HomeMy WebLinkAboutLarocque et al 13-03-011
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THAMES EMERGENCY MEDICAL SERVICES INC.
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 147
(the “Union”)
AND IN THE MATTER OF SEVERAL GRIEVANCES RELATING TO HOURS OF
WORK, STANDBY AND RATES OF PAY
Louisa M. Davie - Sole Arbitrator
Appearances
For the Union: Ed Holmes, Counsel
For the Employer: Rick Baldwin, Counsel
2
AWARD
In the individual and policy grievances before me the Ontario Public Service Employees
Union, Local 147 ("the Union") asserts that Thames Emergency Medical Services Inc.
("the Employer") has violated the collective agreement and the Employment Standards
Act ("ESA"). The substance of the claim is that the Employer has not paid employees
their appropriate wages for hours worked. Instead of paying employees at their regular
or overtime rates of pay, the Employer has paid employees a “standby” rate for certain
hours of work. Although in one of the grievances the remedial relief requested is that
employees receive minimum wage for the disputed hours, at the hearing the Union
indicated that it was not pursuing this claim, and was instead seeking payment of
regular or overtime rates of pay in accordance with the collective agreement.
The Employer denies any violation of either the collective agreement or the ESA. The
Employer asserts that the disputed hours for which regular or overtime pay is sought
are standby hours. Employees have been compensated in accordance with the
negotiated collective agreement premium for standby duty and a minimum four (4)
hours pay at time and one-half (1 ½) when called back to work during standby ("call
backs") during these hours. In this regard the Employer relies upon Article 42 of the
collective agreement which states:
42.01 (a) "Standby" means a period of time that is not a regular
working period in which an employee is required to be
available for recall to work. "Standby" duty shall be
approved prior to the time the employee is required to be on
call and an employee shall receive a rate of three dollars and
thirty cents ($3.30) (rounded to the nearest 1/2 hour) on
ratification. This rate shall be increased to three dollars and
forty cents ($3.40) (rounded to the nearest 1/2 hour) on
October 1, 2009, and further increased to three dollars and
fifty cents ($3.50) (rounded to the nearest 1/2 hour) on
October 1, 2010.
3
(b) Should an employee be recalled while on standby such
employee shall receive four (4) hours paid at time and one
half (1 1/2).
I heard the evidence of several witnesses, including Union and Employer
representatives, and full-time and part-time employees. The respective credibility of the
various witnesses was not an issue as each testified to the best of their ability and
recollection in an honest and forthright manner.
At times relevant to these grievances the Employer operated the land ambulance
services in the County of Middlesex and the City of London. It did so as result of its
contractual arrangements with the County of Middlesex ("Middlesex"). Middlesex
became responsible for the delivery of land ambulance services in both the City of
London and the County of Middlesex after the provincial government determined to
download or devolve responsibility for providing land ambulance services to the Upper
Tier Municipalities. Middlesex elected to deliver those services through a contract with
the Employer.
Pursuant to its contractual arrangements with Middlesex, the Employer operates several
ambulance bases in the City of London which are staffed 24 hours per day, seven days
a week ("24/7") by paramedics. Standby is not generally used at these London bases
and is therefore not at issue in any of the grievances before me.
In addition to its bases in London, the Employer operates various county bases in
Middlesex including those situated in Strathroy, Glencoe, Lucan, Parkhill (hereafter
“county bases”). The scheduling of staff at these county bases is not on a 24/7 basis.
Instead at the Glencoe, Lucan, and Parkhill bases the Employer operates one
ambulance which is staffed by paramedics from 7 a.m. to 7 p.m. each day (the "regular"
4
shift). In addition, employees who are scheduled to work that regular shift are also
scheduled to be on standby from the hours of 7 p.m. to 7 a.m. the following day.
