GSB# 2015-2937; 2015-2938; 2015-2939; 2016-0011; 2016-0113; 2016-0114; 2016-0383; 2016-0384; 2016-2176; 2016-2177; 2016-2179

UNION# 2015-0430-0009; 2015-0430-0010; 2015-0430-0011; 2015-0430-0012; 2016-0430-0002; 2016-0430-0003; 2016-0430-0006; 2016-0430-0007; 2016-0430-0009; 2016-0430-0010; 2016-0430-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (James et al)

Union

• and -

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

Employer

BEFORE

D.J.D. Leighton

Arbitrator

FOR THE UNION

Frank Inglis Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Cathy Phan Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

September 20, 2016 and March 8, 2017

DECISION

1A group grievance (James, et al) was filed on behalf of several grievors, Customer Care Specialists (CSR 3) in the Ministry of Government and Consumer Services, on December 3, 2015. Subsequent grievances were filed by employees of the same group in the Eastern Contact Centre on various dates in 2016. The parties agreed to consolidate these grievances on March 8, 2017. The grievances claim that the employer has violated the collective agreement, specifically Article UN 6, by not paying the shift premium provided when employees work a regular schedule, which includes the hours of 5:00 p.m. to 7:00 a.m.

2The union submitted that the grievors were at times regularly scheduled to work shifts including the hours between 5:00 p.m. and 11:00 p.m. and therefore should have received the premium pay. A shift from 11:00 a.m. to 7:00 p.m. attracts premium pay for the hours of 5:00 p.m. to 7:00 p.m., in the union’s view. Until 2015, the employer had always paid the shift premium to those who were scheduled to work beyond 5:00 p.m.

3The union stated further that the employer changed a 30-year-old practice, and began to deny the shift premium, applying a new policy that to be eligible for the premium, 50% of an employee’s scheduled shifts in a month must end after 5 pm. The union’s position is that the collective agreement and the jurisprudence of the Board support a finding that the premium is owing to employees who were scheduled to work after 5:00 p.m. and seeks an order for premium pay owing to each grievor with interest.

4The employer stated that premium pay is for employees that regularly work during the hours after 5:00 p.m. These hours have been recognized as generally undesirable and therefore attract shift premium. However, the employer argued that the new 50% rule is reasonable to determine eligibility for the premium pay, and asks that the grievances be dismissed.

5The parties referred these grievances to mediation/arbitration in accordance with Article 22.16 of the collective agreement. At the outset of the hearing, the parties agreed that I had the jurisdiction to deal with this matter and asked that I issue a decision without precedent or prejudice, and without written reasons.

6Having carefully considered the submissions of the parties, as well as the jurisprudence of the Board, I have decided to grant these grievances. I find that the employer’s application of a new threshold of requiring 50% of an employee’s scheduled shifts to be in the premium zone, before any premium is paid, is inconsistent with the language of the collective agreement. The language in UN 6.1 clearly provides that “an employee shall receive a shift premium…for all hours worked between 5:00 p.m. and 7:00 a.m.” For the sake of clarity, hours worked after 5:00 p.m. as an extension of a shift, normally ending at 5:00 p.m., shall not be eligible for shift premium.

7Consequently, I hereby order the employer to pay the grievors premium pay for all hours worked after 5:00 p.m. in a regularly scheduled shift, with interest, to be paid as provided in Article 22.18.1. I shall remain seized to deal with any issues between the parties relating to implementation of this award.