclassified employee was employed under a limited term contract which contracts were generally made in response to the temporary, non-recurring vacancy of a classified correctional officer being off on maternity leave, long-term disability, etc… (hereinafter referred to as a ‘Type A’ employee). While employed in this matter Type A employees were slotted into the relevant schedule in the same manner as the classified correctional officer who they were replacing. Accordingly, the Type A employee could have been scheduled to work in any one of the three types of shift schedules referred to in paragraph 2 herein.

6. The second type of unclassified employee was also employed under a limited term contract which was generally of three or six months duration (hereinafter referred to as ‘Type B’ employee). These contracts provided for ‘authorized hours of work as required up to 40 hours per week’. Type B employees were used as fill-ins on an as-needed basis to cover short term intermittent absences of classified correctional officers due to staff training, illness, union leave, lieu days, bereavement leave, personal leave or absence, vacation, etc… Type B employees were generally contacted at their home by the Detention Centre and offered an opportunity to report for a shift and the amount of notice in this regard ranged from a few hours to 1, 2 or 3 days. In the event that the institution was able to contact the Type B employee and the Type B employee was available to work the relevant shift the Type B employee was advised to report for work for a specified number of hours, generally being either 8 hours or 12 hours depending on the shift of the absent classified correctional officer which needed to be filled.

7. On most occasions during the 5 month period before the grievance, Type B employees would consistently work 40 straight time hours per week over a period of time ranging from a number of weeks to a number of months.

8. The Ministry did not make overtime payments to Type A employees for hours worked in excess of 8 hours per day or 40 hours per work week in circumstances where the Type A employee was slotted into a 12 hour shift rotation (Appendix ‘A’ hereto) or a mixed 12 hour and 8 hour shift rotation (Appendix ‘B’ hereto) in the same manner as the classified correctional officer who they were replacing.

9. The Ministry did pay overtime to Type B employees for any hours worked by these employees in excess of 40 hours in a work week irrespective of whether the employees shifts during the relevant work week wee for 8 hours, 12 hours or both.

10. For a period of time from approximately the spring of 1989 to the end of July 1990 the Ministry did pay overtime to Type B employees for the last 4 hours of a shift when they were called to fill in for and worked a 12 hour shift. Subsequent to July 27, 1990 the Ministry ceased paying overtime to Type B employees when they were called to fill in for and worked a 12 hour shift unless or until an employee’s hours of work exceeded 40 in the relevant work week.

At p. 7 the Board stated:

As we understand the matter, there are the unclassified employees who are referred to as “Type A” employees who are assigned to replace classified employees who are on what may be termed a somewhat lengthy leave. These employees are slotted into the relevant schedule in the same manner as the classified correctional officers would be if they were at work. The second type of unclassified employee, referred to as a Type “B” are those employees who fill in on an as-needed basis to cover short term intermittent absences. They likewise are slotted onto the relevant schedule of the absent classified employee.

At pp. 8-9 the Board concluded as follows:

The narrow question that is before us is –is an unclassified employee who is slotted into a classified employee`s work schedule of 12 hours entitled to overtime pay for any hours worked in excess of eight? In our opinion, given the facts that are before us, we must answer that question in the negative. In our view, Article 3.4(b) gives a complete answer to the situation that is before us. It is acknowledged that Article 3.4 applies to the unclassified service. There are a variable number of instances where such employees are entitled to overtime. However, sub-clause (b) appears to fit the situation that is before us. What we have here is an unclassified employee who is assigned to work a regularly scheduled 12 hour shift. That shift is “a regularly scheduled work day exceeding eight (8) hours”. It is to be noted that 3.4(b) states that overtime is to be paid when the employee works “in excess of the scheduled hours” unlike (c) which says “In excess of the employee’s regularly scheduled work week”. In other words, we have in (b) unclassified employees who work on a regularly scheduled work day exceeding 8 hours (the classified employee’s work schedule) as replacements for those classified employees. Section 3.4(b) does not say that it is “the employee’ regularly scheduled work week” as appears in (c). Therefore, Article 3.4(b) applies and employees who are working on a regularly scheduled work day that is of 12 hours duration are not entitled to overtime unless they exceed the regularly scheduled hours of work for the day.

We are supported in this view by the fact that classified employees who are regularly scheduled to work for 12 hours in what is referred to as the compressed work week are not entitled to overtime for the hours worked in excess of eight.