Scheduling at the Strathroy base is somewhat different because at this base the
Employer operates more ambulances. At Strathroy 1 ambulance is staffed 24/7 and
employees are scheduled to work either the 7 a.m. to 7 p.m. or the 7 p.m. to 7 a.m.
shift. At Strathroy the Employer also operates another ambulance which is staffed from
7 a.m. to 7 p.m. and then staffed on a standby basis from 7 p.m. to 7 a.m. It is the
standby at these various county bases which give rise to these grievances.
At the county bases the employees scheduled to work the regular daytime shift from 7
a.m. to 7 p.m. shift are inevitably scheduled also to the standby duty from 7 p.m. to 7
a.m. which immediately follows it. More often than not the employee is also scheduled
to work the following day's regular 7 a.m. to 7 p.m. shift with the result that employees
are often scheduled (either for a regular shift or standby duty) for 72 consecutive hours.
An employee scheduled to standby may be able to make arrangements with another
employee to cover the assigned standby duty, but, if unable to do so, it is the employee
scheduled by the Employer who is responsible for performing the standby and any call
backs while on standby. The evidence indicates that in Strathroy employees are more
likely to find another employee willing to take their standby. At least one employee at
the Strathroy base has "peeled off" the standby duty from his regular shift and has
arranged for others to assume the assigned standby on most, if not all, of the occasions
he has been assigned standby. Employees are less likely to find others willing to
assume their standby if that standby duty is at one of the other county bases. That is
because Strathroy is a more populated area and a number of paramedics who work at
that base live in the community. The other county bases are in smaller lesser populated
areas with the result that fewer paramedics live in the area.
While on standby the paramedic carries a pager in order to receive possible call backs.
More significantly, and of critical importance to the Union's position in these grievances,
5
is the fact that employees must remain within a certain radius of the base in order to
meet the required response time. The required response time is eight (8) minutes.
Thus employees on standby, who are paged to respond to a call, must be in uniform, at
the base, in the ambulance and in radio contact with Dispatch within eight (8) minutes of
receiving the page.
The required response time is not referenced in the collective agreement. Instead the
response time is an Employer policy which has been implemented, in part, as a result of
the contractual relations which the Employer has with Middlesex. Although the Union
has negotiated standby and call back provisions in the collective agreement it has not
negotiated the required response time. Neither was it involved in the negotiation of the
contract between Middlesex and the Employer which outlines the eight (8) minutes
response time requirement. The Union therefore maintains that the response time is a
unilateral policy imposed by the Employer.
The eight (8) minutes response time has been in effect since at least April 23, 2000.
That is the first day that the Employer commenced to operate the land ambulance
services in Middlesex. Indeed, there was some suggestion in the evidence that the
standby arrangements at the county bases, and the eight (8) minutes response time for
those on standby, was in effect prior to the time when this Employer commenced
operating the land ambulance services in Middlesex. The Employer therefore
maintains that the negotiated provisions of the collective agreement which address
standby and call back must be interpreted and applied in context, having regard to the
fact that the parties knew and understood that the required response time for
employees on standby was eight (8) minutes.
The required response time presents certain practical problems for employees
scheduled to the standby duty. The county bases are located in smaller, more sparsely
6
populated communities. As a result, unless employees live in the community and within
an eight (8) minutes radius of the base, or unless they make other arrangements for
accommodation within the same radius, the employee must effectively remain at or near
the base in order to meet the eight (8) minutes response time.
The Employer permits employees to remain at the base while on standby. For that
purpose it has made available kitchen and sleeping facilities at each base. (The
appropriateness of those arrangements was a peripheral issue in these proceedings as
some witnesses did express dissatisfaction with the quality of the sleeping
arrangements which existed at some of the bases.) However, the Employer does not
compel or require employees to remain at a county base while on standby. There are
therefore a number of employees who do not remain at the base when scheduled to
standby. Those who live in the community will go home when scheduled to standby
duty. Some other employees who do not live within the eight (8) minutes response time
radius of the base have made alternative accommodation arrangements by staying with
friends or colleagues in the area, or by renting accommodations.
