FPSLREB Decisions

[1]    The complainants filed seven grievances. Serge Bouchard, Carol Gilbert and Daniel Letendre filed a first type of grievance contesting the fact that they work 12-hour shifts and that the employer debits leave based on a 12-hour work day whereas sick, annual and family leave are credited based on 7.5-hour days. However, the work day for employees on 8-hour shifts is 8 hours.

[2]    Serge Bouchard, Carol Gilbert, Roger Gignac and Richard Robidoux filed a second type of grievance against their employer, who converted accumulated annual and sick leave credits based on 8-hour work days to 7.5-hour work days.

[3]    The collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN) (codes 601 and 651 having expired on May 31, 2002) was filed by agreement as Exhibit S-1. This collective agreement was signed on April 2, 2001.

[4]    The grievors called three witnesses: Sylvain Lavigne, Richard Pelletier and Serge Bouchard. The employer called one witness, Françoise Nittolo.

[5]    Sylvain Lavigne has been a CX-1 correctional officer since July 27, 1981. He has worked at the Drummond Institution, in Drummondville, since January 15, 1985.

[6]    Mr. Lavigne has been active in the union since 1986. He started as a union delegate and became Vice-President of his local early in 1987 and President in the latter half of 1987. In 2000, Mr. Lavigne was elected Regional Vice-President of the Union of Solicitor General Employees (USGE), an affiliate of the Public Service Alliance of Canada (PSAC). With the advent of UCCO-SACC-CSN as bargaining agent, Mr. Lavigne was elected President of the local at the Drummond Institution.

[7]    Upon his arrival at the Drummond Institution, Mr. Lavigne worked a 5-2 schedule (5 days on, 2 days off) until the arrival of the inmates. Afterwards, the shifts changed to 8-hour workdays with varying schedules: 6-2, 6-3, 5-3 and 5-4, as well as 7-3, 7-4. Currently, Mr. Lavigne's substantive position is 8-hour shifts, 7-3, 7-4, but he has been acting in a CX-2 position with a 5-2 schedule on 7.5-hour shifts.

[8]    A new 12-hour shift was introduced late in 2000 or early in 2001; Mr. Lavigne is unsure of the exact date. According to Mr. Lavigne, 36 correctional officers work 12-hour shifts and approximately 74 are on the 7-3, 7-4 schedule.

[9]    The local's involvement was limited to setting the schedule with the employer. It was necessary to ensure that correctional officers worked an appropriate number of hours and to specify the beginning and end of shifts.

[10]    The introduction of 12-hour shifts resulted from an intervention at the national level, following discussions with the bargaining agent since 1999. The TD3 firm was hired to create different work schedules, including 12-hour shifts. Two "pilots" were set up: Cowansville was chosen for the Quebec region.

[11]    TD3 made presentations to the local and management. Both parties agreed to reject the proposed shifts and set up a 12-hour shift. This schedule was presented to the employer, which approved it.

[12]    Mr. Lavigne indicated that the notes and drafts regarding the meetings on this matter belonged to the former union and had been destroyed. The final product, the 12-hour shift, referred to as schedule 3-3 (3 days on, 3 days off), also includes a sequence of 9 days' rest every 9 weeks.

[13]    Correctional officers' compensation has not changed; they are paid every two weeks based on a 37.5-hour week whether they work 12-hour or 8-hour shifts.

[14]    Mr. Lavigne has not worked the 12-hour shift. He currently works Monday to Friday, 7.5 hours a day, 37.5 hours a week.

[15]    The employer did not cross-examine Mr. Lavigne.

[16]    Richard Pelletier has worked at the Correctional Service since 1977; he started at the Laval Institution. He accepted a transfer to Drummond at the CX-2 group and level in 1985. He has been Acting Supervisor for close to 5 years. Mr. Pelletier was union delegate for the USGE 5 or 6 years ago.

[17]    Mr. Pelletier was involved in the introduction of the 12-hour shift; he was the one who set up the schedules. Over the years, the Drummond Institution has had to change the work schedules to re-engineer or simplify the work by unit. There are 6 six buildings / units, and it was considered preferable for correctional officers to work in their own units. At the time, Mr. Pelletier had proposed a new roster, which was adopted. It made it easier to assign correctional officers in their respective units. That was in 1988 or 1989.

[18]    When the 12-hour shift project started, correctional officers and the administration were all interested. Since he had experience in the area, Mr. Pelletier offered his services. The local, through Sylvain Lavigne, was interested in having Mr. Pelletier's involvement.

[19]    Mr. Pelletier attended several meetings as Acting Correctional Supervisor. TD3's proposal did not meet employees' requirements and would have been difficult to manage. The proposal submitted by employees and the local seemed viable. Management's concern was to ensure that it all balanced and did not entail any additional costs.

[20]    The schedule presented at the Cowansville Institution by employees, which is now in place there, appears to be balanced and is not complicated.

[21]    The schedule applies to 18 officers and consists of 3 days on, followed by 3 days off. Every 8 or 9 weeks, there are 9 consecutive days off. This schedule eliminates fluctuations in shift durations.

[22]    As a correctional supervisor, Mr. Pelletier has managed leave for correctional officers based on both 12 and 8-hour shifts (7-3, 7-4). At this point, there are some 40 correctional officers on the 8-hour shift. Nothing has changed for correctional officers on the 8-hour shift in terms of sick or vacation leave credits. They are entitled to 1.25 days of sick leave per month (10 hours) and vacation leave entitlement is based on seniority. Their family leave consists of five 8-hour days. Before the 12-hour shifts were introduced, everything worked in days.

[23]    For correctional officers working 12-hour shifts, the employer credits 1.25 days for sick leave per month based on 7.5-hour days. Mr. Pelletier indicated that they work variable shifts and, in the collective agreement, one day equals 7.5 hours. Correctional officers on a 12-hour shift are debited 12 hours because they are on 12-hour shifts, whether for family, annual or sick leave.

[24]    Correctional officers on 8-hour shifts are debited their leave on the basis of 8-hour days, as before.

[25]    When he started setting up 12-hour shifts, Mr. Pelletier had to revise the holiday ratio, which is to say the number of people who could be on leave at any given time. The new ratio is three for 8-hour shifts and two for 12-hour shifts. This was what was discussed in regard to leave at the time. In the beginning, Mr. Pelletier and local management estimated that correctional officers were accumulating leave credits in the same way and with the same number of hours as on the 8-hour shift, which did not create any problems.

[26]    At one point, Mr. Pelletier does not recall exactly when, he was told to refer to the agreement on the 12-hour shifts, which identified correctional officers on 12-hour shifts and indicated that they were on variable hours of work. In the collective agreement, anything that is not in 8-hour shifts is variable hours of work. On variable hours of work, employees work 7.5 hours a day, and it is on that basis that leave credits are calculated. Mr. Pelletier had to write for and provide these clarifications on the 12-hour shifts. For Mr. Pelletier, the dilemma lies in the interpretation of the collective agreement. According to him, variable hours of work are equivalent to working Monday to Friday, 7.5 hours per day, 37.5 hours a week, whereas in shift work, there are three 8-hour shifts.

