HomeMy WebLinkAboutUnion 04-10-25
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IN THE MA TIER OF AN ARBITRA nON
BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
-and-
THE NORTHEAST MENTAL HEALTH CENTRE
AND IN THE MA TIER OF A GRIEVANCE DATED September 30, 2002 regarding
Call back Pay pursuant to Article 17.02 of the Collective Agreement between the parties
Before
Kevin Whitaker, Chair
Sherril Murray, Union Nominee
Douglas K. Gray, Employer Nominee
Appearances For the Union
Will Presley, Grievance Officer
Peggy Hong, President Local 666
Stacey Harper
Appearances For the Employer
Angela E. Rae, Counsel
Steve Shemluck, Ontario Hospital Association
Jill Wood, Northeast Mental Health Centre
A hearing was held in Sudbury on February 18, 2004
I
What This Case is About
This is a grievance dated September 30,2002 which claims that the employer has
breached the provisions relating to call back pay found in Article 17.02 of the collective
agreement between the parties. The union seeks as remedy, that the employer
compensate all "ACCT" members in the bargaining unit.
The significant issue between the parties is whether employees are entitled to call
back of two hours of pay, for performing work over the telephone without leaving their
home or current location.
The parties provided us with an agreed Statement of Fact. Submissions were
made on the basis of the Statement of Fact at the hearing in Sudbury. Two further rounds
of written submissions were made. In particular, the parties provided the panel with the
award in Re: Ontario Council of Regents for Colleges of Applied Arts and Technology
(St. Lawrence College) and OPSEU (unreported award of a panel chaired by Arbitrator
Simmons, dated June 7, 2004) and submissions addressing the award.
For reasons which follow, the grievance is dismissed. We find that where
bargaining unit members of the ACCT team perform work at home, the call back pay in
Article 17.02 ofthe collective agreement is not payable.
II
The Facts
The parties put before us on agreement, a seven page Statement of Fact and a
number of exhibits. We will not reproduce the Statement of Fact here, but have
considered it and the exhibits in their entirety.
Employees concerned in this grievance are members of the Employer's Assertive
Community Treatment Teams ("ACTT"). There are two teams. Each are
multidisciplinary, comprised of professional and administrative staff. Most team
members are in either the OPSEU or Ontario Nurses' Association (aNA) bargaining
units. Each team is responsible for a certain caseload of clients who live in the
community. Clients all have chronic and/or serious mental illnesses.
The regular duties of team members includes responding by telephone to requests
for support and assistance ITom clients, their families and treating professionals.
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Telephone calls are taken and made for the most part, while employees are working at the
physical premises occupied by the Centre.
Team members also perfonn standby duties during the weekend. One team
member for each team is on standby from Saturday at 3:30 PM to Sunday at 7:30 AM
and then a second team member from Sunday at 3:30 PM to Monday at 7:30 AM.
Most calls received by employees on standby occur before 1 a PM and then again
between 6:30 and 7:30 AM. Most calls are for less than ten minutes of duration. The
vast majority of calls are from clients themselves, rather than from family members or
treating professionals..
Employees on standby carry a dedicated cell phone with a pager as backup. If the
phone is not answered in time or is out of cell phone range, the call is transferred to the
pager.
When the employee must attend somewhere outside of their home to respond to
the call, they are paid the call back pay pursuant to Article 17.02 of the collective
agreement. In this case, they are not paid the standby pay in Article 17.01 for the time
that they are paid call back.
Where the employee is able to respond to a call at home, they are not paid the call
back time but rather are paid overtime for the period of time spent on the phone call.
Overtime is paid in fifteen minute intervals at time and one-half. Standby time is not
paid for time spent on the phone.
Work perfonned over the telephone while at home is the same type of work that
would be perfonned in the workplace during working hours if the call had been taken or
placed from there. Other than for the difference in location ( home versus at the
employer's premises), the work performed while on the telephone is in all respects
identical.
III
The Collective Agreement Provisions
Article 16.03 defines overtime as any hours worked in excess of the nonnal day
or week:
Overtime shall be defined as being all hours worked in excess of the normal or standard
work day, or in excess of the normal or standard work week. The overtime rate shall be one
and one-half (1 Yz) times the regular straight time hourly rate of pay.
