P-2006-1353, P-2006-1354, P-2006-1355, P-2006-1520
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Mark Drakos et al.
Grievor
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Kathleen G. O’Neil
Vice-Chair
FOR THE GRIEVORS
Mark Drakos, Dennis Burt and Lisa O’Brien
FOR THE EMPLOYER
Sean Kearney Senior Counsel Ministry of Government Services
HEARING
March 15, 2007.
Decision
In the grievance before me, four Operational Managers, Mark Drakos, Dennis Burt, Jim Allen and Lisa O’Brien claim payment of supervisory shift premium, also known as Management Responsibility Supplements, when they are supervising bargaining unit members in receipt of shift premiums, even when overtime is also payable. The employer’s position is that the provisions of section 10.20 of Regulation 977 under The Public Service Act make clear that this is not a term or condition of their employment. Employer counsel made a motion asking that the matter be dismissed for want of a prima facie case, essentially arguing that the grievors’ case does not have a sufficient foundation to proceed. This decision deals with that preliminary motion.
For the purposes of this motion, the facts asserted by the grievors are assumed to be true and provable. Indeed, there is no dispute about the facts necessary to this decision, most basically that the grievors, who are members of the Management Compensation Plan, have not been paid both supervisory shift premiums, called Management Responsibility Supplements in the current regulation, and overtime for the same period of work. Management communications from time to time have stated that the Management Responsibility Supplements apply to any Management Compensation manager who supervises OPSEU correctional staff eligible for the OPSEU Correctional Shift Premium, as well as that these managers are not entitled to be paid the supplement in a time period when they are entitled to receive overtime. Further, the grievors assert that the employer budgets for shift premiums, and that an Operational Manager working overtime on shifts is not considered an extra post.
The disposition of this motion turns on the interpretation of Section 10.20 of Regulation 977, which reads as follows:
Management Responsibility Supplements
10.20 (1) An employee described in subsection (3) is entitled to be paid a management responsibility supplement in the circumstances described in subsection (4), (5) or (6). O. Reg. 75/06, s. 2.
(2) An employee who is entitled to be paid overtime when he or she works in the circumstances described in subsection (4), (5) or (6) is not entitled to be paid a management responsibility supplement for the same period of work. O. Reg. 75/06, s. 2.
(3) Employees are entitled to a management responsibility supplement under this section,
(a) if they are employed in a class of position that falls within the Management Compensation Plan; and
(b) if, when they are working in the circumstances described in subsection (4), (5) or (6), they are engaged in supervising any member of the correctional bargaining unit who is entitled to a shift premium under a collective agreement that applies exclusively with respect to that bargaining unit. O. Reg. 75/06, s. 2.
(4) An employee is entitled to be paid a management responsibility supplement of $1 per hour, instead of the shift premium described in subsection 10.19 (5),
(a) for the time that he or she works between 5 p.m. and midnight; or
(b) if more than half of the time he or she works on a shift falls between 5 p.m. and midnight, for the time that he or she works on the shift. O. Reg. 75/06, s. 2.
(5) An employee is entitled to be paid a management responsibility supplement of $1.50 per hour, instead of the shift premium described in subsection 10.19 (6),
(a) for the time that he or she works between midnight and 7 a.m.; or
(b) if more than half of the time that he or she works on a shift falls between midnight and 7 a.m., for the time that he or she works on the shift. O. Reg. 75/06, s. 2.
(6) An employee is entitled to be paid a management responsibility supplement of $3.50 per hour for all hours that begin at or after 7 p.m. on a Friday and end at or before 7 a.m. on a Monday. This management responsibility supplement is payable in addition to any management responsibility supplement payable under subsection (4) or (5). O. Reg. 75/06, s. 2.
(7) Employees are entitled to be paid a management responsibility supplement at the rate specified under subsection (6) for work performed on and after June 24, 2005. O. Reg. 75/06, s. 2.
(8) Employees who are paid a management responsibility supplement for work performed on or after June 24, 2005 are not entitled to be paid a special shift premium under subsection (6) as it read immediately before it was remade by this Regulation, but if an employee has been paid a special shift premium, the employee is entitled to be paid the difference, if any, between the special shift premium and management responsibility supplement. O. Reg. 75/06, s. 2.
(9) Despite subsection (3), employees are not entitled to compensation under this section if they are represented by the Association of Law Officers of the Crown, the Association of Ontario Physicians and Dentists in the Public Service, the Commissioned Officers’ Association or the Ontario Crown Attorney’s Association. O. Reg. 75/06, s. 2.
