ETO Component Article 7.1(g) Inspectional Services Hours of Work - Union Interpretation

May 3, 2005

INTRODUCTION

Article 7.1(g) of the Component Agreement is likely the most misunderstood hours of work schedule in existence. For more than 20 years the interpretation of Article 7.1(g) and its application has been the subject of numerous grievances and disputes. As a result arbitration decisions over the years have helped clarify the intent and proper application of this language.

Article 7.1(g) continues to be interpreted inconsistently by both the Employer and our members leading to work schedules that are often not in our best interest. This inconsistency in turn has, in many cases, led to an abuse of the original intent of this hours of work schedule.

We believe the years of inconsistent application of this article has eroded and perhaps changed the intent as was originally negotiated. It is important that this language is interpreted and applied in as consistent a manner as possible to ensure fairness and to prevent further abuse. This will hopefully help to strengthen and maintain the intent of the language.

The purpose of this bulletin is provide those members who are required to work within Article 7.1(g), with information that will be helpful in developing work schedules that are consistent with the appropriate application this article.

It is advised that members covered by Article 7.1(g) apply this hours of work schedule as specified in the agreement and do not agree to any hours of work arrangements or options that are not otherwise provided for in the article.

The following is intended to assist members in the correct interpretation of this language in order that hours of work schedules can be developed correctly. Our intent is to provide factual information based on our understanding of the application of this language as further interpreted by arbitration decisions over the years. If any of the following information is inconsistent or contrary to the collective agreements, the collective agreements shall always prevail.

EMPLOYEES COVERED BY ARTICLE 7.1(G) Inspectional Services

1. Classifications of employees who are covered by Article 7.1(g) are listed under section (1) of the article (found on page 15 of the 13th Component Agreement). Those included in this list are covered solely by the hours of work schedule described in this article and cannot enter into agreements to use other hours of work schedules (such as those shift patterns listed in table A).

2. Forest District Engineering staff, Park Assistants, and Senior Park Rangers are not covered by the 7.1(g) hours of work schedule and are entitled to select a Table A shift pattern. However, this group of employees has the option [see 7.1(g)(1)] to make a request to the employer to be covered by the flexible hours of work provisions of Article 7.1(g).

3. Although Forest Protection Branch staff are not included in the classifications of employees listed in Article 7.1(g)(1) they are in fact governed by the flexible hours of work provisions of Article 7.1(g). This is because Article 7.1(m), which applies only to Forest Protection Staff, states employees are governed by Article 7.1(g) except when involved in forest fire suppression duties. The article describes those times when Forest Protection Branch Staff are not covered by 7.1(g) and provides an alternate hours of work schedule.

EMPLOYEE OPTIONS

1. The 7.1(g) hours of work schedule for the most part is completely written in the collective agreement, and the members and the Employer only need to mutually agree to a few options that the schedule provides. Therefore any hours of work agreement under this article should only address the options selected that have been mutually agreed to. It is not necessary or advisable to rewrite what is already specified in the article or to otherwise interpret the language. The options that may be included in the written agreement with the employer include the following:

•Option to provide core hours
•Must select either four or five consecutive work days
•Length of meal breaks (i.e. 30 minutes or one hour)
•The consecutive days to be worked (i.e. Monday to Friday). Therefore work days and days of rest would be determined.

2. Park Officers or Park Assistants have the added option of selecting a four-week 140-hour averaging period. All other employees covered under Article 7.1(g) must work a two-week 70-hour balancing period and do not have the 140-hour option.

NO MINIMUM HOURS

There is no minimum number of hours an employee must work in any given day. It is recognized and stated in this hours of work schedule (7.1(g)(4)) that employees must have the flexibility to work less than seven hours a day in some circumstances. This would allow employees the discretion to determine the hours they should work in a day and also enable the completion of the regular hours that must be worked in the averaging period.

DISCRETION & HOURS OF OPERATION

1. The Employer or Union member should not be specifying shift start and finishing times in this flexible hours of work schedule. Article 7.1(g) clearly provides the employee the discretion to choose the hours to be worked in a day. Employees must still work within the hours of operation and must also work any core hours (maximum three hours between 8:00 am and noon) that may be specified by the Employer. Employee discretion and hours of operation have been addressed in several previous arbitration decisions. As a result we now have a clearer understanding as to the meaning of these terms as they are applied in Article 7.1(g).

•Hours of Operation are not the same as the hours the office is open to the public. It is often confused where the 8:30 am to 4:30 pm office hours are the hours of operation. Although the Master Agreement provides a definition for hours of operation, the 1981 Black Arbitration Decision further defined and clarified what hours of operation meant. This definition has been upheld in subsequent arbitration decisions and is generally accepted by the parties. Black stated that the determination of what are true hours of operation must be a factual inquiry. He stated “hours of operation must necessarily include all of the hours bracketed by the time that there are hours actually worked by any employee within a particular work unit. That is, the hours of operation must not be determined based solely upon an Employer’s declaration of same but rather based on the actual realities of the workplace”.