Therefore, for the foregoing reasons, it is the Board’s decision that the Employer is not in violation of the collective agreement and the grievance is dismissed.

23Counsel for the union submitted that the Jolliffe and Simmons decisions, both of which involved the corrections work environment, clearly support the union’s interpretation of subsection (b). In Re MAG, Re Ontario Science Centre, and Re MacLachlan, due to the very nature of the work, the work hours for the employees varied day to day. The workplaces did not have fixed and predictable operating hours. Thus in those circumstances the Board concluded that the employees were not working “on a regularly scheduled work day”. In contrast, at Vanier all work days were regularly scheduled and fixed in the CWWA. With very few exceptions, when FTE/COs worked, they were filling in for these fixed and predictable shifts. Since all work was regularly scheduled, they were working on “regularly scheduled” work days within the meaning of sub-section (b) as correctly interpreted by Vice-Chair Simmons. Any exceptions when FTE/CO worked as other than to fill-in for regularly scheduled work days, such as training and community escorts, submitted counsel, were negligible.

24The union submitted that the Simmons decision is well reasoned and not manifestly wrong and ought to be followed. Counsel argued that its interpretation should be preferred anyway because it is more consistent with the purposes of overtime provisions and is more equitable since it avoids differential treatment of FTE/COs.

Employer submissions

25Counsel for the employer submitted that a consideration of the purpose of overtime provisions does not support the union’s position. Overtime rates are required for the purpose of compensating an employee for the inconvenience he/she suffers as a result of having to work hours in excess of his/her regularly scheduled hours. Therefore, overtime is always based on the circumstances of the employee, and it is very logical that entitlement to overtime is only where the particular employee had regularly scheduled work days. It is only in such circumstances that an employee would have an expectancy of what his/her work hours and days would be. Where there are no predictable work hours, an employee’s personal life would not be disrupted by the extension of the work hours.

26Counsel argued that in the Simmons decision the Board’s comments at pp. 8-9 relied upon by the union appear to be only about “slotted” FTE/COs. It was pointed out that in describing the question before the Board, Vice-Chair Simmons refers to “an unclassified employee who is slotted into a classified employee’s work schedule of 12 hours”. The FTE/COs in the instant case are not slotted into a RFT/CO’s work schedule, but are assigned hours only on an as needed basis.

27Counsel argued that the language in sub-section (b) “employees who work on a regularly scheduled work day” is not a reference to the workplace having regularly scheduled work days. The employee must be working on a work day regularly scheduled for him/her. An employee who has no regularly scheduled work days, is not entitled to overtime under sub-section (b) merely because he/she works on someone else’s regularly scheduled work day. Counsel acknowledged that unlike in cases such as Re Ontario Science Centre, Re MacLachlan and Re MAG, Vanier is a continuous operation and pre-schedules on a yearly basis. However, he pointed out that the CWWA which “engraves in stone” all available shifts and hours, only applies to RFT/COs. No shifts are assigned to FTE/COs under the CWWA, who are utilized only as needed. While RFT/COs have regularly scheduled work days engraved in stone under the CWWA, FTE/COs have no regularly scheduled work days. They do not even have a guarantee of 40 hours a week. They do not have predictable work days because their hours can fluctuate week to week and day to day. Therefore, there is no deviation from a predictable set of hours per day which would cause disruption of their personal plans, so as to justify overtime pay.

28Counsel pointed out that even the initial scheduling of FTE/COs 15 days in advance is only tentative. The employer has undertaken only to schedule the available hours known at the time. The evidence is that the hours scheduled 15 days in advance change depending on a number of factors. More shifts may be added if a need arises. A shift scheduled 15 days in advance may be removed from a FTE/CO, for example, if the absentee returns from sick leave or training is cancelled. Moreover, Ms. Bell testified that a FTE/CO may be scheduled to work filling in for two or three different RFT/COs, particularly when training is on-going.

