PSGB#P-2015-3211

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Morrison et al

Complainant

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Marilyn Nairn

Vice-Chair

FOR THE COMPLAINANTS

D. Morrison & J. Downard

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARINGS

April 21 and November 6, 2017

DECISION

1This application has been filed by a group of Sergeants who work at Central North Correctional Centre (“CNCC”). These individuals are Schedule 5 employees under the employer’s Compensation Directive. The complainants seek the payment of enhanced overtime for time spent working at the facility during the labour disruption that occurred in early January 2016.

2There is not much dispute as to the facts. In early January 2016 it was anticipated that Correctional Officers (“COs”), members of the OPSEU bargaining unit, might go out on strike. Contingency plans were put into place to ensure that this facility and others across the province would be staffed by managers from across the OPS. Early on Thursday, January 7, 2016 the COs at CNCC did not attend at work in an exercise that became known as the “blue flu”. As a consequence, the complainant Sergeants moved into the facility and, with some variance in their arrival times and length of stay, remained in the facility until Sunday, January 17, 2016. In the result, most, if not all of these complainants remained at CNCC on a 24/7 basis for a period of up to ten days. There was no dispute that all of this time spent in the facility was treated as work time. There was also no dispute that the Sergeants’ efforts reflected a much-appreciated commitment to the employer to keep the institutions operating safely and securely.

3The employer placed the Sergeants on an administrative schedule effective Monday, January 4, 2016. This meant that the Sergeants were scheduled to work an 8-hour shift Monday to Friday each week. The complainants acknowledged that the employer was entitled to so change their schedules, although they disputed the effect of that change.

4Overtime worked by the complainants on Monday, January 4 through to Wednesday, January 6, 2016 was paid at regular overtime rates based on the daily amount of overtime worked. Overtime worked on Thursday, January 7 and Friday, January 8, 2016 was paid at the enhanced overtime rate. Forty hours in the week was paid at the straight time rate. For the remainder of that weekend, the complainants received the 2.5x enhanced overtime payment provided they remained in the institution.

5Beginning on the Monday of week two of the labour disruption (January 11, 2016), the complainants continued to effectively work 24 hours a day. For those who remained in the institution, they were paid the 2.5x enhanced overtime rate for all hours until Friday, January 15, 2016 except for 40 hours paid at straight time. It appears that the enhanced overtime rate was paid until 11:59p.m. Friday, January 15, 2016.

6On January 8, 2016 the Director, Total Compensation Strategy Branch of Treasury Board Secretariat, issued a memo setting out the compensation items that had been approved by the Public Service Commission (“PSC”) relating to the labour disruption, effective January 7, 2016. That memo provided:

The Public Service Commission (PSC) approved a number of compensation items for work at institutions, youth centres and at the corporate or ministry strike response centres, relating to work resulting from a labour disruption, effective January 7, 2016.

Further, and also effective January 7, 2016, the PSC approved work locations where enhanced overtime, at two times (2x) or two and one-half times (2.5x) may be available.

These approvals are summarized in the chart below.

Starting January 7, 2016 at 12:01a.m.

[The chart provides for “Enhanced Overtime in Facilities for labour disruption related work at 2x or 2.5x” – “Available at the PSC-approved work locations listed in Appendix 1…”]

Overtime thresholds currently in place in the MBC Compensation Directive remain in place and must be met each week (Monday to Sunday) prior to the assignment of overtime credits for that week. These thresholds include:

• Schedule 4 and 5 employees, a minimum of 40 hours.

An employee is not considered to be working overtime when they are working their regular working period during a regular scheduled work day, when they are on call, on stand-by or travelling.

7There was no dispute that CNCC was listed on Appendix 1 and was an approved work location that attracted the enhanced 2.5x overtime rate.

8On January 28, 2016 a memo issued from the Deputy Minister of Correctional Services, Stephen Rhodes, which stated in part:

I am writing to confirm more detailed information regarding the Public Service Commission (PSC) approvals for compensation related to a labour disruption (LD). These items are summarized in the chart below:

When

January 7, 2016 at 12:01am to January 17, 2016 at 11:59p.m.

Entitlement

Enhanced Overtime in Approved Work Locations for LD related work at 2x or 2.5x [Available at the PSC-approved work locations….]