[27]    When he was the Correctional Supervisor in charge, Mr. Pelletier worked 8-hour shifts. Two years ago, he was transferred to a unit where he works 7.5-hour days, 5 days a week. His bank of forty 8-hour days, or 320 hours, was converted into forty 7.5-hour days. This was Mr. Pelletier's first experience with a conversion, and it happened at approximately the same time as the grievances. Mr. Pelletier does not know how things worked before.

[28]    The employer did not cross-examine Mr. Pelletier.

[29]    Serge Bouchard joined the Correctional Service on February 22, 1988, at the Leclerc Institution in Laval. He then moved to Port Cartier and to the Drummond Institution in September 1997.

[30]    At the Drummond Institution, Mr. Bouchard worked an 8-hour 7-3, 7-4 day, night, day, evening schedule.

[31]    Mr. Bouchard received sick leave credits based on 1.25 days or 10 hours per month. He was credited family leave based on 5 days or 40 hours per year, and his vacation leave on 20 days or 160 hours per year. The same calculation was used when he worked in the other institutions.

[32]    When he took sick leave, he was debited 8 hours, or one day per shift.

[33]    In 1996 or 1997, Mr. Bouchard spent a month in the visits department. His credit bank did not change. At the time, he was working an 8-hour 5-2 shift. Mr. Bouchard never worked 7.5-hour days.

[34]    Mr. Bouchard submitted his leave history for 2000-2001 as Exhibit S-2. Once a year, the employer sends each correctional officer his/her leave history. Mr. Bouchard agreed with the content of this document. He was credited 160 hours of vacation leave, 120 hours of sick leave and 40 hours of family leave. Mr. Bouchard showed that the leave he had used in 2000 and 2001 would be debited to him in 8-hour days.

[35]    Mr. Bouchard submitted his leave history for 2001-2002, which he had received in May 2002, as Exhibit S-3. He had started the year with 192 hours and was credited 152 hours of vacation leave. He was debited 120 hours of vacation leave, which he used during the year. Mr. Bouchard had a balance of 861 hours of sick leave at the beginning of the year; he was credited 127.5 hours and debited 172 hours, leaving him with a balance of 816.5 hours. In 2001-2002, Mr. Bouchard worked 12-hour shifts.

[36]    Mr. Bouchard pointed out that sick leave accumulates at 9.375 hours a month. On the fourth line from the end of the document, an annual allocation of 160 hours of vacation leave is indicated but, on the sixth line from the end, it is indicated that he was debited 10 hours for adjustments in the 12-hour schedule / 37.5 hours. Although the adjustment dates back to April 9, 2001, when he started the 12-hour shifts, it actually happened much later. He does not know when it happened. Mr Bouchard learned about it from a colleague and received his history around May 2002.

[37]    When he took 3 days of vacation leave, starting on May 24, 2001, he was debited 36 hours, and when he took a day of sick leave on August 4, he was debited 12 hours.

[38]    Mr. Bouchard submitted his 2002-2003 leave history as Exhibit S-4. The sick leave balance of 762.687 hours indicated for the beginning of the year is different from the closing balance at the end of the previous year indicated in Exhibit S-3. On the last line of page 2, Mr. Bouchard showed that on April 1, 2002, he was debited 53.813 hours of sick leave that he had before working the 12-hour shifts. He pointed out that the allocation of 20 days of vacation leave is shown as 150 hours.

[39]    Mr. Bouchard found out about Exhibit S-4 when he obtained access to the People Soft computer program. Correctional officers obtained access to their leave bank on computer in the fall of 2002. That was where Mr. Bouchard found out that he had been debited 53.813 hours of sick leave. He asked a union representative what it was about and was told that the employer was removing 0.5 hours for each day accumulated before the 12-hour shifts came into effect.

[40]    Mr. Bouchard submitted Exhibit S-5, a document similar to the previous ones and entitled "État du compte et rapport sur les congés" [leave status and report] for 2003-2004. Mr. Bouchard is still working 12-hour shifts.

[41]    The employer did not cross-examine the witness.

[42]    The parties submitted, by agreement, the grievors' leave history as follows:

Exhibit S-6	Leave history for Carol Gilbert - 2000 2001
Exhibit S-7	Leave history for Carol Gilbert - 2001 2002
Exhibit S-8	Leave history for Carol Gilbert - 2002 2003
Exhibit S-9	Leave status and report for Carol Gilbert - 2003 2004
Exhibit S-10	Leave history for Richard Robidoux - 2000-2001
Exhibit S-11	Leave history for Richard Robidoux - 2001-2002
Exhibit S-12	Leave history for Richard Robidoux - 2002-2003
Exhibit S-13	Leave status and report for Richard Robidoux - 2003-2004
Exhibit S-14	Leave history for Daniel Letendre - 2000-2001
Exhibit S-15	Leave history for Daniel Letendre - 2001-2002
Exhibit S-16	Leave history for Daniel Letendre - 2002-2003
Exhibit S-17	Leave status and report for Daniel Letendre - 2003-2004
Exhibit S-18	Leave history for Roger Gignac - 2000-2001
Exhibit S-19	Leave history for Roger Gignac - 2001-2002
Exhibit S-20	Leave history for Roger Gignac -2002-2003
Exhibit S-21	Leave status and report for Roger Gignac - 003-2004

[43]    The parties agreed to submit a joint statement of facts (Exhibit E-1). Page E1(a) is the list of admissible Exhibits S-1 to S-21 (F-1 to F-21 corresponds to Exhibits S-1 to S-21) and part E1(b) reads as follows:

[Translation]

Joint statement of facts:

1. Carol Gilbert has been a correctional officer at level 1 at the Correctional Service of Canada since August 1983. He works at the Drummondville Institution;

2. Since his arrival at the Drummondville Institution, Mr. Gilbert has averaged thirty-seven and a half (37.5)-hour work weeks. He is paid every two weeks for seventy-five (75) hours of work;

3. Between his arrival at the Drummondville Institution and April 9, 2001, Mr. Gilbert worked rotating eight (8)-hour shifts;

4. Between April 1, 2000, and March 31, 2001, Mr. Gilbert worked part-time, 32 hours a week, rotating eight (8)-hour shifts;

5. In 2000-2001, Mr. Gilbert was credited sick leave at eight (8) hours per month on his eight (8)-hour shift schedule, which took into account his 32-hour per week schedule, as presented in Exhibit F-6, appended;

6. While working eight (8)-hour shifts, Mr. Gilbert was debited eight (8) hours from his sick leave bank for each day of sick leave that he took, as indicated in Exhibit F-6, appended;

7. At April 1, 2000, while working eight (8)-hour shifts, Mr. Gilbert was credited one hundred and twenty-eight (128) hours of vacation leave, the number having been adjusted to his schedule of 32 hours a week, as indicated in Exhibit F-6, appended;

8. While working the eight (8)-hour shifts, Mr. Gilbert was debited eight (8) hours of vacation leave from his vacation leave bank for each day of vacation leave that he took, as indicated in Exhibit F-6;

9. At April 1, 2000, while working eight (8)-hour shifts, Mr. Gilbert was credited twenty-eight and a half (28.5) hours of family leave, which took into account his 32-hour per week schedule, as indicated in Exhibit F-6, appended;