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Article 17.01 provides for standby pay where an employee is required to remain
available for call back duty. The pay is $2.50 per hour or $3.00 per hour if on a
designated holiday:
An employee required to standby or remain available for call-back duty on other than
regular scheduled hours shall be paid at the rate of two dollars and fifty cents ($2.50) per
hour of standby time. Where such standby falls on any of the designated holidays listed in
the collective agreement, the employee shall be paid at the rate of three dollars ($3.00) per
hour of standby time. Hours worked for call-back shall be deducted from hours for which
the employee receives standby pay. However, an employee shall be entitled to a minimum of
five dollars ($5.00) for each eight hour period on standby even if called back to work.
Article 17.02 of the collective agreement governs the payment of call back pay:
An employee who is called to work after leaving the Hospital premises and outside of his
regular scheduled hours, shall be paid a minimum of no less than two (2) hours' pay (except
those Hospitals where 2 Yz or 3 hours is applicable; such Hospitals shall appropriately reflect
the applicable hours in this article) at time and one-half (1 Yz) his regular straight time
hourly rate for work performed on each call-in. In the event that such two (2) hour period
overlaps and extends into his regular shift he will receive the two (2) hour guarantee
payment at time and one half (1 Yz) and his regular hourly rate for the remaining hours of
his regular shift. The reference to leaving the Hospital premises referred to above will not
be applicable where an employee remains in the Hospital on standby arrangement with the
Hospital.
The union's argument is that when an employee on weekend standby takes or
makes a call to a client, they are doing exactly what they would be doing if they were
physically "at work" (either the Hospital or some other workplace location outside of the
Hospital) - that being the provision of advice, counselling, information and support over
the telephone to a client, family member of a client or treating professional. Other than
the physical location of where the telephone call is being made or taken, they are in all
other respects performing the same work that would be done during a regularly scheduled
shift. It is suggested that Article 17.02 applies in that the phone call requires the
employee to be "called to work" for purposes of the first sentence of the Article.
Further, the union suggests that the call back pay is triggered and made payable
for each individual call made from home. This means that if three calls are made then six
hours of call back pay is payable, two hours for each call.
The employer asserts that the language of Article 17.02 is clear in that the phrase
"called to work" in the first sentence, means the work place. This is underscored by the
reference to "Hospital premises" in the first and last sentences of the Article. The
employer argues that to ascribe any other meaning would run counter to the plain
language of the Article on its face and also create an inequitable windfall to the
employee. If the union is correct, then the employee on standby who takes four calls
would be entitled to eight hours of pay (two hours for each call back) for what might
amount to only minutes of actual working time. The employer submits that such a result
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is absurd and the parties could not be understood to have entered into a collective
agreement which produces such a bizarre result.
Both parties agree that the issue turns on the construction of the language of
Article 17.02. Neither have argued that there is an estoppel or that there is some latent or
patent ambiguity that requires a consideration of extrinsic evidence. The only question to
be answered then is - is the phone call taken or being made on standby from the home of
the employee on a weekend - a situation where the employee is "called to work" for
purposes of Article 17.02?
IV
The Authorities
The parties have put a great quantity of authority in front of us in support of their
respective positions. What follows at this point is a brief summary of those which we
regard as significant.
The first reported arbitral decision to deal with the issue of call back pay is Re
International Molders & Allied Workers' Union, Local 49 and Webster Manufacturing
(London) Ltd. (1971) 23 LA.C. 37 rvveiler). In this case, three grievors were asked
before the end of their shift if they would return to the plant later in the evening to
perform work. The grievors finished their shifts, went home and then returned at the
appointed time. They were paid overtime only but not call back pay. One of the issues to
be decided was whether they had been "called back". The employer argued that they
weren't called back because arrangements for their return to the plant had been made
before the end of their shifts.
At page 40, the arbitrator notes that the purpose of call back pay is to compensate
the employee for the disruption to his or her home life that follows when one is called
into work suddenly and has to make an extra unplanned round trip from home to work.
In other words, there are two distinct burdens borne by the employee for which the
compensation is payable, - the disruption to one's personal time and secondly, the need to
make an unplanned trip from home to work and back:
"...the purpose of the guarantee was to assure adequate compensation to an employee who
was put to a certain inconvenience and social dislocation, as well as added transportation
expenses, from having to make an extra trip to and from work"
And later on the same page:
The reason why the parties negotiate this minimum is the recognition of the fact that being
required to leave home and to go to work usually involves significant disruption and expense
for an employee and it is only fair that he should be guaranteed adequate compensation. It
is also designed to ensure that the company, which gets the benefit ofthe employee being
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called to work at an irregular time, be encouraged to make use of its powers only when this
is important enough to warrant the costs it will incur. It is vital to recognize that these
guaranteed earnings, on overtime work outside of regular hours, are not paid the employees
for overtime that follows continuously from the end of their shift. This is because the reason
for the guarantee - the extra trip to and from work - did not obtain in this case.