For employees who have entitlements to standard overtime credits through the MBC Compensation Directive, they may be entitled to standard overtime credits prior to the PSC approved LD related compensation.

For clarity, the above-noted overtime rates may only be applied for the period of January 7 to January 17, 2016, inclusive. All regular hours worked on January 4, 5, and 6, 2016 will contribute to meeting the overtime threshold requirements.

Per the regular rules, an employee is not considered to be working overtime when they are working their regular working period during a regular scheduled work day…

(emphasis added)

9On January 29, 2016 the Director, Total Compensation Strategy Branch issued another memo that repeats both the entitlement to standard overtime prior to the labour disruption and that the overtime thresholds remain in place. It also re-states that the entitlement to the enhanced overtime “may only be applied for the period January 7, 2016 at 12:01am to January 17, 2016 at 11:59p.m. inclusive”.

10The reference in the January 28 memo (repeated in the January 29 memo) to standard overtime accounts for the payment of daily overtime at time and a half on Monday, January 4 to Wednesday, January 6, 2016. However, contrary to the Deputy Minister’s January 28, 2016 memo, the January 29, 2016 memo stated that:

All hours worked on January 4, 5, and 6, 2016, will contribute to meeting the overtime threshold for the week.

11On February 1, 2016 a further memo issued from Assistant Deputy Minister of Institutional Services, Pauline Jones. It confirms that Schedule 5 employees were placed on an administrative schedule for the period January 4 - 17, 2016. It also confirms that the enhanced overtime was available in approved work locations for labour disruption related work until January 17, 2016 at 11:59p.m.

12Lastly, on February 4, 2016, a memo issued from the Deputy Superintendent of Finance & Performance Management at CNCC. It essentially lists the compensation owing on a daily basis over the period from January 4 to January 17, 2016. However, it states that hours worked on Saturday, January 16 and Sunday, January 17, 2016 are to be paid at a rate of 1.5x the regular rate on the basis that the institution was “back to normal operations” effective 1800 hours on Friday, January 15, 2016.

13It was the evidence of Sergeant Darren Morrison that CNCC was back to its regular schedule on Monday, January 18, 2016. Mr. Morrison’s evidence was that some Sergeants were kept at CNCC over the January 16-17, 2016 weekend in order to do cleanup and prepare for the start of regular operations on the Monday. This included the tear-down and clean-up of the “tent”, the area where the Sergeants were housed over this period. It had been established in an inmate training area and had to be dismantled, and the area cleaned and readied and available for inmate use on the Monday. This evidence as to the type of work performed by the Sergeants in the institution over that weekend was not challenged.

14It was the position of the complainants that they were entitled to the enhanced overtime rate as follows:

1. Week one - payment of the enhanced overtime effective on their arrival in the institution on January 7, 2016 as they had already worked their 40-hour minimum to trigger the enhanced overtime (a claim for 16 hours);

2. Alternatively, payment for the enhanced overtime reflecting the time worked and paid on Friday, January 8, 2016 at regular rates, as the 40-hour minimum had been worked (a claim for 8 hours);

3. Week two - 40 hours that had been paid at straight time to be paid at the enhanced rate as the 40-hour minimum was not required to ‘re-set’ in week 2; and

4. Payment at the enhanced rate for work performed from Friday, January 15 at 1800 hours to Sunday, January 17, at 11:59p.m.

15The complainants referred to the decision in D. O’Donnell et al and The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services), PSGB File P/0023/96 et al, dated December 11, 1997 (Leighton) in support of its argument that there was no need to satisfy the 40-hour minimum threshold in week two as the Sergeants had not left the building. They noted that they had all experienced significant disruption in their lives in terms of vacation plans and excessive standby over the prior year while bargaining was ongoing and threats of labour disruption came and went, but, at the same time, they had worked closely with the Ministry to plan for any labour disruption so as to ensure the safety and security of the institutions. The complainants asserted that their Superintendent had told them that they would receive the enhanced pay, and that they are now hesitant to step up as the Ministry may require, out of concern that they are not going to be paid what they are told they will receive.