10. While working eight (8)-hour shifts, Mr. Gilbert was debited eight (8) hours' leave from his family leave bank for each day of family leave that he took, as indicated in Exhibit F-6;

11. Since April 9, 2001 and without interruption to date, Mr. Gilbert has worked, on average, twelve (12) hours a day, thirty-seven and a half (37.5) hours per week, with no change in the method of compensation;

12. Since April 9, 2001, Mr. Gilbert has received one sick leave credit at 9.375 hours per month on his leave report if he was paid for 10 days in the month, as indicated in Exhibits F-6, F-7 and F-8;

13. Since April 9, 2001, Mr. Gilbert has been debited twelve (12) hours from his sick leave bank for every day of sick leave that he took, as indicated in Exhibits F-6, F-7 and F-8;

14. On April 1, 2001, Mr. Gilbert was credited 166.7 hours of vacation leave, as indicated in Exhibit F-7;

15. Since April 9, 2001, Mr. Gilbert has been debited twelve (12) hours from his vacation leave bank for each day of vacation leave that he took, as indicated in Exhibits F-7, F-8 and F-9;

16. On April 1, 2002, Mr. Gilbert was credited thirty-seven and a half (37.5) hours of family leave, as indicated in Exhibits F-8 and F-9;

17. Since April 9, 2001, Mr. Gilbert has been debited twelve (12) hours from his family leave bank for every day of family leave that he took, as indicated in Exhibits F-7, F-8 and F-9;

18. On April 1, 2002, the employer debited 3.875 hours from Mr. Gilbert's sick leave bank, as indicated in Exhibit F-7;

19. Since November 2002, correctional officers at the Drummondville Institution have been able to consult their leave history electronically.

20. Once he was able to consult the electronic system, Mr. Gilbert found out that the employer had debited the hours indicated in paragraph 18 from his leave bank, which led to these grievances.

Joint statement of facts:

21. Richard Robidoux has been a correctional officer at level 1 at the Correctional Service of Canada since July 1981. He works at the Drummondville Institution;

22. Since his arrival at the Drummondville Institution, Mr. Robidoux has averaged thirty-seven and a half (37.5)-hour work weeks. He is paid every two weeks for seventy-five (75) hours of work;

23. Between his arrival at the Drummondville Institution and October 1, 2001, Mr. Robidoux worked rotating eight (8)-hour shifts;

24. While working the eight (8)-hour shifts, Mr. Robidoux was credited ten (10) hours per month for sick leave on his leave record, as indicated in Exhibit F-10, appended;

25. While working eight (8)-hour shifts, Mr. Robidoux was debited eight hours from his sick leave bank for each day of sick leave that he took, as indicated in Exhibit F-10, appended;

26. While working eight (8)-hour shifts, Mr. Robidoux was credited two hundred (200) hours for vacation leave on April 1 of each year, as indicated in Exhibit F-10, appended;

27. While working eight (8)-hour shifts, Mr. Robidoux was debited eight (8) hours from his vacation leave bank for each day of vacation leave that he took, as indicated in Exhibit F-10;

28. While working eight (8)-hour shifts, Mr. Robidoux was credited forty (40) hours of family leave on April 1 of each year, as indicated in Exhibit F-10, appended;

29. While working eight (8) hours per day, Mr. Robidoux was debited eight (8) hours from his family leave bank for each day of family leave that he took, as indicated in Exhibit F-10;

30. Since October 1, 2001 and without interruption to date, Mr. Robidoux has worked, on average, twelve (12) hours a day, thirty-seven and a half (37.5) hours per week, with no change in the method of compensation;

31. Since October 1, 2001, Mr. Robidoux has been credited 9.375 hours per month for sick leave on his leave report if he was paid for 10 days in the month, as indicated in Exhibits F-11, F-12 and F-13;

32. Since October 1, 2001, Mr. Robidoux has been debited twelve (12) hours from his sick leave data bank for every day of sick leave that he took, as indicated in Exhibits F-11, F-12 and F-13;

33. On April 1, 2001, Mr. Robidoux was credited two hundred (200) hours for vacation leave, which the employer reduced by 3.5 hours on September 4, 2001, as indicated in Exhibit F-11;

34. On April 1, 2002, and April 1, 2003, Mr. Robidoux was credited one hundred and eighty-seven and a half hours (187.5) of vacation leave, as indicated in Exhibits F-12 et F-13;

35. Since October 1, 2001, Mr. Robidoux has been debited twelve (12) hours from his vacation leave bank for every day of vacation leave that he took, as indicated in Exhibits F-11, F-12 and F-13;

36. Since April 1, 2002, Mr. Robidoux has been credited thirty-seven and a half (37½) hours of family leave, as indicated in Exhibits F-12 and F-13;

37. Since October 1, 2001, Mr. Robidoux has been debited twelve (12) hours of family leave for every day of family leave that he took, as indicated in Exhibits F-11, F-12 and F-13;

38. On April 1, 2002, the employer debited 39.250 hours from Mr. Robidoux's sick leave bank, as indicated in Exhibit F-12;

39. Since November 2002, correctional officers at the Drummondville Institution have been able to consult their leave history electronically.

40. Once he was able to consult the electronic system, Mr. Robidoux found out that the employer had debited the hours indicated in paragraph 38 from his leave bank, which led to these grievances.

Joint statement of facts:

41. Daniel Letendre has been a correctional officer at level 1 at the Correctional Service of Canada since September 1993. He works at the Drummondville Institution;

42. Since his arrival at the Drummondville Institution, Mr. Letendre has averaged thirty-seven and a half (37½) hour work weeks. He is paid every two weeks for seventy-five (75) hours of work;

43. Between his arrival at the Drummondville Institution and April 9, 2001, Mr. Letendre worked rotating eight (8)-hour shifts;

44. While working the eight (8)-hour shifts, Mr. Letendre was credited sick leave at ten (10) hours per month on his leave report, as indicated in Exhibit F-14, appended;

45. While working the eight (8)-hour shifts, Mr. Letendre was debited eight (8) hours from his sick leave bank for each day of sick leave that he took, as indicated in Exhibit F-14, appended;

46. While working the eight (8)-hour shifts, Mr. Letendre was credited one hundred and twenty (120) hours of vacation leave on April 1 of each year, as indicated in Exhibit F-14, appended;

47. While working the eight (8)-hour shifts, Mr. Letendre was debited eight (8) hours from his vacation leave bank for each day of vacation leave that he took, as indicated in Exhibit F-14;

48. While working the eight (8)-hour shifts, Mr. Letendre was credited forty (40) hours family leave on April 1 of each year, as indicated in Exhibit F-14, appended;

49. While working the eight (8)-hour shifts, Mr. Letendre was debited eight (8) hours from his family leave bank for each day of family leave that he took, as indicated in Exhibit F-14;

50. Since April 9, 2001 and without interruption to date, Mr. Letendre has worked, on average, twelve (12) hours a day, thirty-seven and a half (37.5) hours per week, with no change in the method of compensation;

51. Since April 9, 2001, Mr. Letendre has received sick leave credit at 9.375 hours per month on his leave report if he was paid for 10 days in the month, as indicated in Exhibits F-15, F-16 and F-17;