The points made here are that the quantum of monies paid for call back does not
bear any rational relationship to the quantity of work which might be performed, but
rather is a special form of compensation to offset the social disruption and actual cost of
having to leave home and travel to work and back when such a trip was not planned.
There is also an element of disincentive to employers, so that they will not abuse their
ability to call employees back. These seem to have been the originally recognized
justifications for call back pay. Although it may be fairly said that the language of the
collective agreement in this case made no explicit reference to the requirement that the
call back had to be to the physical premises ofthe workplace, such an implicit term was
assumed, based on the reasoning behind the supposed purpose of the pay.
In Re Shell Canada Ltd. and Oil, Chemical and Atomic Workers Local 9-848
(1974) 6 LA.C. (2d) 422 9 (O'Shea), the grievor was called back to work while driving
his car out of the plant parking lot at the end of his shift. The arbitrator accepted the
reasoning behind call back pay as expressed in Webster and suggested that the
significance was not so much the cost of the travel but the inconvenience of having to
come back to work when it was unplanned and disruptive to home life.
In Re Leco Industries Ltd. and Oil, Chemical and Atomic Workers International
Union, Local 9-819 (1980) 26 LA.C. 80 (Brunner), the grievora maintenance worker,
claimed call back pay for having to respond to a pager and call his supervisor. While the
arbitrator accepted that the advice given by the grievor over the telephone was work and
for which he was entitled to overtime, he was not called back to work in giving the advice
and therefore not entitled to call back pay. In relying on the rationale for the pay as
explained in Webster, the arbitrator found that call back pay was only payable where the
employee reported to work at the employer's physical premises. As in Webster, there
was nothing express in the collective agreement language which suggested that the call
back had to be to the employer's premises. This was inferred by the arbitrator without
any significant discussion of the language.
In Re Grey Bruce Regional Health Centre and OPSEU (Unreported decision of
Arbitrator Shime dated August 31, 1988), the issue to be decided was different from the
one in the present case but the arbitrator confirmed the analysis in Webster. At page 3 he
noted before citing the Webster award:
When call-back occurs, it generally attracts a prenúum payment because the employee is
required to leave home and return to work usually at some disruption to his or her personal
life; thus the employee is guaranteed a prenúum payment because of the personal
disruption. Also the prenúum payment is intended as a penalty to discourage employers
from calling employees at irregular times.
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In Re The Crown in Right of Ontario and OPSEU (Stecko) (Unreported decision
of the Ontario Crown Employees Grievance Settlement Board (File No. 2499/92) June 2,
1993 (Devlin», the grievor claimed call back pay where he was on call and responded to
a call over the telephone without returning to the workplace. Although the arbitrator
found that the grievor was working in making the telephone call, it was the disruption of
having to physically return to the workplace that call back was payable for. The
grievance was denied on this basis.
In Re Camp Hill Medical Centre and Nova Scotia Nurses' Union (1994) 40
LAC. (4th) 381, the grievor claimed call back pay when she was called back and then
worked until the start of her normal shift. The employer argued that she only had to
make one trip to work and should not receive any extra compensation.
The arbitrator noted that the authorities seemed divided on the issue of whether
the call back pay was to compensate for the disruption of home life only or - that and the
requirement to make an extra trip to the workplace. The grievance was allowed and the
analysis turned on the specific language of the collective agreement rather than any
general imputed rationale for call back pay. '
In Re Grey Bruce Regional Health Centre and OPSEU (Unreported decision of
Arbitrator Brent dated April 26, 1995), the arbitrator was called upon to interpret the
same collective agreement as in the case before us. Further, the issue was the same -
whether call back pay should be paid where employees are on stand by and respond by
working over the telephone rather than in physically returning to the workplace. The
employees in this case were computer programmers in the Information Services
Department of the Hospital.
The board had before it, most if not all of the authorities before us that were
decided at that date. The arbitrator accepted the rationale behind call back premium as
expressed in Webster. At page 8 it is concluded that the premium is not payable where
the employee does not have to physically return to the workplace:
It is our view that the more reasonable interpretation of article 20.01 (17.02 in the agreement
before us), which refers to being "called to work after leaving the Hospital premises" and
then, in the last sentence, specifically deals with the case of someone who has not left the
prenúses but remains in the Hospital on standby, is to regard it as requiring a physical
return to the Hospital prenùses to perform work on those premises. Such an interpretation
is more in accord with the normal call back situation, and it is our view that the parties
would have to specifically negotiate a call back provision which dealt with work being
performed off the premises in order to have that work qualify for the minimum guaranteed
call back prenúum.