16It was the position of the employer that no further entitlement to overtime arose in the circumstances. It argued that the 40-hour minimum at straight time was required in each week. It relied on the February 4, 2016 memo as setting the appropriate rate for work performed on the weekend of January 16 and 17, 2016 at regular overtime rates, that is, time and a half not 2.5x.

17The employer argued that the Board has no jurisdiction to amend terms and conditions of employment set by the employer, even if those terms are set retroactively. It is the role of the Board, argued the employer, solely to interpret and apply those terms and conditions. No entitlement to enhanced overtime exists, argued the employer, until the employer says it exists, pursuant to a determination made by the PSC. The directives regarding overtime applied across the OPS, noted the employer, as managers were being redeployed from across the OPS to assist with the labour disruption.

18With respect to the weekend work on January 16 and 17, 2016, the employer argued that the February 4, 2016 memo stated that the labour disruption had ended. There was no entitlement to enhanced overtime as of that point, argued the employer. It was no longer a term or condition of employment.

19The employer distinguished the case relied on by the complainants as arising under different legislation and regulations, referring the Board to the Directive as setting out the terms and conditions of employment. The employer also referred to the decisions in Lisa Smith et al and The Crown in Right of Ontario (CSCS), PSGB File #2012-4155, dated July 9, 2014 (O’Neil), and Candace Kaine and The Crown in Right of Ontario (MCY), PSGB File #2013-1036 dated July 11, 2014 (O’Neil) in support of its position that the authority of the Board is limited to interpreting and applying the terms and conditions of employment.

20It is the case, as set out in the decisions in Smith and Kaine, both supra, that the Board has no jurisdiction to set terms and conditions of employment for excluded employees, including these Schedule 5 Sergeants. The Board’s authority and role is to interpret the applicable terms and conditions of employment and apply them to the circumstances at issue, in order to determine whether or not there has been a breach of those terms or conditions.

21It is also the case that the terms and conditions of employment being considered in the O’Donnell decision, supra, were different from those in issue here. In that case, overtime was payable, inter alia, after the employee worked his regularly scheduled shift. There was no other or express overtime threshold that was required to be met before the entitlement to overtime arose. Since that decision issued some twenty years ago, both the structure of overtime compensation (now flowing from the Compensation Directive) and the specific terms of that compensation have changed. On that basis the decision is distinguishable from the circumstances at hand and provides no guidance.

22So what were the terms and conditions of employment applicable in the circumstances?

23The memo of January 8, 2016 set out the terms and conditions established by the PSC. It stipulated that enhanced overtime may be available and then set out the parameters. The chart at page 2 of that memo sets out the “when”, “what” and “who”. Starting January 7, 2016 at 12:01am, enhanced overtime was to be available in facilities for labour disruption related work at those locations listed in Appendix 1. Subject to the period January 15 to January 17, 2016, there is no dispute that these Sergeants worked at an approved facility performing labour disruption related work and were therefore entitled to the enhanced 2.5x overtime rate, subject to any other applicable conditions.

24The memo of January 8, 2016 also stipulated the further conditions on that overtime entitlement. It clearly stated that existing overtime thresholds remained in place and must be met each week. The week is expressly defined as Monday to Sunday. For a Schedule 5 employee, that threshold is a minimum of 40 hours.

25Of significance is that the memo made clear that an employee was not considered to be working overtime when they were working their regular working period during their “regular scheduled work day”. Over this period the employer had placed the Sergeants on an administrative schedule. That is, they were all scheduled to work Monday to Friday for 8 hours each day. There was no dispute that the employer was entitled to change the Sergeants’ schedule in this manner. The memo confirms that these hours worked are not considered as overtime work.

26I am not prepared to place any weight on the omission of the word “regular” from the January 29, 2016 memo. The January 28, 2016 memo from the Deputy Minister includes that refinement and its inclusion is consistent with the other language regarding the application of the overtime threshold that refers to a “regularly scheduled work day” and “regular working period”. Thus, to the extent that it creates an ambiguity, I am satisfied that the ambiguity is properly resolved in favour of an interpretation that requires the overtime threshold to include only those regularly scheduled hours worked on those days, not all hours worked on those days. I also note that the applicable terms and conditions of employment are those set by the PSC, regardless of how those terms may have been communicated locally.