Employees on standby are free to come and go as they please and engage in various
activities of their choice provided they are able to properly respond to a page within the
eight (8) minutes response time. It was the Employer's evidence that, to date, no
employee had ever been disciplined for a failure to meet the eight (8) minutes response
time. However, on occasion, employees who failed to meet that requirement have been
reminded of the response time requirements.
For part-time employees who do not live within the eight (8) minutes response time
radius of a base the standby duty presents a greater problem. Part-time employees are
used to replace absent full-time employees. A part-time employee who replaces the
absent full-time employee on the regular shift at a county base is required by the
7
Employer to assume also the 7 p.m. to 7 a.m. standby duties of that absent full-time
employee. As part-time employees are employed throughout the Employer's operations
in Middlesex and London it is impossible for part-time employees to live within the eight
(8) minutes radius of each base to which they may be assigned. In addition, part-time
employees may not be able to work a subsequent regular day shift at a different base
because standby duties do not end until 7 a.m. That does not leave enough time to
travel to another base in time for the start of the regular 7 a.m. to 7 p.m. day shift at that
base. There was some suggestion that the Employer has made arrangements or
allowances for these circumstances which permit the part-time employee to accept
another regular day shift assignment at another base.
I heard evidence from both Employer and Union witnesses about the differences and
similarities between the regular 7 a.m. to 7 p.m. shift and the standby scheduled from 7
p.m. to 7 a.m
Those witnesses who remained at the base during their standby duty indicated that the
work performed while on standby was the same as the work performed during the
regular shift. That is to say that the paramedics wait for a call from Dispatch, attend the
call, and, after completing the call, prepare all appropriate paperwork and restock the
ambulance with supplies used. These witnesses emphasized also that regardless of
whether they were at work at the base during a regular shift or during the standby duty
friends or family could/would visit them at the base, the paramedic could/would leave
the base for meals, and, when not attending to a call could watch TV, read books, etc..
Some witnesses who chose to remain at the base during their scheduled standby also
testified that on occasions residents would attend at the base at night to seek
assistance and that they would continue to answer the phone or any knocks on the door
in the same manner as was done during the regular shift.
8
There was also evidence which highlighted the differences between the regular shift
and standby.
A key and critical difference between a regular shift and standby is the manner in which
employees are dispatched to a call. During a regular shift employees must carry a two
way radio which enables them to remain in constant and immediate contact with
Dispatch. If the employee leaves the base for any reason, including meals, the
employee must advise Dispatch and take both their partner and the ambulance with
them. Indeed, during the regular shift, the employee and the ambulance can't move
from the base without permission from Dispatch. The time for responding to calls
during the regular day shift is also greatly reduced as employees are expected to
respond within one (1) minute to priority four (4) calls. In contrast employees on
standby carry a pager, do not remain in contact with Dispatch, are not required to notify
Dispatch of their movement, and are not required to travel either with their partner or the
ambulance. The only requirement is to respond to the page and be in the ambulance,
in uniform, within eight (8) minutes of that page for priority four (4) calls. As noted,
unlike the regular shift, employees on standby are not required by the Employer to
remain at the base. While employees who leave the base without permission during the
regular shift are subject to discipline, employees on standby who leave the base are
not.
The evidence indicates that a significant number of full-time employees who are
scheduled to the disputed standby live locally, within eight (8) minutes of the base, and
therefore regularly perform standby from their home. While on standby, employees can
engage in a number of activities which they are not permitted to do while working a
regular shift. Thus employees testified about going home, going out to exercise, swim,
ride a bike, jog, attend at the library, etc. during their standby duty. While employees at
work during a regular shift must remain in uniform, that requirement is not imposed on
9
employees on standby. The only requirement for employees on standby is that they be
in uniform and in the ambulance within eight (8) minutes of receiving a page.
