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HomeMy WebLinkAboutUnion 06-03-24 ., , In the Matter of an Arbitration Between ~ 4p/? .V~ D (J 4 '" CITY OF HAMILTON GRit, . .8006 (The City) "".~ . /1f1:1~, ", ~. - And - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (LOCAL 256) (The Union) Re POLICY GRIEVANCES File #s 04-256-041; 05-256-067 & 05-256-095 Before: Gerry Lee Arbitrator For the Union: Mario Posteraro, OPSEU Local 256 Jamie Ramage, OPSEU Local 256 For the Emplover: Julie Shott, Labour Relations Officer Brent Browett, Director of EMS Hearing:: February 25 and 26,2006 I . Decision A hearing in this matter was held in Hamilton, Ontario, on February 25 and 26, 2006. The parties agreed that I have been properly appointed under the terms of the collective agreement and that I have jurisdiction to hear and determine the matters in dispute between them. The parties entered into a Memorandum of Agreement titled "Overtime Distribution Process" on November 18, 2004. Since that time, the parties have experienced many implementation difficulties regarding the various terms and conditions set out in this agreement. This has resulted in numerous individual grievances and three policy grievances which are the subject matter ofthis award. After conducting an intensive mediation session with the parties, it was apparent that an expeditious resolution of this complex matter was necessary. It was therefore decided that instead of dealing with the merits of the three policy grievances, I would review the parties' extensive submissions and comprehensive briefings and provide the parties with an overtime distribution process that would be incorporated into the collective agreement. It should be noted that in reaching my decision, I have taken into consideration the many overtime distribution mechanisms that I am familiar with not only at the City of Hamilton, but with other Municipalities. As mentioned above, there are numerous individual overtime distribution process grievances outstanding. While these grievances are not before me, the parties are advised to review the merits of such grievances taking into consideration the direction provided by me in this award. Having carefully considered all of the evidence and representations of the parties, the agreements reached and the various documents and other material put before me, the parties are directed to include the following Overtime Distribution Process language into Page 2 ! , their pending collective agreement. As per the parties' agreement, this new language will come into effect within twenty-one (21) days of the date of this award. Accordingly, the policy grievances referred to above are resolved based on the following decision: Add a new clause to collective agreement OVERTIME DISTRIBUTION PROCESS 1. For the purposes ofthis agreement, a scheduled open shift is defined as any shift that becomes open twenty-four (24) hours or more prior to the start ofthe shift that the Employer deems necessary to backfill. For the purposes of this agreement, a non-scheduled open shift is defined as any shift that becomes open less than twenty-four (24) hours prior to the start of the shift that the Employer deems necessary to backfill. 2. Scheduled open shifts may be distributed to part time staffbased on their submitted availability to a maximum oftwenty-four (24) hours week (calculated from Sunday to Saturday). 3. Non scheduled open shifts (e.g. short notice, staff booking sick, etc.) will be offered to the part time employee in order of seniority, to a maximum of twenty- four (24) hours week (calculated from Sunday to Saturday). The employer may deem them as not available for that shift based on their submitted availability. 4. Calls for shifts as in items 2 or 3 will be made by the scheduler or designate in the following manner: The employee will be contacted at the contact number supplied by the employee. The scheduler will allow the number to ring ten (10) times or ten (10) busy signals before considering it to have been unanswered. If within the ten (10) rings an answering machine is engaged the scheduler will leave a message stating: "This is HES EMS calling on (date and time) for (paramedic name) to offer you Page 3 . an open shift on (specify date and day or night shift). Please call back if you are interested ". For calls placed to a personal pager number, the Scheduler will enter pager code "777" 5. If open shifts ( overtime) remain available as deemed by the employer, after completing items 2 and 3, then any further call out will commence with the full time employees as described below. 6. The most senior full time Employee, subject to their submitted overtime availability, will be contacted at the contact number supplied by the Employee, and offered their choice of one (1) shift for the twenty-four (24) hour period (07:00 to 07:00) requiring backfill. 7. The shift will have been deemed to have been offered after a period of two minutes after hanging up the phone, or if the Employee has either accepted or declined the shift. The EMS Scheduler will then proceed to the next available Employee on the seniority list, in accordance with the provisions of this agreement. This process will continue until such time as an Employee accepts the shift, either during the first contact or the first employee call back, and they are assigned the shift by the scheduler or their designate, at which time the shift will be deemed to have been filled. 8. The EMS Scheduler will not be required to call those employees, and the overtime shift may be deemed to have been offered to those employees, if: i) the employee is scheduled to work, or scheduled for vacation, or scheduled for continuing education with the employer, in the twenty four hour period for which the shift(s) are available; or Page 4 : . ii) issuing the shift would place the parties in contravention of the provisions of the Employment Standards Act including, but not limited to, minimum scheduled hours of work between shifts and maximum scheduled hours per week. 9. In the event that the EMS Scheduler is unable to fill the open shift(s) with the above provisions, the parties agree that notwithstanding the provisions of items 2 and 3, the Employer may utilize part time staff in excess of twenty-four (24) hours per week to fill the open shifts by calling in order of seniority available part time staff. 10. It is understood that in the event shifts remain open after the Employer has exhausted the provisions of items 1 through 9, the Employer may, dependent on operational considerations, utilize other qualified staff to fill the shifts. 11. The EMS Scheduler may abandon attempts to fill shifts after one of the following occurs: i) The shift(s) have been backfilled. ii) The list of available staff has been exhausted and the shift(s) are not able to be backfilled. iii) The shift has started. iv) As it applies to shifts attempting to be filled for staff requesting time off other than for vacation, after part time staff have been exhausted to their maximum of twenty four (24) hours per week and the shift(s) are not able to be backfilled. 12. The EMS Scheduler will resume call out for the next twenty four (24) hour period starting with the most senior part-time Employee available, and for full time starting with the most senior Employee on the seniority list. Page 5 . J , 13. In the event that it is determined that there has been a breach of this Overtime Distribution Process by the employer which results in an otherwise eligible employee being denied an overtime opportunity, the individual in question shall be paid fifty percent of the missed overtime opportunity at the appropriate rate of pay. 14. The EMS scheduler will maintain a record of the time and date the shift(s) became "open", a "call log" indicating which employee(s) was offered the shift(s), and the time and date the shift(s) was offered to the Employee(s). The records will be posted to a folder on the City network accessible to the Union executive. These records will be posted every Wednesday for the previous seven (7) days. I shall remain seized with respect to this matter should the parties encounter any difficulties regarding the implementation of this award. Dated at Markham this 24th day of March 2006. ~ Gerry Lee Arbitrator Page 6