GSB#2012-4596

UNION# 2013-0338-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bennett)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Mike Mously Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

HEARING

March 31, 2014

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”). Following the introduction of the flexible part time, many grievances were filed causing the parties to resolve outstanding differences and ultimately negotiating changes to various provisions of Appendix 32. Not surprisingly, these revised changes to the language of the Collective Agreement caused new grievances to be filed.

2In the period from January 2010 to December 2012, the parties engaged in an expedited process established to resolve hundreds of outstanding grievances. Those matters were litigated and decisions were issued in accordance with Article 22.16 of the Collective Agreement. This expedited process and resulting decisions answered virtually all of the disputes that arose regarding Appendix 32 although it was understood that from time to time new matters might need to be addressed. The grievances before the Board are regarding Appendix 32 and are regarding an issue not previously considered.

3Early in 2012 Ms. Cynthia Logsdail and Mr. Heamon Bennett each filed grievances regarding the recovery of deficit hours. The parties agreed that Mr. Bennett’s grievance would be heard first and that the decision should be issued in accordance with Article 22.16.

4Article 22.16.2 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.

5The facts were not in dispute. Mr. Bennett is in the 1500 hour flexible part time category. As set out in Appendix 32, Mr. Bennett is paid for 1500 hours each year.

6In accordance with the provision of Appendix 32, there is an annual reconciliation of hours undertaken for each FPT at the end of each calendar year to determine if there are any deficit hours.

7At the year end reconciliation done for Mr. Bennett for hours worked in 2012 it was determined that he owed 3.25 hours. There was no dispute that these hours were owing or, to be more clear, were deficit hours. The issue for this Board to determine is whether the Employer’s consistent practice of recovering those hours before any overtime is paid is a contravention of Appendix 32.

8In the pay period that spanned from January 7, 2013 to January 20, 2013, Mr. Bennett worked sixty eight and a half (68.5) hours. It was the Union’s position that Mr. Bennett worked his regular hours (which are 57.5 hours), worked a further seven and three quarter (7.75) hours (which would be considered the ten percent above his category that needs to be worked before overtime is paid) and a further three and a quarter (3.25) hours which should have been paid as overtime.

9It was the Employer’s view that the grievor worked his regular fifty-seven and a half (57.5) hours and an additional (11) eleven hours. The grievor owed three and a quarter (3.25) deficit hours – which were taken back from (or subtracted from) these eleven hours. Once those deficit hours were removed, the grievor had worked only seven and three quart (7.75) hours beyond his regular hours. This seven and three quarter (7.75) hours is exactly the “ten percent” overage hours to be worked before overtime rates apply and therefore the grievor did not work overtime hours. Accordingly, the Employer urged that the grievor was not entitled to overtime compensation during this pay period.

10Appendix 32 of the Collective Agreement states, in part:

3(c) For each annual hour category, each FPT employee will receive consistent bi-weekly pay based on the minimum weekly hours for their category. In addition pay for hours worked in excess of the minimum weekly hours up to 36.25 hours per week will be paid on the bi-weekly pay at the regular hourly rate. For clarity, all hours worked by employees regardless of pay rate, shall be counted as hours worked towards the accrual of minimum category hours.

(d) All authorized hours worked by flexible part-time employees in excess of 36 ¼ hours per week will be paid at the time and one half (1 ½) rate within two months of the pay period within which the overtime was actually worked.

(e) In addition to the minimum number of hours provided in an employee’s assigned annual hours category, any authorized hours worked up to ten percent (10%) above the employee’s assigned annual hours category (“overage hours”) will be paid at straight time rates. FPT employees will receive additional compensation at one-half (½) the employee’s straight time rate for authorized hours worked in excess of the assigned annual hours category plus 10 percent (10%) overage, less any hours already paid at the overtime rate per paragraph 3(d) above. For clarification, calculations for the purpose 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. For example:

• 1000 hour category FPT employee works a total of 1300 hours in a year;

• Of those 1300 hours, 100 (or 10% of 1000) are overage hours and therefore will have been paid at straight time rate;

• Of the remaining 200 hours, 70 were already paid at the overtime rates as they were hours worked in excess of 36 ¼ hours in a week per 3(d) above;

• Of the remaining 130 hours which were already paid at the straight time rate, the employee would receive an additional 50% of their hourly rate for those 130 hours.

(g) The employer will make reasonable efforts subject to operational feasibility to ensure employees are scheduled to work the minimum annual hours for their category. Where an employee does not work his/her minimum annual hours threshold, his/her deficit hours will be carried over to the next calendar year for recovery. Deficit hours will be recovered from any hours worked above the employee’s weekly threshold and before any hours in excess of the weekly minimum hours are paid.

(h) The parties further agree that these terms are independent of any entitlements individuals may have under Article 73.

11The Union suggested that this is a straightforward matter. Paragraphs 3(c) and 3(d) of Appendix 32 make it abundantly clear that if an FPT works more than the ten percent overage – those hours are to be paid at overtime rates. It is apparent that the parties intended that all hours worked beyond the ten percent overage are overtime hours and there is no provision that detracts from this clearly stated concept. Indeed, it makes no sense that the grievor would receive no overtime compensation for the hours at issue in the first full pay period in January and yet he would receive such overtime compensation if the same hours were worked in the next pay period. The Union relied on Re Ministry of Attorney General and OPSEU – McGann (June 12, 2009) GSB#2007-1773 (Gray).

12The Employer agreed that the matter is straightforward but urged a different result. It was contended that the Employer’s practice represents a reasonable application of Appendix 32. It was conceded that Article 3(d) sets out the payment of overtime but the Employer asserted that provision cannot apply when if deficit hours are owing. The application of this recovery creates a different situation. Article 3(g) overrides Article 3(d) and makes very clear that deficit hours will be “recovered from any hours worked above the employee’s weeks threshold and before any hours in excess of the weekly minimum hours are paid.” That is precisely what the Employer did in this instance. The Employer recovered 3.25 hours that were worked by the grievor in the January pay period and that reconciliation meant that the Mr. Bennett worked his regular hours plus a further ten percent. There were no overtime hours. It simply makes no sense that overtime hours would be paid out when deficit hours are still owing from the previous year.

13After considering the facts and submissions in this matter, I am of the view that this aspect of the grievance must fail. I agree with the Employer that paragraph 3(g) of Appendix 32 is clear and unambiguous. While I accept that generally overtime is paid as set out in Article 3(d), deficit hours are treated differently as set out in the clear and specific language of paragraph 3(g).

14The parties put their minds to how deficit hours would be recovered and they agreed that deficit hours are to be recovered “from any hours worked above the employee’s weekly threshold and before any hours in excess of the weekly minimum are paid”. In my view, the Employer’s practice is consistent with the provisions of paragraph 3(g). The Employer deducted the deficit hours from the very first hours that were worked by the grievor that were above his weekly threshold. In doing that, the number of overage hours were reduced to seven and three quarters and therefore no overtime was worked and no overtime was owing.

15Accordingly, this aspect of the grievance fails.

16It was agreed that I should remain seized in the event that other issues need to be address by the two grievances before me. The parties are to inform the Board if a further date need be scheduled.