GSB#2018-0266; 2018-0267; 2018-0268; 2018-0269; 2018-0355

UNION#2018-0478-0002; 2018-0478-0003; 2018-0478-0004;

2018-0478-0005; 2018-0456-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Boisvert et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Gregory Ko Kastner Law Counsel

FOR THE EMPLOYER

Kevin Dorgan Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 11, 2018

DECISION

1This decision addresses two group grievances by Classroom Assistants working in two provincially-operated special needs schools: Centre Jules Léger in Ottawa, and Sir James Whitney School for the Deaf in Belleville. The grievances are identically worded and state that:

The employer is in violation of the collective agreement. I’m a schedule 4 employee but the employer has limited my hours of work from 40 hours per week to 36 and ¼ a week. The C.A. is clear that all schedule 4 employees are entitled to 40 hours per week. Therefore, I’ve been denied 7 ½ hours biweekly and loss of earnings as a result of this violation.

2This matter was heard under Article 22.16 of the collective agreement.

3The Employer contends that the Union has not made out a prima facie case and brings a motion for dismissal of the grievances.

4The Employer’s motion can succeed only if the facts asserted in support of the grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged: OPSEU (Couture) v. The Crown in Right of Ontario (Ministry of Government Services) GSB# 2008-3329 (2010).

5The Employer accepts the facts as alleged in the Union’s Statement of Particulars, including that: (1) the Employer has scheduled and intends to continue the schedule the grievors to only 36 ¼ hours per week, and has compensated them and intends to continue to compensate them accordingly; and (2) at the W. Ross MacDonald School for the Blind in Brantford the Employer has scheduled Classroom Assistants to 40 hours per week and compensated them accordingly.

Arguments of the Parties

6The Employer submits that: (1) Classroom Assistants are seasonal employees within the meaning of Article 1 of the collective agreement; (2) seasonal employees are fixed term employees for the purposes of the agreement; (3) Article 31 of the agreement lists the articles that apply to fixed term employees; (4) among those articles only Article 32 applies to seasonal employees; (5) Article 32 does not define normal hours of work or a regular working period for seasonal employees; (6) Article 32.21 lists additional articles that apply to seasonal employees; (7) neither the list in Article 31 nor the list in Article 32.21 includes Article UN 2, which deals with normal hours of work for Schedule 4 employees; (8) the mere writing of a 4 in the line of the Salary Schedule setting out pay rates for Classroom Assistants cannot create an entitlement to a minimum of 40 hours of work per week; (9) the Salary Schedule simply provides a salary grid associated with the Classroom Assistant position; (10) in Ontario Public Service Employees Union (McGann) and The Crown in Right of Ontario (Ministry of the Attorney General) GSB # 0789/98, 1080/98, 1252/98, 1253/98, 1620/98, 2005/98, 1440/00 (2001), Arbitrator Daniel Harris found that references to Hours of Work Schedule numbers in the Salary Schedule served to identify the threshold after which overtime would become payable, and rejected essentially the same argument that the Union is making on behalf of the grievors in this case; (11) normal hours and overtime thresholds of Classroom Assistants are to be found in their individual contracts of employment, given that the collective agreement does not set them; and (12) when it comes to a monetary benefit such as minimum hours entitlements the onus is on the union to show that the Employer has agreed in clear and unequivocal terms and not obliquely or by inference to provide it: Ontario Public Service Employees Union (Vitorino et al) and The Crown in Right of Ontario (Ministry of Government Services) GSB#2009-1293, 2009-1750 (2010).

7The Union responds that: (1) while Article UN 2 does not apply directly to seasonal employees, it is the only interpretive guide to be found in the collective agreement with respect to what the reference to Hours of Work Schedule number 4 associated with Classroom Assistants in the Salary Schedule means; (2) accordingly, that the number 4 must therefore refer to 40 hours per week; (3) as a result, Article 32.2.1, which defines seasonal employees as employees scheduled to work 36 ¼ or 40 hours per week must be understood to provide Classroom Assistants with a 40 hour normal workweek; (4) the McGann case is distinguishable because Classroom Assistants are entitled to be scheduled to 36 ¼ hours or 40 hours per week, unlike the grievor in that case who was assigned only irregular hours, with the consequence that attributing the normal hours associated with his Hours of Work Schedule number would have produced absurd results; (5) the Employer has never applied the interpretation that the reference to Hours of Work Schedule number 4 sets a threshold at which overtime becomes payable, but rather has always begun paying overtime at 36 ¼ hours per week; (6) the practice of the Employer at the Brantford site indicates that where the parties have turned their minds to the question of weekly hours of work they have determined that the intended hours must be 40; (7) this result is not arrived at obliquely but as a direct result of applying the guidance supplied by Article UN 2 to the determination, made necessary by Article 32.2.1, of whether Classroom Assistants are to be assigned 36 ¼ or 40 hours per week; (8) grievances should only be dismissed for failing to make out a prima facie case in the clearest of cases: Re K-Bro Linen Systems Inc. and Teamsters Local Union 847, 2015 CarswellOnt 16236, 262 L.A.C. (4th) 425 (Luborsky); Ontario Public Service Employees Union (Evangelista et al) and The Crown in Right of Ontario (Ministry of the Attorney General), GSB#2009-1091, 2010-1854 (2011) (Harris); (9) this Board should consider evidence of how the Employer has scheduled work weeks as between the Ottawa, Belleville and Brantford locations, and how it has compensated overtime at those sites. This evidence, the Union submits, will show that the Employer has not had a policy of only paying overtime if hours worked exceed 40, but rather that all parties have proceeded on the basis that weekly hours of work scheduled would line up with the hours of work threshold for overtime.