29Counsel for the employer submitted that FTE/COs are mostly “sitting at home waiting for work hours”. The union is seeking equal treatment for them in relation to overtime entitlement as compared to RFT/COs, who have shifts and hours fixed under a CWWA. Counsel submitted that if all RFT/COs attend work as scheduled, FTE/COs would have no hours, except perhaps for the occasional need for community escorts and training. However, there is recognition that RFT/CO absences are inevitable. If RFT/COs are utilized to fill-in for other absent RFT/COs, that would result in overtime. The FTE/COs are employed as a resource to avoid incurring overtime when RFT/COs are absent. Counsel suggested that was one of the primary reasons for having a roster of FTE/COs to be used as needed.

30Counsel for the employer submitted that even if the Simmons decision is interpreted as relevant to unslotted FTE/COs as the union suggests, it is in conflict with the decisions in Re Ontario Science Centre, Re MacLachlan and Re MAG. These decisions are consistent with the employer’s interpretation that for sub-section (b) to apply, the employee must have regularly scheduled work days on an on-going basis. Therefore, the proper interpretation is still an open question at best.

31In reply, union counsel pointed out that at p. 17 Vice-Chair Simmons, in setting out his understanding, describes both Type A and Type B unclassified employees as “slotted” into the absent employee’s schedule. Therefore, the reference to “an unclassified employee who is slotted into a classified employee’s work schedule” in describing the question before the Board, is a reference to both types of unclassified employees. It is not restricted to Type A only.

32Counsel argued that since all shifts and hours associated with every shift at Vanier are fixed by the CWWA, when a FTE/CO is assigned a particular shift, the hours associated with that shift are known and predictable. Thus the FTE/CO has an expectation that those would be his/her hours on that shift. When the shift is extended beyond the expected and known hours, it results in inconvenience. Therefore, it is consistent with the purpose of overtime provisions.

33Counsel suggested that the facts before Vice-Chair Abramsky in Re MAG, (supra) were akin to the facts in cases such as Re Ontario Science Centre and Re MacLachlan. They turn on the Board’s finding that due to the nature of the work itself the work day at the workplace fluctuated. When work would start and/or end on a given day was not predictable in those cases. In contrast, in the present case the CWWA has fixed the shifts, the hours and the start/end times of the shifts. That, submitted counsel, is what distinguishes this case from the decisions relied on by the employer. He suggested that none of those decisions rejected the Jolliffe and Simmons decisions. They turned on the evidence that due to the unpredictable nature of the work itself, the employees had no regularly scheduled work days.

34Counsel submitted that the union’s position is not based solely on the fact that Vanier has regularly scheduled work days and hours. It is also relying on the fact that when a FTE/CO fills in for a RFT/CO, he/she is working on a regularly scheduled shift with set hours. The employee who holds that shift on the particular day is doing a regularly scheduled shift. That attracts the application of sub-section (b).

CONCLUSION

35The issue for determination by the Board is whether an unslotted FTE/CO who fills in for an absentee RFT/CO, and performs a shift the latter held under the CWWA, works “in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours”, when he/she is required to work beyond the hours of that shift. For article 31.A.3.1(b) to apply two conditions must be met. First, the employee must work in excess of the scheduled hours. In the instant case since every shift to be performed at Vanier is set out in the CWWA with a designated number of hours, if there is a shift extension the employee would be working “in excess of the scheduled hours”, and the first condition would be met.

36The second condition for sub-section (b) to apply is that the employee must be one who “works on a regularly scheduled work day exceeding eight hours.” The parties disagree on whether or not this condition is met when a FTE/CO fills in for a regularly scheduled shift exceeding 8 hours held by a RFT/CO. The evidence is clear, and the union did to argue otherwise, that FTE/COs themselves do not have regularly scheduled work days at Vanier. They do not participate in the CWWA scheduling process and do not have shifts assigned to them under the CWWA. Only some of the anticipated work hours are scheduled for FTE/COs fifteen days in advance, and even that only to the extent possible. The evidence is that this scheduling is only tentative and the hours so scheduled are often increased or decreased based on the employer’s needs on a given day. FTE/COs may be assigned up to 40 hours a week, but are not guaranteed any hours. The evidence is that subject to very minimal exceptions, their work is almost exclusively as fill-ins for absences of RFT/COs, and the extent of those absences, and when they may arise is unpredictable. They are utilized essentially as needed to fill in for RFT/COs, and their work hours change frequently on short notice.