In Re The Crown in Right of Ontario and OPSEU (Delaquis) (Unreported
decision of the Ontario Crown Employees Grievance Settlement Board (File No.
1599/92) November 15, 1993 (Tacon», the Grievance Settlement Board was dealing with
the same provisions that were addressed in Stecko. The grievor in this case claimed call
back pay for responding to a telephone call while on standby The issue, as in Stecko,
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was whether the response over the telephone was a call back to work even though there
was no physical return to the employer's premises.
The board of arbitration reviewed many of the authorities put before us and
concluded that the underlying purpose of call back pay is to compensate an employee for
a disruption to their home life where they must perform work. The board found that a
physical return to the workplace was not required to trigger this entitlement. At page 8,
the board noted:
The Board does not regard the phrase 'called back to work" as requiring a physical return
to the Ministry office or the spill site. In the Board's view, the language indicates that the
employee is no longer free to carryon with his/her private life but must perform "work" for
the employer. For that disruption and inconvenience, the employee is entitled to call back
pay.
Even though the article in question expressly referred to the "place ofwork",the
board of arbitration found that a return to the work premises was not required in order to
attract the premium. The grievance was allowed.
A similar result is found in Re The Nova Scotia Government Employee 's Union
and The Department of Human Resources (Victoria General Hospital) (Unreported
award of Arbitrator Archibald dated November 9, 1994). In this case, call back pay was
claimed by nurses who were on standby and had to respond by telephone to patient
inquiries while at home. The arbitrator reviewed the authorities (again, many of those
before us) and concluded that the purpose behind call back pay is to compensate for the
disruption to one's personal life - rather than the inconvenience of having to make a
physical trip back to the workplace. The article in question did expressly mention the
requirement of having to have had left the "premises of the work location.. .".
The same analysis is followed in Re Health Employer's Association of British
Columbia and British Columbia Nurses' Union (Tumbler Ridge Health Centre) (1994) 43
LAc. (4th) 25. In this case, nurses who were on call and had to respond to patients by
telephone from home sought call back pay. The provisions of the article in question
made no reference to a physical return to the hospital but did provide for taxi fare "from
home to hospital and return" in addition to the cash premium.
At page 34, the board of arbitration concluded that the purpose behind the
premium was compensation for the disruption of one's private life and that this would be
the same regardless of whether a return to the hospital was required or not:
The purpose of the call-back provision is to recognize the personal inconvenience and
significant disruption in being called to duty in the middle of the night. That disruption and
social dislocation occurs whether the on-call duty nurse leaves her home and goes to the
workplace or whether she performs her duties without leaving home. There is no
substantive difference. Either way she encounters significant disruption and, since we have
found that she performs the same duties and provides the same service from home as at
work, either way she goes to work.
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Similar results are found in Re Treasury Board and Heath (1994) 43 LA.C. (4th)
346 (Turner) and Re Greater Vancouver Regional District and Greater Vancouver
Regional District Employees' Union (2002) 11 a LAC. (4th) 72 (Kelleher). In both these
cases, employees were found to be entitled to call back pay where they responded to
telephone calls without having to return to the workplace. The results turned on an
acceptance that the purpose behind the payment of the premium was to compensate for
the disruption of one's private life by having to perform work - and that this was the
same whether or not the employee was obliged to return to the workplace.
In St. Lawrence College referred to early on in this award, the board of arbitration
dealt with a grievance claiming call back pay by the Co-ordinator, Physical Resources at
the employer's Brockville Campus. The grievor claimed call back pay for telephone calls
made from outside of the physical premises of the College and her normal working hours.
The employer paid for time spent on the calls at one and a half (1 Y2) times the regular
hourly compensation.
The article in question (6.4) was as follows:
Where an employee has completed his/her regularly scheduled hours of work and is
subsequently called back before the commencement of his/her next regularly scheduled shift,
he/she will receive payment for all hours worked at the applicable overtime rate with a
minimum guarantee of four (4) hours overtime at time and on-half his/her regular rate of
pay...
The board's analysis begins at page 13 of the award. The board reviews all the
authorities put before us and concludes that the issue of whether call back is payable has
not been consistently applied by arbitrators. The board goes on to note that as a result of
technological changes, employees can increasingly merge their work with their home
lives and that this blurring of distinctions is not necessarily reflected in current collective
agreement language.