Decision

8Since the Employer brings a motion to dismiss for failing to present a prima facie case, for the purposes of this decision I must accept as true not only the matters stipulated above but also that, as the Union alleges, the Employer has long begun paying overtime at 36 ¼ hours per week at the Ottawa and Belleville locations.

9The Union’s argument is essentially that because Article 32.2.1 stipulates that seasonal employees must work either 36 ¼ or 40 hours per week, and because according to the Salary Schedule Classroom Assistants have an Hours of Work Schedule number 4, and because Article UN 2 defines Hours of Work Schedule number 4 as being 40 hours per week, the Classroom Assistants must be entitled to a minimum of 40 hours of work per week. For the reasons that follow, I do not agree.

10I start by noting that Article 32.2.1 does not confer entitlements. Article 32 begins as follows:

32.1 Articles 32.2 to 32.21 apply only to seasonal employees.

32.2 DEFINITION

32.2.1 A seasonal employee is an employee appointed for a period of at least eight (8) consecutive weeks to an annually recurring full-time position in the Fixed-Term Service in a ministry. For purposes of this definition full-time means a minimum of thirty-six and one quarter (36 ¼) or forty (40) hours per week, as applicable.

In this context Article 32.2.1 serves only to specify which employees will be classed as seasonal employees. It provides that a seasonal employee is an employee appointed to an annually recurring position with 36 ¼ or 40 weekly work hours, “as applicable”. This drafting clearly indicates that the determination of the number of a seasonal employee’s weekly work hours will be made elsewhere.

11The Employer takes the position that weekly work hours of Classroom Assistants are determined by the terms of their contractual letters of appointment. The Union says that the association of Classroom Assistants with Hours of Work Schedule number 4 in the Salary Schedule determines their weekly hours by setting a minimum of 40.

12On its face, the Salary Schedule does not create an entitlement to a minimum number of hours for Classroom Assistants. The purpose of the Salary Schedule is to set salaries. Further, the collective agreement expressly sets normal hours of work elsewhere, in Article UN 2. This again indicates that functions of the Salary Schedule do not extend to providing for normal hours of work. Finally, in Articles 31 and 32.21 the collective agreement expressly states that only specific Articles, which do not include Article UN 2, apply to seasonal employees. Yet to interpret the use of Hours of Work Schedule number 4 in the Salary Schedule as providing for the normal hours of work identified in Article UN 2 would be to effectively import that Article into the Salary Schedule. This would be contrary not only to the more limited purposes of the Salary Schedule but also to the plainly expressed intention of the parties that the collective agreement terms establishing normal hours of work do not apply to seasonal employees.

13As the Union points out, the listing of Hours of Work Schedule numbers in the Salary Schedule must serve some purpose. In McGann, supra, Arbitrator Harris determined that the Salary Schedule refers to Hours of Work Schedule numbers in order to identify the threshold of hours worked after which overtime rates are payable. This determination is consistent with the purpose of the Salary Schedule in setting rates of pay. It is a precedent that has been in place for almost 18 years, and one that I should follow in the absence of good reasons to depart from it.

14The Union says treating the Hours of Work Schedule number in the Salary Schedule as setting a threshold for overtime rates for Classroom Assistants would produce contradictory results. Specifically, the Union makes two arguments. First, it submits that overtime would become payable according to the Salary Schedule at 40 hours per week while Classroom Assistants might be assigned normal workweeks of only 36 ¼ hours under the terms of their contracts. I see no contradiction in this. The purposes of overtime payments overlap with but are distinct from the purposes of normal hours stipulations. Overtime rates serve to compensate employees for the effort and inconvenience associated with long workdays or workweeks. Normal workweek provisions provide predictability. Second, the Union submits that in fact the Employer has consistently paid overtime to Classroom Assistants at the Ottawa and Belleville locations at a 36 ¼ hour threshold, rather than after 40 hours per week, indicating that the Hours of Work Schedule number 4 does not serve as an overtime threshold for Classroom Assistants. Again, I see no necessary contradiction. The 40-hour threshold established in the Salary Schedule can serve as a collective agreement minimum that can be exceeded according to contract terms in letters of appointment, or by consistent employer practice.

15Monetary benefits should not be derived obliquely from the language of the collective agreement.

16I conclude that the collective agreement does not establish, directly or indirectly, specific minimum weekly work hours for Classroom Assistants. As a result, even if I were to accept that the facts are as alleged by the Union, the grievance could not succeed.

17The grievance is dismissed.