A provision regarding standby and the rate to be paid employees on standby, and a
minimum guarantee and the rate of pay for call backs which occur during standby, has
been part of the collective agreement between the Employer and the Union since the
inception of this bargaining relationship in 2000. During the collective bargaining of
successive collective agreements the rate paid to employees on standby, and the
minimum guarantee and rates paid to employees who are called back while on standby,
have both been the subject of negotiations. Over the years the standby rates and the
minimum guarantee for call backs have been increased.
The Union negotiators readily admitted that in their collective bargaining negotiations
they have sought to increase the rates of pay and minimum guarantees associated with
standby and call backs during standby as a means of ultimately eliminating standby. A
survey taken by the Union indicated that employees did not like the standby. It was the
Union's view that if the costs associated with standby and call backs were increased
significantly the Employer would eliminate standby and staff those standby hours at the
county bases with employees on a 24/7 basis. In past negotiations the Union has
therefore proposed that all employees receive fifty percent (50%) of the regular hourly
rate of pay for standby and a minimum four (4) hours pay at time and a half (1 1/2) for
each and every call back taken during standby. It has also proposed that employees
who live within eight (8) minutes of the base receive minimum wage while on standby
while those living outside that area receive their regular hourly rate of pay during
standby.
For its part the Employer is of the view that the number of calls for the county bases
during the standby hours does not warrant a full-time staff complement during those
10
hours and that an appropriate level of service can be maintained using standby. Its
contract with Middlesex is consistent with that view. To staff the county bases 24/7
would significantly increase its costs. In past negotiations therefore the Employer has
resisted many of the Union's various demands relating to standby. Over the years the
parties have agreed to increase the hourly rate for standby and have also increased the
minimum guarantee for call backs from three (3) to four (4) hours at time and a half (1
1/2).
Evidence was tendered indicating that there were significantly fewer calls dispatched
from the county bases during the hours when employees are on standby. In its
evidence the Employer estimated that it would cost in excess of $1 million more to staff
the county bases 24/7 rather than the current combination of scheduling a regular shift
and standby. I accept the Union's position that this estimate is too high and incorrect as
it does not take into account the current costs associated with payment for call backs
which occur during standby. Nevertheless, although the exact amount can't be
determined, the statistics regarding the number of calls suggest that the Employer's
operating costs would increase if the Employer staffed the disputed 7 p.m. to 7 a.m.
hours on a full-time basis rather than through scheduled standby.
Finally, some reference must be made to the system by which employees come to work
at the county bases where the requirement to be on standby from 7 p.m. to 7 a.m. is
imposed on employees who are scheduled to work the regular 7 a.m. to 7 p.m. shift.
Assignment to a base, and the filling of posted vacancies, is based on seniority.
Generally employees working at a county base have, at some point during their
employment with the Employer, chosen to work at that county base. For example, one
of the grievors who testified before me indicated that he chose to work at a county base
(a base which was not within eight (8) minutes of his residence) because that base
experienced fewer calls. He considered that to be less stressful and more beneficial to
his overall health and better for his previously injured back. The Employer therefore
11
emphasized that employees working at the county bases with standby do so voluntarily
and with full knowledge that the Employer schedules standby following the regular 7
a.m. to 7 p.m. shift. For its part the Union emphasized that it was the Employer's
decision to schedule standby in this fashion and that the Employer could, if it so
determined, construct a schedule which either did not include standby, or which did not
have standby scheduled as an "add-on" to the regular shift.
Finally reference must be made to an "Hours of Work" agreement entered into between
the Employer and the Union dated September 24, 2005. One of the grievances before
me asserts that the Employer's scheduling of standby and call backs violates that
agreement which states:
Letter of Agreement
Hours agreement
This is to confirm that the Ontario Public Service Employees Union Local
147 agrees on behalf of its members that Primary Care and Advanced
Care Paramedics may work up to 36 hours a week of voluntary hours in
addition to their normal work week of up to 48 hours.
These voluntary hours must comply with the Employment Standards Act
by having at least 11 hours off between shifts and also comply with the
terms of our present collective agreement.