27In the result, the Sergeants were required to work their scheduled work time to a minimum of 40 hours at the straight time rate each week. That is, the employer was entitled to carve out 16 hours of scheduled work on January 7 and January 8, 2016 to be paid at the straight time rate. Daily overtime was paid at the enhanced rate. Further, in week two, the employer was entitled to ‘re-set the clock’ as of Monday, January 11 2016. Subject to the second weekend, the employer treated any overtime in week two as attracting the enhanced rate, regardless of whether the 40 hours had yet been worked at straight time. That is, it appears to have paid the enhanced rate on the daily overtime. However, the deduction of 40 hours paid at the straight time rate from the total hours worked from Monday, January 11 to Friday, January 15, 2016 inclusive is consistent with the stipulation that an employee is not considered to be working overtime when they are working their regular working period during their “regular scheduled work day”.

28Therefore the enhanced overtime claims made by the Sergeants under points 1 through 3 in paragraph 14 above are not supported and must be dismissed.

29The remaining claim is with respect to the second weekend - January 16-17, 2016. The employer argued that the February 4, 2016 memo says that the labour disruption was over at 1800 hours on January 15, 2016. It appears that the enhanced rate was paid for overtime work performed on Friday, January 15, 2016 beyond 1800 hours, notwithstanding that the February 4 memo stated that the institution was back to normal operations at that time. The weekend work was paid at regular overtime rates rather than the enhanced overtime rate.

30The memo of February 4, 2016 refers to when the institution was “back to normal operations”. That is arguably different language from the earlier memos that set out the PSC approved condition for enhanced overtime as being payable in respect of “labour disruption related work”.

31Although the January 8, 2016 memo did not (and could not) refer to an end date, all of the other memos issued (with the exception of the February 4 memo) refer to January 17, 2016 at 11:59p.m. as the PSC approved end date for the enhanced overtime entitlement, subject to the condition that it be in relation to labour disruption related work. And the January 8, 2016 memo, issued prior to this work being performed, uses that same language, stating that the enhanced overtime is payable from January 7, 2016 for labour disruption related work.

32The Sergeants were entitled to rely on the PSC approved terms and conditions of employment as conveyed to them on January 8, 2016 in advance of this work being performed. The information as to the PSC approved end date of the entitlement was conveyed by the Director, Total Compensation Strategy Branch of Treasury Board Secretariat, by the Deputy Minister of Correctional Services, and by the Assistant Deputy Minister of Institutional Services in the subsequent memos of January 28, January 29, and February 1, 2016.

33I am satisfied therefore that the term and condition of employment in effect provided an entitlement to enhanced overtime that continued until January 17, 2016 at 11:59 p.m. subject to the condition that the Schedule 5 employees in approved facilities were engaged in labour disruption related work. Whether such an employee was engaged in labour disruption related work is a question of fact.

34The evidence before me establishes that those Sergeants who remained and worked in CNCC until Sunday, January 17, 2016 did so in order to prepare the facility for normal operations and were engaged in work that involved removing the ‘tent’ that had housed the Sergeants during the labour disruption and cleaning that inmate area in preparation for its normal use by inmates. There was no evidence as to how or why the reference to normal operations was included in the February 4, 2016 memo. And, just because a labour disruption may have ended, it does not necessarily follow that labour disruption related work has ended. On the evidence, CNCC did not return to normal operations until Monday, January 18, 2016. Based on the evidence, I am satisfied that the Sergeants who remained at CNCC through to Sunday, January 17, 2016 continued to perform labour disruption related work.

35I find therefore that the Sergeants at CNCC who remained in the facility over the period were entitled to the enhanced overtime rate for overtime work performed beyond January 15, 2016 at 1800 hours. That entitlement ended only as of Sunday, January 17, 2016 at 11:59 p.m.

36This application is hereby allowed to the following extent. I hereby order the employer to pay to each complainant who remained in the facility throughout the period any overtime balance owing in respect of time worked from Friday, January 15, 2016 at 1800 hours to Sunday, January 17, 2016 at 11:59 p.m. I remit the matter of calculating the amounts owing back to the parties. I understand this to be the difference between the regular overtime rate of 1.5x and the enhanced overtime rate of 2.5x.

37I will remain seized with respect to any issue arising out of the implementation of this award.