52. Since April 9, 2001, Mr. Letendre has been debited twelve (12) hours from his sick leave bank for every day of sick leave that he took, as indicated in Exhibits F-15, F-16 and F-17;

53. On April 1, 2001, Mr. Letendre was credited one hundred and thirty-six (136) hours of vacation leave, as indicated in Exhibit F-15;

54. On April 1, 2002, and April 1, 2003, Mr. Letendre was credited one hundred and fifty (150) hours of vacation leave, as indicated in Exhibits F-16 and F-17;

55. Since April 9, 2001, Mr. Letendre has been debited twelve (12) hours of vacation leave from his vacation leave bank for each day of vacation leave that he took, as indicated in Exhibits F-15, F-16 and F-17;

56. Since April 9, 2001, Mr. Letendre has been credited thirty-seven and a half (37½) hours of family leave, as indicated in Exhibits F-15, F-16 and F-17;

57. Since April 9, 2001, Mr. Letendre has been debited twelve (12) hours from his family leave bank for each day of family leave that he took, as indicated in Exhibits F-15, F-16 and F-17;

58. On April 1, 2002, the employer debited 11.250 hours from Mr. Letendre's sick leave bank, as indicated in Exhibit F-16;

59. Since November 2002, correctional officers at the Drummondville Institution have been able to consult their leave history electronically.

60. Once he was able to consult the electronic system, Mr. Letendre found out that the employer had debited the hours indicated in paragraph 58 from his leave bank, which led to these grievances.

Joint statement of facts:

61. Roger Gignac has been a correctional officer at level 1 at the Correctional Service of Canada since August 2000. He works at the Drummondville Institution;

62. Since his arrival at the Drummondville Institution, Mr. Gignac has averaged thirty-seven and a half (37 ½) hours per week. He is paid every two weeks for seventy-five (75) hours of work;

63. Between his arrival at the Drummondville Institution and April 9, 2001, Mr. Bouchard worked rotating eight (8)-hour shifts;

64. Between August 2000 and April 9, 2001, Mr. Gignac did not take any sick leave, family leave or vacation leave. He was credited for his leave in hours, as indicated in Exhibit F-18;

65. Since April 9, 2001, and without interruption to date, Mr. Gignac has worked, on average, twelve (12) hours a day, thirty-seven and a half (37.5) hours per week, with no change in the method of compensation;

66. Since April 9, 2001, Mr. Gignac has received sick leave credit at 9.375 hours per month on his leave report if he was paid 10 days a month, as indicated in Exhibits F-19, F-20 and F-21;

67. Since April 9, 2001, Mr. Gignac has been debited twelve (12) hours from his sick leave bank for every day of sick leave that he took, as indicated in Exhibits F-19, F-20 and F-21;

68. Since April 9, 2001, Mr. Gignac has been credited one hundred and twelve and a half (112.5) hours of vacation leave, as indicated in Exhibits F-19, F-20 and F-21;

69. Since April 9, 2001, Mr. Bouchard has been debited twelve (12) hours from his vacation leave bank for every day of vacation leave that he took, as indicated in Exhibits F-19, F-20 and F-21;

70. Since April 9, 2001, Mr. Gignac has been credited thirty-six and a half (36) hours of family leave, as indicated in Exhibits F-19, F-20 and F-21;

71. Since April 9, 2001, Mr. Gignac has been debited twelve (12) hours from his family leave bank for every day of family leave that he took, as indicated in Exhibits F-19, F-20 and F-21;

72. On February 13, 2003, the employer debited 3.218 hours from Mr. Gignac's sick leave bank, as indicated in Exhibit F-20;

73. Since November 2002, correctional officers at the Drummondville Institution have been able to consult their leave history electronically.

[Sic for entire quotation]

[44]    The employer called only one witness, Françoise Nittolo, Regional Manager, Compensation and Benefits, Regional Headquarters, Laval. Ms. Nittolo has been in that position since February 27, 1984.

[45]    Ms. Nittolo explained her duties, which involve ensuring that the employer's rules and directives are applied to the compensation and benefits program for all employees of the Correctional Service of Canada.

[46]    Ms. Nittolo is familiar with the leave history forms and the People Soft system. This system was introduced in 1995 and has since evolved. Certain entries are made manually by the individuals responsible for maintaining the leave records, while others are done automatically by the system. Based on some of the data, such as classification group and level, hours of work and start dates, the system anticipates the vacation leave credits at the beginning of each fiscal year and credits sick leave each month. Use of leave and special codes indicating that "employee X" is not working an 8-hour shift are entered manually.

[47]    For correctional officers, the system automatically sets the week at 40 hours. Code S08 indicates that the correctional officer no longer works 8-hour shifts; in that case, the system determines that a week of leave is 37.5 hours and credits are established based on that. For correctional officers working 12-hour shifts, all credits will be determined based on a 37.5-hour week or 7.5 hours per day. Sick leave credits, which are 1.25 days at 7.5 hours, are equivalent to 9.375 hours.

[48]    Ms. Nittolo explained that, before 1994, all leave was credited and debited in days. Once the new computer system was introduced, it switched to work weeks for correctional officers who worked 8-hour days. The system started with the 40-hour work week instead of 37.5 hours. The leave bank of correctional officers was multiplied by 8 hours instead of 7.5. When a correctional officer left an 8-hour shift, the leave bank was reconverted into days and was then multiplied by 7.5 in order to be consistent with the 37.5 hours.

[49]    The adjustment has been in effect since April 1, 1993. At that time, there were no variable hours of work for correctional officers. A wage freeze was in force until 1996. Correctional officers working 12-hour shifts had their leave bank brought to 7.5 hours per day. It was on April 1, 1993, that credits for 8-hour shifts started to be converted to 7.5. A reverse conversion in leave credits had to be done for correctional officers who returned to 8-hour shifts.

[50]    The conversion of the leave credit bank is done locally by the employee assigned to maintain the leave records in the penitentiary. That same employee records the debits and credits in the system.

[51]    As far as Ms. Nittolo was aware, the change in the system started in April 2001 for the 12-hour shift. Ms. Nittolo recognized Exhibit S-4 as a leave report for a correctional officer, in this case Serge Bouchard. She explained that code 299 on the last line of the document indicates that the balance reported for a previous year had been modified. The negative value of 53.813 means a conversion in the sick leave days that the correctional officer had in the leave bank at the time he changed his work schedule.

[52]    On April 9, 2001, when Mr. Bouchard started working other than an 8-hour shift, his sick leave bank was 861 hours. This figure was divided by 8 to determine the number of days acquired and multiplied by 7.5. From 861 hours, his bank fell by 53.813 hours to equate to the same number of 7.5-hour days. This adjustment occurred on October 24, 2002. It should have occurred on April 9, 2001, or around August 20, 2001, the date when code S08 came into effect.

[53]    Ms. Nittolo pointed to page 2 in Exhibit S-3, where a code S08 indicates that the 8-hour shift was not worked on April 9, 2001. This entry is provided for information purposes. It indicates to the system that the work week for leave purposes is equivalent to 37.5 hours. This entry was made on August 20, 2001, by the employee assigned to leave. Code 100 indicates vacation leave.