The employer submits that subsection 20(2) makes it crystal clear that if the grievors are entitled to be paid overtime when they are working shift and supervising members of the correctional bargaining unit, they are not entitled to be paid the management responsibility supplement as well. The grievors may not be content about the fact that bargaining unit members receive a shift premium when they do not, if they are working overtime hours, but there is no remedy for that discontent in the regulatory language or any other term or condition of employment, in the employer’s submission. Further, counsel points out that the structure of the predecessor regulation was identical, in that only the amounts and the name “Special Shift Premiums” were different, so that the situation has been the same for many years. Counsel notes that the Board dismissed a very similar claim in Group grievance and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB#P/0006/01 (Leighton), although the claim in that case, for shift premiums in addition to overtime payments, was more explicitly based on what the OPSEU collective agreement provided.
For their part, the grievors argue that Subsection 10.20(2) is redundant as it fails to address subsection 10.20 (3). Mr. Drakos writes that subsection 10.20(2) does not specify what type of employee it is referring to as working in the shifts set out in subsections 4, 5, and 6, and that it does not say they are talking about an employee described in subsection 3(a). In order to be interpreted in the way the employer is interpreting the subsection, the grievors submit that it should be phrased similarly to subsection 9, which commences with the wording “Despite subsection 3…”. The grievors argue that subsection 10.20 (2) should be read to mean that a manager who is working shifts, but not supervising correctional staff would not get the Management Responsibility Supplement. They would be receiving the standard shift premiums, rather than the higher amount payable when a manager is supervising correctional officers.
They submit that there are practical reasons concerning morale and retention for granting the Operational Managers the same benefit as the Correctional Officers they supervise. Further, they maintain that, if the employer’s interpretation of Subsection 10.20 (2) is upheld, it should be considered archaic, and the Government should override it.
Having given the grievors’ arguments careful consideration, it is abundantly clear that they cannot be accepted. If the meaning of a statute or regulation is plain, the Board must apply it as written. The meaning of Section 10.20 of Regulation 977 is plain, and can be expressed in the following paraphrase of its language: When working specified evening, night and weekend shifts, a manager who supervises a member of the correctional bargaining unit who is entitled to a shift premium is entitled to be paid a management responsibility supplement in the amounts set out [detailed in subsections (4), (5) and (6)], unless he or she is entitled to be paid overtime for the same period of work.
The Board has no discretion to ignore Subsection 10.20(2), nor any of its wording, which is not redundant. It says what it means, and it means what it says. If a manager is entitled to overtime when he would otherwise be entitled to a management responsibility premium, he is not entitled to get the management responsibility premium for the same period of work. Perhaps it would be more elegantly phrased if it was worded similarly to subsection 10.20(9), or sequenced differently, but its meaning is very clear. I have considered the grievors’ submission that subsection 20.10(2) does not say what kind of employee it applies to, but I cannot agree that this leads to the result the grievors are seeking. Although subsection 10.20(2) uses the term “an employee”, instead of repeating “an employee described in subsection (3)”, as in subsection 10(20(1), it is very clear in context that both subsections are referring to the same group. All of the words of the section 10.20 must be read together, not separated out, or interpreted out of context.
The grievors’ argument that subsection 10.20(2) should be interpreted as applying to managers who are working shifts but not supervising correctional officers cannot be accepted either. Section 10.20 only creates any entitlement for members of the Management Compensation Plan who are supervising a member of the correctional bargaining unit who is entitled to a shift premium. Those are the employees “described in subsection (3)” who are the only beneficiaries of the entitlement created in subsection 10.20 (1), which they receive instead of the standard shift premiums provided for in subsection 10.19. That subsection, which appears in the regulation immediately before section 10.20, deals with standard shift premiums, which are payable to any member of the management compensation plan, whether or not they are supervising bargaining unit members, correctional or otherwise. It is of note that the standard shift premiums are also not payable for overtime hours, by virtue of subsection 10.19 (2). Section 10.19 reads as follows:
Standard Shift Premiums
10.19 (1) An employee described in subsection (4) is entitled to be paid a shift premium under this section when he or she works in the circumstances described in subsection (5). O. Reg. 229/00, s. 1; O. Reg. 1/04, s. 6 (1).
(2) An employee who is entitled to be paid overtime when he or she works in the circumstances described in subsection (5) is not entitled to be paid a shift premium for the same period of work. O. Reg. 229/00, s. 1; O. Reg. 1/04, s. 6 (2).
(3) The amount and form of compensation are determined under this section. O. Reg. 229/00, s. 1.