37At the outset I find that the Jolliffe decision and the decision in Re Schmidt et al, 2000-0983 (Petryshen) are not of assistance deciding the issue before me. In the former case, which was relied upon by the union, Vice-Chair Jolliffe wrote at p. 15 “In the case of an article 3 employee who does have scheduled hours and works on a regularly scheduled work day, the language of article 3.3(b) is plain. To this extent the answer to question 3 must be “yes”. It is apparent that it was assumed by the Board that an article 3 employee has scheduled hours and that he works on a regularly scheduled work day, within the meaning of sub-section (b). There is no discussion about what those words mean or how the facts pertaining to the employee meets that meaning. This is explicitly acknowledged by Vice-Chair Jolliffe when he writes at p. 8:

Of course, we are being asked to answer these questions in the hypothetical. We are not in a position to determine as a matter of fact whether or in what circumstances Article 3 employees may have “scheduled hours” or may be “regularly scheduled to work”. Such a determination would have to be made on the facts of a particular case. Nonetheless the parties invite us by their question to interpret the provisions of Article 3.3 in the case of an hypothetical Article 3 employee who has “scheduled hours” or is “regularly scheduled”, and we can do so without determining in advance what would constitute such a schedule in any particular case.

(emphasis added)

38Likewise, in Re Schmidt, relied upon by the employer, the Board was not called upon to examine the manner in which the unclassified employees’ work was scheduled and to determine which overtime provision applies in the particular circumstances. Rather, the Board proceeded on the assumption that the facts fell within sub-section (d). Thus at p. 3, Vice-Chair Petryshen wrote: “Given the nature of the dispute, counsel determined that it was unnecessary to call oral evidence. For purposes of their submissions, counsel focused on the following fact situation which would be typical for an unclassified CO covered by article 31.3.1(d)”.

39The Simmons decision on the other hand, does interpret the meaning of article 3.4(b), and contrasts the language in that provision with the language in sub-section (c). He had the relevant facts as to how various types of correctional officers were scheduled. He contrasted classified COs (now RFT/COs) with unclassified COs (FTE/COs). He recognized that there were two types of unclassified COs, which he called “Type A employees” [now slotted FTE/COs] and “Type B employees” [now unslotted FTE/COs]. The manner in which each type was scheduled was reviewed. The facts before the Board in that case, and the interpretation dispute between the parties, were substantially the same as here.

40In framing the question before the Board, Vice-Chair Simmons wrote, “Is an unclassified employee who is slotted into a classified employee’s work schedule of 12 hours entitled to overtime pay for any hours worked in excess of eight”? In the instant matter, employer counsel relied on the words “slotted into a classified employee’s schedule”, to suggest that Vice-Chair was only addressing “type A” employees, that is “slotted FTE/COs” under the present collective agreement. That, in my view, is not a reasonable reading of the reasoning in that decision. Vice-Chair Simmons, in describing both the “Type A” and “Type B” unclassified employees, uses the word “slotted” to indicate that both types were filling in for a classified CO. Therefore, his use of the word “slotted” in describing the issue to be determined does not indicate that he was referring to only one type of unclassified employee. More importantly at p. 4, Vice-Chair Simmons explicitly notes that “At all relevant times there were 2 types of unclassified employees”, contrasts the two types, and labels them as “Type A” and “Type B”. Therefore, if he was referring to only one of the two types, it is reasonable to expect that he would use the term “Type A” or “Type B”. Instead, he uses the generic term “unclassified employee”, which he had recognized as including both types. Therefore, the reasonable reading is that when using the generic term, he intended to refer to both types of unclassified employees. In the Simmons case, the Board was directly called upon to interpret the language in what is now article 31A.3.1 (b). The Board contrasted the language in sub-section (c) which refers to “the employees’ regularly scheduled work week”, and the absence of the word “employees” in sub-section (b). The Board concluded that article 3.4(b) applies to employees who are working on a regularly scheduled work day, even though the employees themselves had no regularly scheduled work days.

41The next issue is whether the decisions relied upon by the employer, Re MAG, Re Ontario Science Centre, and Re MacLachlan have made an interpretation of article 31A.3.1(b) which is in conflict with the interpretation in the Simmons decision. To be more precise, do those decisions hold that for entitlement to overtime under sub-section (b), the employees must be working on a day which had been regularly scheduled for themselves. Upon a careful reading of those decisions, I have concluded that they do not address the specific dispute raised here. That is because, in each of those cases the dispute put before the Board by the parties was whether or not the employees had regularly scheduled work days. On the facts before it, in each case the Board concluded that the employees in question did not have regularly scheduled work days. The Board was not called upon to decide whether it would make a difference if the shifts had been regularly scheduled for the workplace.