[54]    In Exhibit S-3, at April 1, 2001, the system recognized the 40-hour week and allocated vacation leave credits of 160 hours for 2001-2002. Since, as of April 9, 2001, the work week was 37.5, vacation leave credits were reduced by 10 hours, bringing the credits to 150 hours, which is equivalent to twenty 7.5-hour days. This happened in August 2001. Code A03 in Exhibits S-4 and S-5 indicates that the anticipated vacation leave credits were 150 hours.

[55]    Code A02 refers to sick leave credits. Code 200 is used for a correction in sick leave credits, whether positive or negative. An additional credit is allocated to employees on rotation who used 1/16^th or 1/17^th of a day of sick leave. Code 210 indicates the use of sick leave without a certificate, 220 is with a certificate and 230 indicates sick without pay or work-related accident without pay.

[56]    Family leave is not accumulated. The codes are 410, 420 or 430 depending on the nature of the leave. There is an annual allocation for each fiscal year.

[57]    The parties agreed that, if Ms. Nittolo were to look at the other leave documents, she would note situations similar to that which she reported for Mr. Bouchard's leave conversion.

[58]    Under cross-examination, Ms. Nittolo confirmed that she has been doing the same work since 1984, and that correctional officers working 8-hour shifts were paid for 37.5 hours per week during that whole time, never 40 hours per week.

[59]    Ms. Nittolo indicated that, in the past, the leave records had been updated manually. The information was recorded in days. Treasury Board statements on the use of leave were made in hours. At March 31, 1993, leave banks were converted based on one day's being equivalent to 8 hours as a result of an adjustment for the CX group. Ms. Nittolo believes that code S08 was created in 2000. Originally, it was supposed to identify correctional officers who worked 8-hour shifts but, because 95% of correctional officers worked 8-hour shifts, its use had changed to identify those who did not, which is to say the exceptions who worked 7.5-hour shifts or 12-hour shifts.

[60]    It was Ms. Nittolo's understanding that variable shifts were introduced in the last collective agreement for correctional officers (Exhibit S-1). There may have been some in the PSAC master agreement (Exhibit S-22).

[61]    The specific collective agreement for PSAC correctional officers, signed on May 18, 1989, was presented as Exhibit S-23, and the one preceding Exhibit S-1 was presented as Exhibit S-24.

Grievors' arguments

[62]    The first type of grievances, those of Mr. Bouchard (File no. 166-2-32431), Mr. Gilbert (File no. 166-2-32433) and Mr. Letendre (File no. 166-2-32437), concerned the interpretation and application of the collective agreement in the allocation of leave credits based on a change from 8-hour shifts to 12-hours shifts.

[63]    The evidence shows that this change came into effect on April 9, 2001, for the three correctional officers who presented these grievances. These three correctional officers had been working 8-hour shifts for an average 37.5 hours a week since the beginning of their employment.

[64]    This 8-hour shift schedule is a requirement at Correctional Service since it needs correctional officers on duty 24 hours a day. In this regard, Ms. Nittolo testified that 95% of correctional officers worked 8-hours shifts for an average 37.5 hours a week. This had been in the collective agreement since at least 1989.

[65]    The text has not changed to date; it is found in sub-clause 21.02(a), page 25, of Exhibit S-1.

[66]    Under this arrangement, the evidence shows that 1.25 days of sick leave were allocated for each calendar month for every 10 days of pay in that month: see clause 31.01 in Exhibit S-1, section M22.01 in Exhibit S-22 and clause 31.01 in Exhibit S-24. Sick leave is allocated the same way under the three collective agreements.

[67]    The evidence shows that, since 1993, for computer-related administrative reasons, Correctional Service in the Quebec Region started converting days into hours. Correctional officers working 8-hour shifts received sick leave credits equivalent to 1.25 days or 10 hours. The employer admits this, and it is reflected in Mr. Bouchard's leave history (Exhibit S-2). The same applies to Mr. Gilbert, as indicated in Exhibit S-6. However, since the latter worked part-time for 32 hours a week, he was credited 8 hours of leave, or 80% of the usual credit. For Mr. Letendre, Exhibit S-14 shows that his situation was the same as that of Mr. Bouchard.

[68]    According to this, when allocating leave, the employer did not make a distinction between employees working 7.5-hour or 8-hour shifts. One day was equivalent to one day of work for both.

[69]    There was no change with respect to sick leave. Regardless of whether employees worked 7.5-hour or 8-hour shifts, one day was still equivalent to one day.

[70]    With respect to family leave credits, all of the collective agreements that were tabled indicated that five days would be allocated at the beginning of the year. In the previous collective agreement (Exhibit S-22), this appears in Article M21.09, page 46. In the current collective agreements (Exhibits S-24 and S-1), it is in clause 30.15, and there is no major change; 5 days are always converted into 40 hours, as reflected by Exhibits S-2 and S-14 for Mssrs. Bouchard and Letendre. In Mr. Gilbert's case, the credits are adjusted based on his 32-hour week.

[71]    Vacation leave credits vary based on seniority, but are allocated in days in the collective agreements that were tabled. In Exhibit S-23, which is the collective agreement specific to CXs, it appears in Article 15. In the other two Exhibits (S-24 and S-1), the allocation of vacation leave is set out in clause 29.02.

[72]    The bargaining agent referred to the second-to-last line in Exhibit S-2 to show that Mr. Bouchard was allocated the 160 hours of vacation leave to which he was entitled. Mr. Gilbert (Exhibit S-6) was allocated 128 hours because of his 32-hour week. In Mr. Latendre's case (Exhibit S-14), 120 hours correspond to the number of days to which he was entitled.

[73]    The preceding describes the manner of allocating vacation leave to the grievors when they worked 8-hour shifts. This is the same method currently used to allocate leave for correctional officers working 8-hour shifts at the Drummond Institution, as provided under the collective agreement.

[74]    It is also evident that, prior to April 9, 2001, the 7.5-hour schedules were daily schedules based on 5 days a week. Most correctional officers work 8-hour shifts. What the employer did in this case was to amend the shift schedule from rotating 8-hour shifts to 12-hour shifts. Should this change the allocation of leave? The question could be put as to whether the change in schedules constitutes variable hours of work, which is what the employer claims.

[75]    The testimony provided by Mssrs. Lavigne and Pelletier reveals that only scheduling and pilot project issues were discussed during the schedule change. At the Drummond Institution, there was no discussion about distinctions between variable hours of work and modified schedules.

[76]    In and of itself, the expression "variable hours of work" indicates a certain variation in hours of work. This is what Article 34 addresses. The title says so and the first sentence of General Terms says: "The scheduled hours of work of any day as set forth in a work schedule, may exceed or be less than the regular workday hours specified by this agreement (...)" The normal work day is not defined in the collective agreement, not even in Article 21 of Exhibit S-1.

[77]    The normal work day is not defined and Article 34, which was integrated into the collective agreement, comes from the master agreement, which applied to people working days. If the work day is not defined, one may deduce that the normal work week is 37.5 hours and the normal work day is 7.5 hours.