(4) Employees are entitled to a shift premium under this section if they are employed in a class of position that falls within the Management Compensation Plan. O. Reg. 229/00, s. 1.
(5) An employee is entitled to be paid a shift premium of 78 cents per hour,
(a) for the time that he or she works between 5 p.m. and 7 a.m.; or
(b) if more than half of the time that he or she works on a shift falls between 5 p.m. and 7 a.m., for the time that he or she works on the shift. O. Reg. 1/04, s. 6 (3).
(6) Employees are entitled to be paid a shift premium at the rate specified under subsection (5) for work performed on and after January 1, 2002. O. Reg. 1/04, s. 6 (3).
(7) Despite subsection (5), an employee is not entitled to be paid a shift premium in the following circumstances:
The employee usually works during the day and he or she is required to work beyond his or her regular working period on a particular day.
The employee and his or her supervisor agree that, instead of working the usual hours for the employee’s position (for which no shift premium is payable), the employee may work during hours for which a shift premium would otherwise be payable under this section. O. Reg. 229/00, s. 1; O. Reg. 1/04, s. 6 (4).
(8) Despite subsection (4), employees are not entitled to compensation under this section if they are represented by the Association of Law Officers of the Crown, the Association of Ontario Physicians and Dentists in the Public Service, the Commissioned Officers’ Association or the Ontario Crown Attorney’s Association. O. Reg. 229/00, s. 1.
In the grievors’ material filed with their application to the Board they note that in a June 28, 2006 memo to Operational Managers, Mr. Michael Stephenson, Acting Assistant Deputy Minister Adult Institutional Services, stated that an employee in the Management Compensation Plan “who is entitled to be paid overtime is not entitled to the Management Responsibility Supplement.” Their argument does not convince me that this memo incorrectly stated their terms and conditions of employment in respect of the Management Responsibility Supplement, or that its application breached any other term or condition of their employment. The grievors also write that in a June 26, 2006 document entitled “Management Responsibility Supplement - Questions and Answers for Managers”, the employer indicated that the management responsibility supplement applies to any MCP [Management Compensation Plan] manager who supervises OPSEU correctional staff eligible for the OPSEU Correctional Shift premium. That wording does appear in the answer to Question #4 question: “Why was MRS (Management Responsibility Supplement) created?” Nonetheless, in Questions #1 and 2 which precede it in the same document, it is made quite clear that the Supplement is available for non-overtime hours only.
In his submissions, Mr. Drakos was frank to admit that what the grievors are looking for is the “same benefit that Correctional Officers get”, but they have gotten the message from the many Board decision on the theme that they cannot succeed by claiming entitlement to the same terms and conditions of employment that apply to the bargaining unit. So they argue instead that the wording of the regulation should be interpreted to get them the same result. The Board would have to turn subsection 10.20(2) on its head to grant that result.
Employer counsel included a selection of the Board cases that hold that managers cannot launch a successful grievance on the basis of the content of the collective agreement applicable to the bargaining unit members they supervise. They were: Group grievance and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB#P/0006/01 (Leighton); Group grievance, Newman et al. and The Crown in Right of Ontario (Ministry of Correctional Services) PSGB#P/0003 to 0010/98 (Leighton); Mark Woodward et al. and The Crown in Right of Ontario (Ministry of Community and Social Services) PSGB#P-2005-1853 (O’Neil); Ronkai et al. and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB#P-2004-0267 (O’Neil), and as to cases dismissed for want of a prima facie case, or on the merits, where no entitlement to the remedy claimed in the grievors’ terms and conditions of employment was established: Mark Woodward et al. and The Crown in Right of Ontario (Ministry of Community and Social Services) PSGB#P-2005-1853 (O’Neil); Nancy Marshal and The Crown in Right of Ontario (Ministry of Health and Long-Term Care) PSGB#P-2004-2738 (O’Neil); : Bertolo and Tighe and Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) PSGB#P/0008/95, P.009/95 (Leighton); Mark Drakos and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB#P-2004-1721 (O’Neil).
Based on the plain reading of the regulation, the employer’s motion is granted. The grievors’ claim cannot succeed; they are asking the Board to give them a remedy which is the exact opposite of what subsection 10.20(2) of Regulation 977 provides. That regulation is part of their terms and conditions of employment, so that what they are asking is not. Therefore, the Board finds that the grievors have not established a sufficient foundation to entitle them to any remedy, since the facts before me do not indicate that any term or condition of their employment has been breached or improperly applied to them.
In the result, for the reasons set out above, the grievances are dismissed.
Dated at Toronto this 3rd day of July, 2007