42In Re MAG, the grievors were unclassified staff who primarily worked in assigned court rooms at the Hamilton Court House. The union asserted that the grievors were entitled to overtime under sub-section (b) and/or (c) of article 31.3.1. (now 31A.3.1.), while the employer took the position that their entitlement was governed by sub-section (d). The evidence was that while employees had a scheduled start time for their work day, there was no predictable finish time. As Vice-Chair Abramsky notes at p.5, the union’s submission was that “… the grievors, whose schedules were determined either a week or a day in advance, had “regularly scheduled work days” within the meaning of article 31.3.1(b) and the fact that their finishing time varied did not change that fact. “Regularly scheduled”, it submits, means scheduled in advance.” (emphasis added). The employer’s position was “that the grievors entitlement to overtime lies solely under article 31.3.1(d) because they “do not have regularly scheduled work days” since their finishing time varies with the end of the court day. A “regularly scheduled work day”, it submits, requires both a starting time and ending time. The fact that their ending time is uncertain, it submits, means that the grievors do not have specific “scheduled hours” under article 31.3.1(b) and do not have a “regularly scheduled work week”, under article 31.3.1(c)” (pp.6-7) (Emphasis added)

43In upholding the employer’s position, at pp. 10-11 the Board wrote:

The wording of Article 31.3.1(b) requires that overtime be paid for authorized hours of work performed “in excess of the scheduled hours for employees who work on a regularly scheduled work day exceeding eight (8) hours…” Consequently, to be entitled to overtime pay under this subsection, an employee must work in excess of their “scheduled hours” and must work “on a regularly scheduled work day exceeding eight (8) hours”. In this case, putting aside the question of whether this subsection only applies to shift workers who regularly work eight or more hours per day, there is a question about whether the grievor’s have “scheduled hours” within the meaning of Article 31.3.1(b).

The Union submits that they do have “scheduled hours” because when scheduled for a day, their hours are defined by the time the court is in session – the court’s hours plus either 15 to 30 minutes. In the Employer’s view, they do not have “schedule hours” because their ending time is unpredictable.

I conclude that grievors do not have “scheduled hours” within the meaning of Article 31.3.1(b). The problem with the Union’s argument is that the court’s hours –to which the grievor’s hours are tied – are not certain. They vary, and can change at any time if the court “goes down”. A case may settle or a witness may be unavailable. Accordingly, the court does not have specific, “scheduled hours”, and neither do the grievors. The court – and the grievors – have a specific starting time, but they do not have a specific ending time. To have “scheduled hours”, there must be both a specific starting and ending time. For this reason, the grievors do not have “scheduled hours” within the meaning of this overtime provision and it does not apply to them.

It is evident from the foregoing that the issue joined by the parties was whether or not the employees had regularly scheduled work days. There was no assertion that sub-section (b) applied because the workplace had scheduled work days.

44In Re Ontario Science Centre the union argued that sub-section (c) of article 31A.3.1 applied to the unclassified hosts, while the employer’s position was that they were governed by sub-section (d). It is immediately apparent that both provisions explicitly refer to “employees”. Sub-section (c) refers to “the employees’ regularly scheduled work week”. Sub-section (d) refers to “where employees do not have regularly scheduled work day”. The union took the position that the employees in question did have regularly scheduled work weeks and that subsection (c) applied. The employer argued that the employees did not have regularly scheduled work hours and that therefore subsection (d) governed. Therefore not surprisingly the issue the Board was required to decide was whether the employees did or did not have regularly scheduled work days. Sub-section (b) of article 31A.3.1 was not in any manner put before the Board for interpretation. Based on the evidence before it, the Board concluded that the employees in question did not have regularly scheduled work weeks, and that therefore, sub-section (d) and not sub-section (c) applied to them.