[78]    In the case of the grievances, the shift schedule was modified from 8-hour shifts to 12-hour shifts. These are neither a normal nor a regular schedule, but rather irregular or rotating schedules covered in clause 21.02. Changes to the schedule of clause 21.02 are covered in sub-clause 21.03(b), page 26.

[79]    The grievors have been working 12-hour shifts since 2001. Discussions were held with the local to change their schedule; this was the focus of the discussions, as reflected in Mr. Pelletier's testimony.

[80]    It was much later, after the new schedule was established, that questions started coming up and the employer started talking about variable hours of work. When Ms. Nittolo testified about code S08, she said that, in her view, this code should have been set up before, whereas in fact it was set up much later. Credits were reduced later; on March 15, 2002, sick leave credits were reduced. While the schedule had been in place since April, the questions only started in August. It was only afterwards that it was decided that this situation constituted variable hours of work.

[81]    But if it is just a matter of a modified schedule, the substantive rights in the collective agreement, set in days in Articles 29, 30 and 31, remain unchanged. The same applies for the 5 days for family leave, 15 days for sick leave and 15 or 20 days for vacation leave, depending on seniority.

[82]    Since the collective agreement does not define the term "day", it retains its common meaning of a 24-hour period. Hence, a day equals 12 hours for the allocation of leave when the work day is 12 hours. What the grievors want, in the case of sick leave, is 1.25 days of 12 hours or 15 hours of leave. This follows the same logic as before because sick leave credits are accumulated in days, not in hours. A correctional officer who is sick has his/her leave bank debited in days, as well. This is how the employer has operated since it established shift schedules.

[83]    The grievors referred to Phillips v. Treasury Board (Transport Canada), PSSRB file 166-2-20099 (1991) (QL), which addresses family leave for shift workers on a 42-hour week. The grievance arbitrator allowed them a day for a day. Another case cited was King v. Canada Customs and Revenue Agency, 2001 PSSRB 117. Schedule modifications are not handled the same way. There were 7.5-hour, 9-hour and 10-hour shifts. Credits were converted, but it was not specified how and what the value was. Since the term "work day" is not defined, the grievance adjudicator used the definition of day worked according to the schedule. This decision was appealed to the Federal Court, which upheld the grievance adjudicator's decision.

[84]    Article 34 applies to variable hours of work, which was referred to as a legal fiction that does not change the rights set out in the collective agreement as such.

[85]    The grievors then argued that, if this was a case of variable hours of work, the acquired rights could not be transposed by saying that a day equals 7.5 hours, when in fact it is the rotating schedule that is transposed into variable hours of work, not the regular schedule. The article is ambiguous from the outset because a normal day of work is not defined.

[86]    The grievors referred to Article 34 and to part 2, page 70: "Where the agreement refers to a "day", it shall be converted to hours in accordance with Article 21 of this agreement."

[87]    Article 21 refers to employees working 8-hour shifts. This suggests that 8-hour days are to be converted from days into hours.

[88]    There is a conversion table for 7.5 hours but not for 8-hour shifts, which would be converted into variable hours of work.

[89]    It was not the parties' intent, when the option of variable hours of work was introduced into the collective agreement, to change the rights of the employees working shifts. In Article 21, 8-hour shifts are being converted since that is the starting point.

[90]    Article 34 refers to Article 29 for vacation leave and to Article 31 for sick leave. There is no mention of family leave. There is no provision for correctional officers to lose their rights as a result of the conversion of days into hours. Correctional officers cannot lose that which they already have.

[91]    There cannot be two sets of rights for the same employees who work shifts or variable hours of work.

[92]    The grievors referred to White v. Treasury Board (Correctional Service of Canada), 2003 PSSRB 40, in which the grievance adjudicator interpreted a designated holiday in connection with variable hours of work as being 8 hours. They also referred to Diotte v. Treasury Board (Correctional Service of Canada), 2003 PSSRB 74, in which the issue related to variable hours of work and a designated holiday paid in connection with sick leave. A correctional officer had taken sick leave when he has supposed to work on a designated holiday, and the grievance adjudicator allocated a value of 8 hours to that day.

[93]    In the second type of grievance, those of Mr. Bouchard (166-2-32430), Mr. Gilbert (166-232434), Mr. Gignac (166-232438) and Mr. Robidoux (166-2-32436), what was contested was the conversion of sick leave credits acquired before the schedules were modified from 8 to 12 hours.

[94]    In Mr. Bouchard's case, one must refer to Exhibits S-3 and S-4, in which the bank conversion of sick leave acquired before the change in schedule resulted in a debit of 53.813 hours.

[95]    In Mr. Gilbert's case, one must refer to Exhibits S-7 et S-8. The conversion method is described by Ms. Nittolo, where the closing balance of 65.5 was reduced to 61.625 and he lost 3.875 hours.

[96]    In Mr. Robidoux's case, Exhibits S-11 and S-12 show a closing balance of 651.25 hours and opening in Exhibit S-12 at 612 hours, which accounts for the cut of 39.25 hours.

[97]    In Mr. Gignac's case, Exhibits S-19 and S-20 show the difference of 3.218 hours in Exhibit S-20, on the sixth line of page 1 in February 2003. Exhibit S-19 shows a closing balance of 163.920 hours, which are carried over in Exhibit S-20 as 160.702 hours.

[98]    The grievors are seeking to have their leave banks restored. They argue, first of all, that this is not a case of variable hours of work, so there is no reason to debit anything.

[99]    In the case of variable hours of work, the cut should not take place under the provisions of paragraph 3 of Article 34. Leave acquired in hours need not be converted. Days that were previously acquired are not new 7.5-hour days. The banks should remain as they were. According to the grievors, paragraph 3 of Article 34 would be redundant in their case. This paragraph would only be applicable in the future, if they reverted to normal weekly hours of work.

Employer's arguments

[100]    It was while the arguments were being presented that the employer found out that the issue of variable hours of work was in question. The employer had been under the impression that the two parties had agreed when the facts on this issue were being clarified for the grievance adjudicator.

[101]    The employer referred to the text of the grievances, which refers to Article 34 in the redress requested:

[Translation]

I ask that, if these carried-over days have to be converted into hours, they retain the value of 8 hours per day that they always had. Article 34 (first paragraph)

and

I ask that paragraph 4 of Article 34 of the collective agreement be followed, and this for the entire current fiscal year (i.e. 2002-2003). The number of hours credited and debited must be the same.

[102]    The grievances mention Article 34, and the bargaining agent did not request that the grievances be amended. The employer maintains that, pursuant to the principles set out in Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), the grievors may not amend the nature of their grievance, especially once all the evidence has been heard.

[103]    Based on the evidence presented, the employer argues that this is a matter of procedural justice. An adjournment was granted to enable the employer to re-open his evidence on this point.

[104]    The employer argues that the issues in dispute touch employees subject to variable hours of work. The question that must be answered, as the text of the grievances indicate, is whether the employer contravened paragraph 3 of Article 34 and paragraph 4 of Article 34 of the collective agreement.

[105]    Based on the evidence, it must be decided whether the employer correctly adjusted the accumulated annual and sick leave for Mssrs. Bouchard, Gilbert, Gignac and Robidoux. The employer adjusted these employees' leave banks starting from the day when they began their variable hours of work schedule.