The employer argued in this case that the grievor was entitled to overtime for the
work performed over the telephone. The board rejects this suggestion on the theory that
the overtime provisions of the collective agreement contemplate amongst other things, a
pre-arranged commitment of work to be performed and that this cannot apply to the
grievor's circumstances.
The board of arbitration also notes that under this collective agreement there
would be no premiums payable for standby for the work performed by the grievor. This
means that unless it is call back, there was no provision in the collective agreement which
would apply to the arrangement.
The crux of the board's reasoning is at page 20:
But the question remains is art. 6.4 capable of being applied to situations which do not
require the grievor's return to the campus? We believe so. The article reads in part that,
"Where an employee.. .is subsequently called back before the commencement of his/her next
regularly scheduled shift..." she shall receive payment "with a minimum guarantee" as
stipulated. There is no doubt the grievor has been "called back" to perform an obligation on
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behalf of the employer. We do not think it is necessary to add words like "call back to duty"
or "call back to the campus" or "call back to the workplace" for the grievance to proceed.
That would be playing on words which we believe is not helpful to anyone. In attempting to
interpret art 6.4 we ought not to construe it too narrowly so as to require the grievor to
return to the workplace each time for it to apply, nor too liberally to have it apply each and
every time she receives a phone call at home.
Analysis
From Webster onwards, the earliest authorities seem to indicate that the original
purposes behind call back pay were threefold - (1) to provide compensation for the
disruption to one's personal life, (2) for the physical inconvenience of having to make
and extra and unplanned trip to and from the workplace and (3) to create a disincentive
for the employer so as to ensure that call back was not abused.
Since this analysis was first outlined in Webster, there has been a recognition that
the second purpose (ifit exists at all) has become increasingly less relevant where
modern technology has permitted a significant blurring of the lines between work and
private life. Where a person's work maybe performed from any remote location, it is
more difficult to see how the degree of disruption is different where work is required
from home as opposed to the workplace.
Most of the authorities provided to us by the parties dispose of this issue on the
basis on an analysis of the purpose of call back pay with little reference to the wording of
the specific collective agreement provisions that are being construed. In considering
these as a whole, one must conclude that there has been a steady march away from the
early Webster analysis. The vast majority of arbitrators now understand the general
purpose behind call back to be compensation for disruption to one's personal life and
nothing more.
There is no doubt that the primary task before this or any board of arbitration is to
interpret the particular provisions of this collective agreement as they apply to the facts
put before us. Certainly, we must do this in the context of an understanding as to the
commonly accepted underlying purposes behind call back pay. Having reviewed the
authorities, we find that in the absence oflanguage which indicates something else, call
back entitlement should turn on whether an employee is obliged to perform "work" for
the employer where she would otherwise be entitled to private pursuits. In the absence of
language in the collective agreement that would require attendance at work, call back pay
should be understood as compensation for the disruption to one's own time and nothing
else. This is consistent with most of the more recent jurisprudence and certainly part of
the reasoning in St. Lawrence College.
This analysis however, cannot apply where the language chosen by the parties to
describe call back entitlement in the collective agreement suggests that a physical return
to the workplace is required as a threshold condition. Whatever is recognized as the
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general rationale for call back pay must give way in the face oflanguage agreed to by the
parties, which describes the conditions of entitlement in a different way.
In Grey Bruce, the board of arbitration dealing with the same collective
agreement found that the language in referring to the "hospital premises" in both the first
and last sentences of the article in question, indicated that the parties had agreed to
attendance at the workplace as a condition of entitlement for call back. Weare urged to
adopt this reasoning by the employer.
We do not consider ourselves bound in any way by the award in Grey Bruce.
Despite this, we find ourselves compelled to the same conclusion on a construction of
Article 17.02. Unlike the language of Article 6.04 in the St. Lawrence award, the
wording of Article 17.02 is very clear that eligibility for call back pay can only
commence where an employee has left the Hospital premises and is outside of regular
work hours. This is further underscored by the last sentence which makes it abundantly
clear that absent an arrangement with the Hospital, call back will not be paid where the
employee remains on Hospital premises to perform standby. All of this means that the
parties have agreed by their adoption oflanguage in Article 17.02 that it does matter for
purposes of entitlement, where the call back to work is performed. The parties for their
own reasons have recognized a distinction between having left the employer's premises
and then being obliged to return to them.