The Union witness testified that this Letter of Agreement was intended to address
voluntary overtime and not standby. The reference to the requirement that the voluntary
overtime hours must comply with the ESA provision requiring 11 hours off between
shifts was not intended to address the scheduling of standby. However, it is the Union's
position that standby is not voluntary and that, because of the manner in which the
Employer schedules the standby shifts as an "add-on" to the regular shift, and
particularly on those occasions when an employee is called back while on standby, the
requirement for 11 hours off is not met.
12
Submissions of the Parties
Within the context of these facts the Union argued that the Employer has exercised its
Management Rights in a manner which essentially schedules employees to work 72 or
more hours. Standby is added on to a regular shift and the Employer requires that
paramedics work both the regular shift and be available for standby immediately after
doing so. Standby is mandatory and not voluntary. The Employer has adopted this
schedule because of its contractual arrangements with Middlesex. Those contractual
arrangements, and the Employer's policy which requires that employees on standby
respond within eight (8) minutes of a page, were not negotiated with the Union and are
not part of the collective agreement.
The substance of the Union's position is that so long as employees continue to be
subject to the control and direction of the Employer and must remain in close proximity
to the Employer's premises the standby hours must be considered "work". In this
regard the Union referred to and relied upon Re Religious Hospitallers of Hotel-Dieu of
St. Joseph of the Diocese of London and Service Employees Union, Local 210 (1983)
L.A.C.(3d) 151 (Saltman); Ottawa Civic Hospital and Retail Wholesale Canada, Local
414 (1996) 61L.A.C. (4th) 101 (Brown); Province of Nova Scotia and Police Association
of Nova Scotia (1993) 32 L.A.C. (4th) 47 (Venoit); Dominion Stores Ltd. and Retail,
Wholesale and Department Store Union, Local 1065 (1978) 20 L.A.C. (2nd) 118
(Teed); Thames Valley Ambulance Ltd. and Ontario Public Service Employees Union
(GSB # 0208/97) unreported decision of E. Marszewski dated August 6, 1999; Ministry
of Health and Ontario Public Service Employees Union (GSB # 1281/85 to 1294/85)
unreported decision of G. Brandt dated August 12, 1987.
It was the Union's position that the collective agreement only requires that employees
"be available for recall to work." The eight (8) minutes response time unilaterally
imposed by the Employer which requires employees to be in uniform, in the ambulance
13
and in radio contact with Dispatch goes further than that and effectively means that
employees are confined to close proximity to the Employer's premises i.e. the county
base. For practical purposes the eight (8) minutes response time means that
employees are not free to utilize the hours on standby as they wish. Instead, the
requirement that employees must respond within eight (8) minutes means employees
remain subject to the control and direction of the Employer during standby. That
confinement to the area, and the control which the Employer has over the employee's
movement away from the Employer's premises because of the response time
requirement, means that while on standby employees are performing work that the
Employer has scheduled for them. Essentially, while on standby, because of the eight
(8) minutes response time, employees are required to remain in close proximity to their
place of employment while waiting or holding themselves ready for work. The collective
agreement sets out the rates of pay for hours worked. The Employer therefore violated
the collective agreement when it failed to pay the employees the appropriate hourly rate
for these hours of work.
The Union also submitted that because standby was mandatory and not voluntary
employees were being scheduled to work in contravention of the Letter of Agreement
dated September 24, 2005. This is particularly so when employees on standby were
called back to work during the standby hours. If called back during standby employees
did not have the requisite 11 hours off between the regular shifts before and after the
standby.
The Union sought monetary remedial relief in the case of two of the specific individual
grievances filed. With respect to the Union grievances filed it sought only declaratory
relief that the Employer's manner of scheduling standby and the payment of a standby
rate during those hours violated the collective agreement and the Letter of Agreement.