[106]    The testimony provided by Ms. Nittolo and the documents referred to by the grievors in their arguments, Exhibits S-4 to S-20 for the four grievors, are the irrefutable evidence that a conversion of accumulated hours into days, based on 8-hour days, occurred to reconvert these days into 7.5-hour days. This was correctly done since it was pursuant to Article 34.

[107]    Second, did the employer correctly give Mssrs. Bouchard, Gilbert and Letendre their annual, sick and family leave, after they started variable hours of work, at 7.5 hours per day and then debited 12 hours after they took leave while working 12 hours according to their schedule?

[108]    The answer to these questions lies in Article 34, because it applies to variable hours of work and becomes a specific schedule. The preamble to Article 34 states:

The Employer and the bargaining agent agree that the following conditions shall apply to employees for whom variable hours of work schedules are approved pursuant to the relevant provisions of this collective agreement. The agreement is modified by these provisions to the extent specified herein.

[109]    It is clear that the collective agreement was amended when the employer introduced the variable hours of work. This is the analysis that was followed by the grievance arbitrator in White (supra). In this decision, the issue concerned a designated paid holiday in connection with a variable hours of work situation. The employer suggests the same approach in relation to Article 34 and the specific provisions concerning leave.

[110]    To determine whether paragraph 3 of Article 34 has been violated, one must refer to the first part of this paragraph:

Effective the date on which this article applies to an employee, the accrued leave credits shall be converted from days to hours.

[111]    It is evident here and the title "Implementation/Termination" indicates that this concerns a conversion. "Effective the date on which this article applies [...]" means the moment when the correctional officer becomes subject to variable hours of work, and "the accrued leave credits shall be converted from days to hours" refers to credits acquired under another plan.

[112]    The employer indicated that this interpretation was confirmed by the second paragraph, which states: "a change to the normal weekly hours of work for an employee will require that the accrued hourly credits be reverted to days and recalculated at the changed conversion rate." It is clear that at the outset there is conversion into hours and at the end, conversion into days.

[113]    At what rate should the conversion be done? This is set out in paragraph 4 of Article 34, second subparagraph: "All leave provisions which specify days in this collective agreement shall be converted to hours as follows:" and there is a table establishing the ratio of 7.5 hours per day. This is what the employer did during the conversion; it followed the conversion rate set out in the collective agreement. Ms. Nittolo confirmed that, when a correctional officer returns to the 8-hour schedule, the same conversion is done in reverse, as provided in paragraph 3 of Article 34.

[114]    With respect to the second issue in dispute, regarding at which rate leave should be allocated in the grievances filed by Mssrs. Bouchard, Gilbert and Letendre, one must again turn to the specific provisions of paragraph 4 of Article 34, first subparagraph: "When leave is granted, it will be granted on an hourly basis and the hours debited for each day of leave shall be the same as the hours the employees would normally have been scheduled to work on that day." It is clear that 12 hours apply to a 12-hour shift when leave is taken; hence, this is in compliance with paragraph 4 of Article 34 with regard to the debits.

[115]    What is the grievors' hourly entitlement per day of leave? This involves working out the mechanics of paragraph 4 of Article 34 and paragraph 5 of Article 34. The employer refers to annual leave and sick leave. In this regard, paragraph 5 of Article 34 specifies that it is at the same rate as that prescribed in Article 29 for annual leave and as that in Article 31 for sick leave.

[116]    To determine their entitlement in days of leave, one must turn to Articles 29 and 31, which are the provisions applicable to leave in this collective agreement. Then, paragraph 4 of Article 34, second subparagraph, sets out the provisions with respect to the manner in which days are converted into hours based on the table provided.

[117]    It is evident that one must refer to these provisions for the conversion since the table carefully sets out the fractions of days, and Articles 29 and 31 indicate that fractions of days are involved in the acquisition of this leave.

[118]    For family leave, one must refer to paragraph 4 of Article 34, a general provision for determining the value. This article, entitled "Leave-General", applies to all leave that is measured in days, including family leave.

[119]    Additional details are provided in paragraph 5 of Article 34 with respect to annual and sick leave, and there is an additional specification concerning rounding off. This does not change the generality of the conversion table provided in paragraph 4 of Article 34, which applies to all leave.

[120]    In King (supra), which deals with family leave, the relevant part is paragraph 22. In the collective agreement in that case, there is an inconsistency, for in paragraph 4 of Article 34, the reference is to all leave specified in days in the collective agreement.

[121]    The employer points out that the application of the interpretation of 24 hours in King (supra) refers to the distinction made by the grievance adjudicator in White (supra), at paragraph 39. In White, Article 34 is the same as in this case. The difference lies in an inconsistency in reference to "Designated Paid Holiday". This application or interpretation does not apply here, and White is undergoing a judicial review.

[122]    The employer asked that the conclusion be drawn that the collective agreement had not been contravened.

[123]    After the adjournment, I asked Sylvain Lavigne how correctional officers were placed on 12-hour schedules and what was their rate of overtime pay. His response was that correctional officers volunteered and, given the number of volunteers, they were selected based on seniority. They are paid time and three-quarters for all overtime work. I stated that these facts and those already in evidence indicated to me that the 12-hour shifts meet the criteria of Article 34 and constitute variable hours of work.

Grievors' response

[124]    In response, the grievors reiterated that the leave acquired had been in 8-hour days, and went from 8-hour shifts to 12-hour shifts.

[125]    Article 34 does not provide for the conversion of previously acquired credits in hours, as in this situation; this article addresses correctional officers on a work schedule.

Reasons for decision

[126]    The grievances concern the interpretation and application of paragraph 3 of Article 34 and paragraph 4 of Article 34 of the collective agreement.

[127]    Article 34 of the collective agreement is as follows:

ARTICLE 34

VARIABLE HOURS OF WORK

The Employer and the bargaining agent agree that the following conditions shall apply to employees for whom variable hours of work schedules are approved pursuant to the relevant provisions of this collective agreement. The agreement is modified by these provisions to the extent specified herein.

It is agreed that the implementation of any such variation in hours shall not result in any additional expenditure or cost by reason only of such variation.

1. General Terms

The scheduled hours of work of any day as set forth in a work schedule, may exceed or be less than the regular workday hours specified by this agreement; starting and finishing times, meal breaks and rest periods shall be determined according to operational requirements as determined by the Employer and the daily hours of work shall be consecutive.

For shift workers, such schedules shall provide that an employee's normal work week shall average the weekly hours per week specified in this agreement over the life of the schedule. The maximum life of a schedule shall be six (6) months.

For day workers, such schedules shall provide that an employee's normal work week shall average the weekly hours per week specified in this agreement over the life of the schedule. The maximum life of a schedule shall be twenty-eight (28) days.

Whenever an employee changes his or her variable hours or no longer works variable hours, all appropriate adjustments will be made.

2. Conversion of Days to Hours

The provisions of this agreement which specify days shall be converted to hours. Where the agreement refers to a "day", it shall be converted to hours in accordance with Article 21 of this agreement.

Notwithstanding the above, in clause 30.02, Bereavement Leave with Pay, a "day" will have the same meaning as the provisions of the collective agreement.