In St. Lawrence, an employee can commence their period of eligibility for call
back upon the ending of "regularly scheduled hours of work". The period of eligibility
then runs until the "next regularly scheduled shift". These are the two "book ends" which
the parties have used to "bracket" the period during which an employee may be eligible
to be paid call back. There is nothing in the article which could be construed to assign or
denote any significance to the physical location of the work being perfonned. On this
language (and particularly where there was no overtime or standby premium available) it
is obvious that the panel in St. Lawrence applied the appropriate reasoning and came to
the correct result.
The union's theory of the current case is that the purpose behind call back pay in
Article 17.02 is just to compensate the employee for the disruption to her personal life
and nothing more. A consideration of the following possible scenario illustrates why this
conclusion is not possible on the language of the article.
Consider the circumstances where an employee finishes her shift and goes on
standby with her phone and pager without arrangement with the employer. The
employee then chooses to remain for an hour socializing in the Hospital cafeteria. If this
employee takes a call from a patient while in the cafeteria on "her own time", this is as
clearly a disruption to her personal life as much as it would be anywhere else - including
her own home. This is how and where she has decided to spend her own time. In these
circumstances however, the parties have expressly agreed that the premium would not be
payable. This is because absent an arrangement with the employer, call back can only be
paid after the leaving of the Hospital premises has occurred - by virtue of the plain
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language of the first sentence of Article 17.02. In this scenario, even though the
employee's own time has been disrupted by having to take the call and to perform her
regular work, she is not eligible because she has not had to leave and then return to the
workplace.
This point is further made in the last sentence of the article which reinforces the
notion that if the employee remains in the Hospital physically once the standby period
begins, call back will only be payable by arrangement with the employer. In other words,
if the employer does not agree to this, call back pay would not be payable to the
employee who does not have to leave and then return to the workplace to perform the call
back.
In Article 17.02, the parties have indicated by their choice oflanguage how to
define the point at which an employee becomes eligible for call back and then when that
period of eligibility ends. Despite the fact that the jurisprudence indicates that the
general purpose of call back pay is to compensate an employee for disruption to personal
time, the parties to this particular collective agreement have indicated that there is a
significance which must be attached to whether the employee is obliged to come back to
work after having left the employer's premises. For them, the question of whether the
employee is obliged to return to the workplace 'means something". We are compelled by
this choice of language to conclude that an employee must leave the physical premises of
the Hospital and then return to the workplace, to become eligible for call back.
To be clear, we accept the union's argwnent that the quantum of the call back pay
and whether it is payable for each and every call taken or just once for all calls in an
evening is irrelevant to our interpretation of the collective agreement. The authorities are
clear that the amount of money earned by call back does not need to bear any rational
relationship to the value of the work performed. It may very well be that if a return to the
work place was not required for payment under Article 17.02, call back would be an
outrageously expensive item for the employer. We are not an interest board of arbitration
and the parties must be held to their bargain regardless of the financial consequences.
Unlike the circumstances in St. Lawrence where the work in issue could not
possibly be considered overtime (or anything else for that matter) under that collective
agreement, we have no difficulty in finding that the work here being performed falls
within the definition of overtime for purposes of Article 16.03 of the collective
agreement. This is work which is certainly in "excess of the normal or standard work
week.. .". The employer's practice of paying overtime for these calls is consistent with
the language of the collective agreement.
Our conclusion turns completely on the express language used by the parties in
Article 17.02. We find it more likely than not that when the parties agreed to the
language of this Article, their joint intention and understanding would be that an
employee would be obliged to return to the workplace as a condition of receiving call
back pay. More precisely, in the absence of the particular references to "leaving the
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Hospital premises" in the first and last sentences of Article 17.02, we would likely have
allowed the grievance.
Disposition
The grievance is dismissed.
IV
Dated at Toronto this 25th day of October 2004
"Sherril Murray"
Sherril Murray, Union Nominee
"Douglas K. Gray"
Douglas K. Gray, Employer Nominee
I dissent as attached
I concur
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Dissent of Sherril Murray
This member concludes that the plain meaning ofthe language of 17.02 is not consistent
with the majority view. The parties themselves recognized the "threshold" of the clause
by identifying "the premises" versus "the work". The last sentence of the clause simply
removes the criteria of having to leave the premises when on a prior arranged stand-by on
the hospital premises.
The analysis of the case by the majority on page 12 ignores the fact that at point 15 of the
"Agreed statement of facts" the parties agreed that there is no need to return to the
premises to obtain call back premium.
In this member's view, the grievance should have been upheld.
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