Together with declaratory relief the Union sought a direction that, on a go forward basis,
14
employees be paid the regular or overtime rates set out in the collective agreement for
hours worked when scheduled to be on standby
The Employer submitted that the eight (8) minutes response time requirement was a
long-standing Employer policy promulgated pursuant to the Management Rights
provision of the collective agreement. Moreover, with knowledge of the eight (8)
minutes response time, the parties to the collective agreement negotiated a standby
provision pursuant to which employees would not be paid regular rates of pay while on
standby. Having explicitly negotiated a specific provision to address the rate of pay for
employees on standby, in context of a well-established eight (8) minutes response time
requirement, it was not open to the Union to assert that employees should be paid a
different rate of pay on the theory that employees were confined to the Employer's
premises and therefore "at work."
In Article 42 the parties have agreed on the definition of standby and have agreed on
the rates to be paid to employees on standby. They have also agreed on the rates to
be paid if employees are called in to work from standby. Article 42 specifically indicates
that standby is not work. Instead, it indicates that standby is a period of time during
which employees must be available for recall to work. Standby is a duty under which
employees hold themselves ready for recall to work. It is not work in itself.
Employer counsel also submitted that the standby duty is voluntary insofar as full-time
employees choose to work at the county base knowing that they will be required to be
on standby. Similarly, part-time employees choose to accept assignments to backfill
full-time employees at a county base with the knowledge that the assignment also
requires performance of the standby duty.
15
It was argued that the Union's position that employees on standby receive their regular
or overtime rates of pay would apply equally to all employees working at a county base,
including those employees who live in the area and regularly stay at home during the
standby hours. The fact that employees could perform standby from their home, as well
as the fact that they could move about freely and engage in various activities while on
standby (subject only to the eight (8) minutes response time) also underscored that
standby was not work.
Finally Employer counsel referenced the ESA which specifically addresses when "work"
is deemed to be performed for an Employer and the requirement for 11 hours off
between shifts. Section 6 of O. Reg. 285/01 amended to O. Reg. 443/08 states:
6 (1) Subject to subsection (2), work shall be deemed to be performed by
an employee for the employer,
(a) were work is,
(i) permitted or suffered to be done by the employer, or
(ii) in fact performed by an employee although a term of
the contract of employment expressly forbids or limits
hours of work or requires the Employer to authorize
hours of work in advance;
(b) where the employee is not performing work and is required
to remain at the place of employment,
(i) waiting or holding himself or herself ready for call to
work, or
(ii) on a rest or break-time other than an eating period.
6 (2) Work shall not be deemed to be performed for employer during the
time the employee,
(a) is entitled to,
(i) take time off work for an eating period,
16
(ii) take at least six hours or such longer period as is
established by contract, custom or practice for
sleeping and the Employer furnishes sleeping
facilities, or
(iii) take time off work in order to engage in the
employee's own private affairs or pursuits as is
established by contract, custom or practice;
(b) is not at the place of employment and is waiting or holding
himself or herself ready for call to work.
Section 18 of the ESA states
18 (1) An employer shall give an employee a period of at least 11
consecutive hours free from performing work in each day.
18 (2) Subsection (1) does not apply to an employee who is on call and
called in during a period in which the employee would not otherwise
be expected to perform work for his or her Employer.
(emphasis added)
Employer counsel argued that the standby duty did not fall within subsection 6 (1) (b) as
employees were not required to remain at the base during their standby. Instead,
subsection 6 (2) (b) specifically indicates that an employee not at work but waiting to be
called in to work (i.e. an employee on standby) is not performing work for the Employer.
Section 18 (2) indicates that an employee called back to work while on standby will not
have the standby and call back hours counted for purposes of determining whether
he/she has been given at least 11 consecutive hours off between shifts.