45In Re MacLachlan (supra) the dispute was about the grievor’s entitlement to compensating time off under article UN 8.7.1.b,(a) which provided that Schedule 6 employees who perform authorized work in excess of 7.25 hours “on a regularly scheduled work day” shall receive compensative leave for certain hours “worked during the week on regularly scheduled work days”. The disagreement between the parties was as to whether the grievor, a firefighting pilot, had regularly scheduled work days. Thus at para. 6 Vice-Chair Petryshen states that “the employer … argues that Mr. MacLachlan does not have a regularly scheduled work day”, and that the union “argues … that Mr. MacLachlan does have a regularly scheduled work day”. On the basis of the evidence before it, the Board concluded that the grievor did not have regularly scheduled work days and was not entitled to compensating time off. The point again is that the Board was not called upon to interpret the words “regularly scheduled work day”, whether it meant regularly scheduled for the work place or for the grievor himself. The Board’s task was only to make the factual determination whether the grievor himself had regularly scheduled work days. Therefore, the Board in Re MacLachlan, like in Re Ontario Science Centre, did not address the interpretation dispute raised in the instant proceeding.

46A review of the Re MAG, Re Ontario Science Centre and Re MacLachlan, decisions indicates that no assertion was made in any of them, as was done here, that even though the employees themselves had no regularly scheduled work days, they are nevertheless entitled to overtime under sub-section (b) because the workplace had fixed work days and the employees had therefore worked on regularly scheduled work days. It is not surprising that this argument was not advanced in those cases. It is clear from the evidence that the workplaces, due to the very nature of the work, did not have regularly scheduled work days. Therefore, the union attempted to establish, albeit unsuccessfully, that the employees themselves had regularly scheduled work days. This is highlighted in Re MAG where Vice-Chair Abramsky notes The problem with the unions argument is that the court’s hours – to which the grievor’s hours are tied – are not certain. They vary and can change at any time if the court “goes down”. A case may settle or a witness may be unavailable. Accordingly, the court does not have specific scheduled hours, and neither do the grievors”. (Emphasis added) In those cases, there was no evidentiary basis for the union to assert that the workplaces have regularly scheduled work days. Therefore, it made the argument that the employees themselves had regularly scheduled work days, and that satisfies the requirements of sub-section(b). However, in each case the Board held in essence that the employees` work days were dependent on the work available in the workplace, and that due to the nature of the work carried out by the workplace, the employees did not have regularly scheduled work days, any more than the workplaces did.

47It follows that the decisions in Re MAG, Re Ontario Science Centre, and Re MacLachlan do not make an interpretation of sub-section(b) which is inconsistent with the interpretation in the Simmons decision. The latter is the only decision brought to my attention which addressed directly whether sub-section (b) applies where employees perform a work day that had been regularly scheduled for the workplace, or whether it applies only where the individual employees themselves had regularly scheduled work days. Vice-Chair Simmons concluded that some of the sub-sections of the overtime provision contemplated that the employees themselves must have regularly scheduled work days or hours. When the parties intended that to be the case, they expressed that intention by using language such as in sub-section (c) which refers to “employees’ regularly scheduled work week”. He contrasted that with the language in sub-section (b) which refers to “a regularly scheduled work day” and not “employees regularly scheduled work day”. He gave effect to the different language the parties had used in two sub-sections of the same overtime article.

48The Simmons decision, and its interpretation of article 31A.3.1 is well reasoned. The Board gave effect to the intention of the parties as indicated by the use of different language in the various sub-sections of the same article. The Board does not find, and the employer did not suggest, that the decision is manifestly wrong. As reviewed above, the decision is not in conflict with other decisions of the Board. Therefore, there is no reason to depart from its interpretation. The evidence is that the majority of a FTE/COs shifts are scheduled 15 days in advance. Others are scheduled with shorter notice. With few exceptions, FTE/COs are scheduled exclusively to fill in for shifts held by RFT/CO. Thus, a FTE/CO, when scheduled for shift in advance or the day before, would be able to ascertain the duration of the shift he was filling in for, and its start/end times. He/she therefore takes over a shift with known and established hours. Therefore, if the shift hours are extended, it would cause inconvenience to the employee. Therefore, the interpretation, in the context of the facts at Vanier, is not inconsistent with the purposes of overtime as well.

49In the result, the Board concludes that an unslotted FTE/CO at Vanier is entitled to overtime pay under article 31A.3.1(b), when due to a shift extension, he/she works in excess of the hours of any scheduled shift exceeding 8 hours, he/she filled in for. The Board remains seized with the grievance to deal with any other issues the parties may decide to put before it.