•Even though past arbitration decisions relating to application of Article 7.1(g) have further defined the employees use of discretion under this article, it is the Union’s opinion that employees working under this flexible hours of work schedule still maintain broad rights to determine the hours they work in a day.

As a result of these awards discretion has been clarified. Discretion must be exercised responsibly in a way that is consistent with the preamble in Article 7.1(g). The preamble describes “the special needs of society for government services of an inspectional nature covering matters of public health and safety or in the field of resource protection and management”. An employee should therefore be able to exercise their discretion to work longer or shorter hours in a given day (which may be outside specified office hours but within the hours of operation) in order to carry out work that is consistent with any valid work-related reason that would generally fit with the special needs of society described in the preamble.

Arbitrators have upheld that discretion exercised for strictly personal reasons, to otherwise solely benefit the employee’s private life, would not be a legitimate use of discretion. However it is not wrong if an employee uses their discretion to work longer or shorter hours for valid work-related reasons, and that the result consequently benefits his/her private life.

It is also stated in the article that an employee can use discretion to determine work hours “provided that the service to the clients is maintained” or “providing that the functions of the work unit are maintained”.

DAILY HOURS OF WORK

Often members negotiating their hours of work agreement under Article 7.1(g) are requested by the Employer to work a set number of hours when in the office. The number is usually seven hours. The second request by the Employer is that the set seven hours be worked during a specific period, usually between the office hours of 830 am and 430 pm. Article 7.1(g)(2) very clearly states the discretion for setting daily hours of work rests with the employee. The article caps the maximum daily hours at ten, but provides no other daily restriction.

Where there is a specific operational requirement to provide service at a given time, the Employer is able to specify up to a maximum three-hour period (between 0800 hours and 1200 hours) provided the three-hour period is consistent in the annual schedule. Where there is no specific operational requirement, members should be free to set their hours using their discretion. As discussed earlier, arbitration decisions have upheld the use of discretion to vary hours of work in a day. The requirement is for the discretion to be exercised consistently with the spirit of the preamble language in Article 7.1(g)(1). In other words, it is appropriate for the employee using their judgment to vary their hours of work outside of set office hours for work-related reasons.

For this reason, it is not appropriate for the Employer to restrict the hours worked in a day if it prevents an employee from exercising his or her discretion as mandated by Article 7.1(g). Members are discouraged from agreeing to hours of work schedules under Article 7.1(g) that specify set daily hours to be worked; starting and finishing times or other terms that would significantly restrict the use of discretion within the hours of operation.

BANKING HOURS

Employees who work under the Article 7.1(g) schedule are entitled to overtime whenever they work more than ten hours in a day, or whenever they exceed the total hours required to be worked in the averaging period (i.e. 70 hours).

In some areas members have engaged in the practice of voluntarily working over the maximum hours in a day and/or averaging period, and “banking” the extra hours worked at straight time to be taken as time off at a later date. Employers have informally (and sometimes formally) agreed to these “banking” arrangements because it allows even greater flexibility to get the work done and at lower costs, primarily because overtime rates are not paid as well as other savings such as travel costs. Members also feel they benefit by gaining extra days they can take off work normally by mutual agreement.

The concern the Union has regarding these types of arrangements is that it violates the collective agreement and has provided the Employer another way of expanding work hours without having to pay any overtime. As a result, supervisors may expect members to work these extra hours as a matter of practice when carrying out regular business rather than pay overtime rates. This abuse, if continued, could certainly have the effect of reducing the amount of overtime members would normally be entitled to. The other fear is that whenever a work practice that violates the collective agreement is carried out over time, it could be seen in the future by an arbitrator as an established practice that has been agreed to by the parties, thus further eroding the original bargained intent of the language.

Members are therefore strongly encouraged not to bank hours or work beyond the maximum hours required in a day or work cycle unless legitimate overtime is approved. Banking hours violates Article 7.1(g), may contribute to less overtime and/or a smaller workforce, and could have the result of further eroding the rights we have under this hours of work language. Please don’t do it.

PARTIES MUST SEEK MUTUAL AGREEMENT WHEN CHANGING WORK SCHEDULES

It is important to note both Component Agreement Article 7.1(g) and Master Agreement Article 14.2 require the parties to seek mutual agreement when developing and changing work schedules.

The Component Agreement is clear that options available under 7.1(g) such as the days to be worked shall be by mutual agreement. The Master Agreement under Article 14.2 further requires the parties to seek mutual agreement when work schedules are changed and sets out a process when an agreement cannot be reached.

Members should be aware the Employer cannot impose changes to the hours of work or changes to hours of work options available in the Component Agreement without following the process to seek mutual agreement as set out in the collective agreements. The Union steward and the designated Employer representative have distinct roles in this process, and the process must be followed.