17
Employer counsel distinguished the cases relied upon by the Union and instead referred
to, and relied upon, International Association of Machinist, Local 1740 and John
Bertram and Sons Co. Ltd. (1967), 18 L.A.C. 362 (Weiler); Industrial Fasteners Limited
and United Steelworkers, Local 7940 (1973), 4 L.A.C. (2nd) 410 (Weatherill); Atlantic
Health Sciences Corp. and Canadian Union of Public Employees 1252, Local 1128
[2005] N.B.L.A.A. No 8 (McEvoy); Province of British Columbia and British Columbia
Government Employees' Union (1987), 5 C.L.A.S. 9 (Chertkow); North Bay Hospital
Commission and Ontario Nurses' Association (1976), 13L.A.C. (2nd) 154 (Abbott); Leco
Industries Ltd. and Oil, Chemical and Atomic Workers International Union, Local 9-819
(1980), 26 L.A.C. (2nd) 80 (Brunner); Greater Vancouver Regional Hospital and
G.V.R.D.E.U. (2002), 110 L.A.C.(4th) 72 (Kelleher); Maple Leaf Mills and United Food
and Commercial Workers Union, Local 401 (1995), 50 L.A.C. (4th) 246 (Sims); Balmoral
Lodge Nursing Home [1997]O.E.S.A.D. No 492 (Cummings); Bracebridge Taxi [2005]
O.E.S.A.D. No. 510 (McLean); Cancoil Thermal Corp. [1999] O.E.S.A.D. No 192
(Cummings); Gain and International Brotherhood of Electrical Workers [1979] O.L.R.B.
Rep. 651; McGovern's Ambulance NB Inc. [1998] N.B.L.E.B.D. No. 28 (McGinley);
Gregory Manufacturing Limited and I.W.A. Local 1-357 (1981), 30 L.A.C. (2nd) 427
(Bird); Felec Services Inc. and International Brotherhood of Electrical Workers, Local
2085 (1986), 27L.A.C. (3rd) 163 (Schulman).
Decision
I have determined that these grievances must be dismissed. The Employer's
scheduling of standby and its payment of the negotiated rate for standby duties during
those hours does not violate the collective agreement, the September 24, 2005 Letter of
Agreement or the ESA provisions pertaining to "work" and "hours of work".
There was no issue raised in these proceedings that the Employer could schedule
employees to the standby duty. Neither was the reasonableness of the eight (8)
18
minutes response time put in issue. Although the Union asserted that the eight (8)
minutes response time was not part of the collective agreement and had not been
agreed to by the Union, it did not go so far as to argue that requiring employees to
respond to a page and be at the base in uniform within eight (8) minutes of the page
was unreasonable. (Rather it submitted that the response time meant that employees
continued to be subject to the Employer's control.) Given the nature of the Employer's
operations, and the seriousness of the consequences for those in need of ambulance
services if those services are delayed, I am of the view that the Employer's policy which
requires employees to respond within eight (8) minutes is not unreasonable or
inconsistent with the collective agreement standby requirement "to be available for
recall to work." That the eight (8) minutes response time policy has been in effect for
such a long period of time without challenge tends to confirm the reasonableness of the
policy.
The Union has argued that the requirement to respond within eight (8) minutes means
that employees must remain in close proximity to the base, and that they are effectively
under such control of the Employer by reason of that eight (8) minutes response time
that they are at "work" while on standby. It is argued that for some employees the eight
(8) minutes response time means that for all intents and purposes they are required to
remain on site, at the base, while holding themselves ready for work.
The Union has sought to draw an analogy to employees who are required to remain on
site during lunch breaks and who are compensated for that time. I do not agree that the
circumstances are analogous. Employees required to remain on the Employer's
premises during meal times are denied the choice of leaving those premises and
choosing where they want to eat. Here employees on standby are not denied the
choice of leaving the base by the Employer. Rather it is the personal choice and
personal circumstances of the employee which dictate whether or not the employee
chooses to leave the base during standby.
19
There are a number of reasons why the Union's position that standby is "work" can't be
accepted in this case. First, in their collective agreement, the parties have defined
standby as not being "work", but a "duty". Article 42.0 1(a) specifically states that
standby is time that is "not a regular working period." That is reinforced by the purpose
of standby as set out in Article 42.01(a). That purpose is that the "employee is required
to be available for recall to work." That purpose makes it clear that standby and work
are distinguishable. An employee can't be both "standing by" for recall to work and be
"at work" at the same time. There is an inherent contradiction between "standing by" for
recall to work and being "at work". The employee can't be doing both at the same time.