For a work week of thirty-seven and one-half (37 ½) hours, a day shall be converted to seven and one-half (7 ½) hours.

3. Implementation/Termination

Effective the date on which this article applies to an employee, the accrued leave credits shall be converted from days to hours.

A change to the normal weekly hours of work for an employee will require that the accrued hourly credits be reverted to days and recalculated at the changed conversion rate.

Effective the date on which this article ceases to apply to an employee, the accrued vacation and sick leave credits shall be converted from hours to days.

4. Leave - General

When leave is granted, it will be granted on an hourly basis and the hours debited for each day of leave shall be the same as the hours the employee would normally have been scheduled to work on that day.

All leave provisions which specify days in this collective agreement shall be converted to hours as follows:

HOURS 7 1/2
-five-twelfths (5/12) day	3.125
-one-half (1/2) day	3.750
-five-sixths (5/6) days	6.250
-one (1) day	7.500
-one and one-quarter (11/4) days	9.375
-one and two-thirds (1 2/3) days	12.500
-two and one-twelfth (2 1/12) days	15.625
-two and one-half (2 ½) days	18.750

5. Specific Application

For greater certainty, the following provisions shall be administered as provided herein:

Interpretation and definitions

"Daily rate of pay" - shall not apply.

Overtime

Overtime shall be compensated for all work performed on regular working days or on days of rest at time and three-quarters (1 3/4).

Travel

Overtime compensation referred to in clause 27.04 of this agreement shall only be applicable on a normal day for hours in excess of the employee's daily scheduled hours of work.

Designated Paid Holidays

a)	A designated paid holiday shall account for the normal daily hours specified by this agreement.
b)	When an employee works on a Designated Paid Holiday, the employee shall be compensated, in addition to the normal daily hours of pay specified by this agreement, time and one-half (1 ½) up to his or her regular scheduled hours worked and double (2) time for all hours worked in excess of his or her regular scheduled hours.

Vacation leave

Employees shall earn vacation at the rates prescribed for their years of service as set forth in Article 29 of this agreement. Leave will be granted on an hourly basis and the hours debited for each day of vacation leave shall be the same as the employee would normally have been scheduled to work on that day.

Employees scheduled to work any portion of a fiscal year under the variable hours of work provisions of this agreement shall not have fractional vacation entitlement of less or more than one-half (1/2) day increased to the nearest half day.

Sick Leave

Employees shall earn sick leave credits at the rate prescribed in Article 31 of this collective agreement. Leave will be granted on an hourly basis and the hours debited for each day of sick leave shall be the same as the employee would normally have been scheduled to work on that day.

Shift Premium

Shift work employees on variable hour shift schedules will receive a shift premium in accordance with clause 25.01.

Acting Pay

The qualifying period for acting pay as specified in clause 48.07 shall be converted to hours.

Exchange of shifts

On exchange of shifts between employees, if provided in this collective agreement, the Employer shall pay as if no exchange had occurred.

Minimum Number of Hours Between Shifts

The provision in this collective agreement relating to the minimum period between the termination and commencement of the employee's next shift shall not apply to an employee subject to variable hours of work.

[128]    The first issue that needs to be addressed is whether the grievors worked variable hours. During the hearing, I told the parties that the facts I had heard indicated that the grievors were working variable hours as set out in Article 34 of the collective agreement.

[129]    My conclusion rests on the following facts: the 12-hour shift is voluntary; it includes more hours of work than the normal work day; daily hours of work are consecutive and the schedule is based on an average work week of 37.5 hours. Moreover, overtime worked by correctional officers on 12-hour shifts is compensated at time and three-quarters.

[130]    During his testimony, Mr. Pelletier described that correctional officers working 12-hour shifts were on variable hours of work, and that when they took a day of leave, they were debited 12 hours. The grievors referred to 34.3 and 34.4, and while Mr. Bouchard did not talk about variable hours of work during his testimony, neither did he indicate that his schedule was covered in any other article of the collective agreement.

[131]    It is evident to me that the grievors are contesting the manner in which Article 34 is being applied, not the fact that this article provides for 12-hour shifts.

[132]    The second issue that needs to be addressed is whether the interpretation and application of paragraph 3 of Article 34 and paragraph 4 of Article 34 are consistent with the collective agreement. The employer debits leave based on a twelve-hour day of work and credits sick, vacation and family leave based on 7.5 hours per day of leave. This is consistent with the provisions in paragraph 4 of Article 34. Grievors work 12-hour shifts; the fact that the employer debits 12 hours for each day of leave taken is consistent with paragraph 4 of Article 34, first subparagraph.

[133]    With regard to the credits, paragraph 4 of Article 34, second subparagraph and the table following it are very clear. The conversion into leave credits must be based on a 7.5-hour day, and fractions of days are converted into the appropriate decimals based on the same calculations. This paragraph does not appear to have any other application than to convert leave credits into hours. These specific provisions apply to the grievors.

[134]    One of the rules of interpretation is that all provisions in a collective agreement must have an application. If the conversion table did not apply to the grievors' situation, to which situation would it apply? Thus, it was appropriate for the employer to use this table to calculate the leave credits for employees Serge Bouchard, Carol Gilbert and Daniel Letendre.

[135]    With regard to the second type of grievance, which contests the conversion of previously accumulated leave credits, paragraph 3 of Article 34 is the applicable provision. This paragraph is also clear and provides for a conversion of leave credits based on days into hours as of the date the variable hours of work came into effect. This is the only table that can be used for the conversion based on the formula that one day is equivalent to 7.5 hours. Without it the article would be redundant. The parties knew that the collective agreement applied only to correctional officers and that they acquired their leave credits in days, not hours. Thus, the parties must have been thinking of the grievors' situation when they negotiated the variable hours of work article.

[136]    The evidence shows that the employer made the retroactive adjustments in the grievors' leave credit banks. I believe these adjustments were consistent with the provisions of Article 34 of the collective agreement.

[137]    The only hesitation I have concerns Mr. Gilbert. This employee worked 32 hours a weeks before doing the 12-hour shifts. The employer calculated his credits at 80%, when in fact 32 hours a week out of a 37.5-hour work week represents 85.33%. The fact that the employer credited him 28.5 hours of family leave appears to be inconsistent with the collective agreement. It is not certain whether the calculation of 3.875 hours debited to the sick leave bank is valid in light of the real proportion of his previous schedule.

[138]    In terms of the argument that leave acquired while the correctional officers were working 8-hour schedules are rights that they acquired and that cannot be converted, this argument cannot hold in light of the clear stipulations in paragraph 1 of Article 34, second subparagraph, whereby the variable hours of work may apply to shift workers, and paragraph 3 of Article 34, which provides for the conversion of daily credits into hours based on a precise formula that comes into effect on the date when a variable work schedule starts.

[139]    Working variable hours is voluntary and Article 34 provides for a specific schedule of rights in regard to leave and overtime pay. The parties agreed to this. It is not within my jurisdiction to change this aspect of the collective agreement. For all these reasons, all of the grievances are dismissed.

Evelyne Henry,
Board Member

OTTAWA, August 26, 2004

P.S.S.R.B. Translation