Secondly, it is clear that employees are not required to remain at the base during their
standby hours. While on standby, employees are free to engage in any activity and be
in any place they want to be provided they can meet the eight (8) minutes response
time. A large group of employees who live in proximity to the county bases take
advantage of that and perform the standby duty from the comfort and convenience of
their own homes. Although the Employer provides facilities for the convenience of
employees who wish to remain at the base during standby, employees are not obliged
to use those facilities or remain at the base. That a number of employees use the
facilities during their standby hours because of practical considerations and/or financial
reasons does not convert the convenience of using Employer provided facilities into an
Employer requirement to remain at the base. Whether one remains at the base during
standby is a personal decision of the employee based on such personal factors as
where they have chosen to reside and whether or not they want to incur the financial
costs associated with making alternative arrangements for accommodation when they
are on standby.
The purpose of a standby provision and a standby premium such as the one found in
Article 42.01(a) is to compensate employees for the inconvenience of having to make
themselves available for "call-backs" or recall to work. All employees on standby have
20
limitations placed on them as they have to rearrange their personal affairs to ensure that
they are available to come back to work if called. That is why those employees who
perform standby from the convenience of their home receive the negotiated standby
premium. It is inconsistent to convert that negotiated premium for standby hours into
overtime or regular rates of pay for those employees who, for financial reasons or
personal convenience, choose to remain at the base while others do not.
This brings me to the third reason why the Union's position can't be accepted. As noted
the Employer does not impose any requirement that employees remain at the base
while on standby. Those employees who go home during their standby hours are
clearly not "at work" or "working". They are on standby and available to be recalled to
work if necessary. If the Union's position were to prevail it would lead to the absurd
result that employees who choose to remain at the base for personal reasons are
compensated at higher rates for their standby hours than those who perform their
standby duty from the comfort and convenience of their own home. Both groups of
employees are performing the same standby duty. Both suffer the inconvenience of
having to arrange personal affairs in order to ensure they are available for recall to
work. Yet one group would be compensated for this inconvenience at a significantly
higher rate than the other by reason only of a personal decision made by the employee
to spend standby at one location (the base) rather than another (their home). In my
view it is inconsistent with principles of collective agreement interpretation and
application to conclude that Article 42 of this collective agreement provides a different
benefit to one group of employees than another, or that, in the same collective
agreement, increased compensation for the same standby duty is paid to some
employees and denied to others.
I have concluded that the language of this collective agreement is clear and
unambiguous and can't be interpreted in a manner which equates standby with "work"
which would attract regular or overtime rates of pay. In my view this conclusion is also
21
consistent with the ESA which specifies that employees who are not "required" to
remain at their place of employment while on standby are not deemed to be at work.
I do not accept the Union's position that the Employer's scheduling of standby violates
the Letter of Agreement dated September 24, 2005 and/or the ESA requirement that
employees have at least 11 consecutive hours free from work. It was the Union's
evidence that the Letter of Agreement deals with voluntary overtime and not standby.
Neither the standby duty nor the requirement to perform call backs while on standby is
voluntary overtime. The Letter of Agreement therefore does not apply to standby hours.
Moreover, to the extent that the Letter of Agreement refers to the ESA, I have already
expressed my view that standby, in circumstances where an employee is not required to
remain at their place of employment, is not work. The scheduling of standby hours
therefore does not violate the Employer's obligation to provide employees with "at least
11 consecutive hours free from performing work." Similarly, section 18 (2) of the ESA
provides that the requirement of at least 11 consecutive hours free from work does not
apply to employees on standby who are called in during their standby.
For all of these reasons these grievances are dismissed.
Dated at Mississauga this the 1st day of March, 2013
Louisa Davie
Louisa M. Davie