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HomeMy WebLinkAboutSmall 93-07-23 GRIEVANCE AWARD Headnote 92G563, 92G564 and 92G566 OPSEU Nos. 92G563, 92G564 and 92G566 OPSEU Loc. 237 Small (OPSEU) vs. Conestoga College Award dated May 12, 1993 (Mitchnick) OPSEU (Union) vs. Conestoga College Award dated May 12, 1993 (Mitchnick Health and Safety/Workload Grievance Upheld: Article 24.02 A of the collective agreement provides: The College will make reasonable provision for the conditions of safety and health in the employees' work areas in the College by conforming with the provisions of the Occupational Health and Safety Act and Regulations. Section 9 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 provides that a member of a Health and Safety Committee is entitled to time from work to perform his duties under the Act and to be paid for that time at his "regular or premium rate as may be proper". The grievor grieved that his time spent performing duties as a Health and Safety Committee member was not credited in his workload assignments (recorded on his Standard Workload Form ("SWF") under Article 11) and that the College had failed to pay him for the time. The Union filed a similar policy grievance. The Employer raised a preliminary objection to the jurisdiction of the Board, citing the decision of the Divisional Court in Re Fanshawe (1990), 70 D.L.R. (4th) 494 for the proposition that work-load issues may only be decided by a work-load arbitrator under the grievance procedure set out in Article 11. The Employer also relied on the decision of a work-load arbitrator denying the grievor's claim for credit for his health and safety work in his SWF. The Board held that it had jurisdiction to hear the grievances. It found that the work-load arbitrator had failed to deal with "the whole" of the grievor's complaint in expressly declining to consider the application of OSHA to the grievor's situation. Implicitly, the Board accepted the Union's argument that Article 24.02 A gave the Board overlapping jurisdiction with the IN THE MATTER OF. AN ARBITRATION BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION - and - CONESTOGA COLLEGE Grievances of Ron Small and OPSEU OPSEU Nos. 92G563, 92G564 and 92G566 BefOre: M.G. Mitchnick - Chairman Brian Switzman - Union Nominee Andrew Shields - Employer Nominee Appearances: FOr the Union: Maureen Webb, counsel John Berry Ron Small For the Employer: R.J. Drmaj, Counsel Colin MacGregor Delores Smith Hearing held .in Kitchener on May 12,.1993. AWARD This matter arises in connection with the performance of the duties of a teacher-member of the College's joint health and safety committee established pu-rsuant to the proVisions of section 9 of the Occupational Health and Safety Act, and in particular with the question of what constitutes proper "paYment,, 'for the time required to attend the meetings of that committee. The individual grievor here, Mr. Ron Small, is a member of both the Guelph'camPus committee and the College-wide committee, and it is recognized that the provisions of the Occupational Health and Safety Act are incorporated into the collective agreement by virtue of Article 29 of the collective agreement. That Article is now Article 24 and provides: Article 24 HEALTH AND SAFETY 24.01 Ai~ employees shall be covered by Workers' Compensation. 24.02 A The College will make reasonable provision for the conditions of safety and health in the employees~ work areas in the College by conforming~with the Provisions of the Occupational Health and Safety Act and Regulations. 24.02 B Where the employee in the performance of duties uses safety equipment as required under the Occupational Health and Safety Act of Ontario, the College shall provide such equipment to the employee at no cost. Specific eligibility problems shall be resolved by the Joint Occupational Health and Safety Committee. Mr. Small has filed two grievances which are before the board. The first reads: - 2 - STATEMENT OF GRIEVANCE I grieve that contrary to ArtiCles 7, 29 and any~other Article of the ColleCtive Agreement that may apply, the College has failed to conform to the provisions of the Ontario Occupational Health and Safety Act by not providing time to act on the required committees. SETTLEMENT DESIRED Ail time spent on OHSA Joint Union Management Committees be reflected on my workload assignments, i.e. SWF as provided for in Article 4. The Union has filed a similar grievance in its own name. The second grievance of Mr. Small reads: STATEMENT OF GRIEVANCE I grieve that contrary to Articles 4, 7 and any other related Article'of the Collective Agreement that may apply, the College has failed to include time.on my SWF for the required time as a member of the legislated committees required by the Province under the Occupational Health and Safety Act. SETTLEMENT DESIRED That the time spent on these committees be: 1. Recognized on a hour for hour basis under the complimentary hours on my current SWF. 2. Recognize on a hour for hour.basis under complimentary hours on future SWF's when I act as a member'of these legislated.committees. Article 7 is now Article 6, the "Management Rights" clause,- which Concludes.in Article 6.2 with the words: 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. - 3 - And Article 4 is the "Workload" article, now Article 11. The Union concedes that, in light of the special procedure set out in the collective agreement, it cannot ask this board for a remedy under Article 11, and withdraws that portion of the complaint from the board. The Union submits that the board does have the jurisdiction and the duty, under Article 24.02 A however, to ~decide whether the College has properly "paid" Mr. Small.for his health and safety responsibilities under the Act, and seeks from the board (particularly in light of the Workload-Arbitration decision that will be referred to) a declaration that the College has to credit and compensate employees for time spent doing such health and safety duties. The Union notes further that it does not ask the board to direct the employer as to how that is to be carried out, although it acknowledges that the sought-for declaration by the board may affect the way.the College applies Article 11 in the future, as well as futUre rulings by a Workload Arbitrator. The Union adds that the board is not being asked to apply the provisions of Article 11 to the particular facts at hand, although it does have to have an understanding of how Article 11 is structured in order to understand the Union's argument as to why Mr. Small has not been "paid" fOr these hours in this case. The only point that needs to be established here, the Union emphasizes, is that this time put in by Mr. Small has to be given credit for and compenSated by the College,'but that - 4 - it still remains.up to the College whether to accomplish that through "SWF" credits under Article 11, or by some o~her means such as straight "overtime". If the College does choose the former method, the Union notes however, there would in fact be no addition to the compensation payable to Mr. Small unless the addition of these health and Safety hours brought his weekly total beyond the 44 maximum permitted by Article 11.01 B 1. The College, for its part,.acknowledges that Mr. Small is entitled to take the time necessary to attend the meetings of the health and safety committee, and that, in accordance with the Act, he is to be "paid" for such time. However, the College asserts, Mr. Small was paid for~his time: he is a salaried employee, and all meetings of the health and safety committee are scheduled during the regular "day-time" hours. If Mr. Small wants to claim that his attendance at those meetings interfered with his ability to perform his other duties within the normal time-frame contemplated by his SWF, there is an evidentiary onus upon him to prove it. This is particularly s© where, as here, the College asserts, the extra activity is not even assigned by the College, but rather is in the nature of "voluntary"-service, as part of the professional responsibilities of a teacher in looking out for the health and safety interests of the.group. And more importantly the College argues, relying on the decision of the Division Court in Re: Fanshawe (1990), 70 D.L.R. '(4th) 494, the place to establish such a claim is before a Workload - 5 - Arbitrator (where the College will once again argue that n_9o additional credit ought'to be given for these activities Under the Occupational Health and Safety Act) and not before a "regular" board of arbitration established pursuant to the provisions of Article 32. The relevant provisions of the Occupational Health and Safety Act provide in section 9: (6) Composition of committee.- A committee shall consist of, (a) at least two persons, for a workplace where fewer than fifty workers are regularly employed; or (b) at'least four persons or such greater number of people as may be prescribed, for a workplace where fifty or more workers are regularly employed. (?) Idem.- At least half the members of a committee shall be workers employed at the workplace who do not exercise managerial functions. (S) 'Selection of members.- The members of a committee who represent workers shall be selected by the workers they are to represent or, if a trade union or unions represent the workers, by.the trade union or unions. '(20) Response to recommendations.- A constructor or employer who receives written recommendations from a committee Shall respond in writing within twenty-one days. (21) Idem.- A response of a constructOr or employer under subsection. (20) shall contain a timetable for implementing the recommendations the constructor or employer agrees with and give reasons why the constructor or employer disagrees with any recommendations that the constructor or employer does not accept. (2Z) Minutes of proceedings.- A 'committee shall maintain. and keep minutes of its proceedings and make.the same available for examination and reView by an inspector. - 6 - (23) Inspections.- Subject to subsection (24),. the members of a committee who represent workers shall designate a member representing workers to inspect the physical condition of the workplace. (26) Idem.- Unless otherwise required by the regulations or by an order by an inspector, a member designated. under subsection (23) shall inspect the physicat condition of the workplace at least 'once a month. (27) Idem.- If it'is not practical to inspect the workplace at'least once a month, the member designated under subsection (23)shall .inspect the physical condition of the workplace at least once. a year, inspecting at least 'a part of the workplace in each month. (31) Idem [Information reported to the. Committee].-The members of a committee who represent workers shall designate one or.more such members to investigate cases ' Where a worker is injured or critically injured at a workplace from any cause and one of those members may, subject to subsection 51(2), inspect the place where the accident occurred and any machine, device or thing, and' shall report his or her findings to a Director and. to the committee. (33) Meetings.- A committee shall meet at least once every three months at the workplaCe and may be required to meet by order of the Minister. (34)- Entitlement to time from work.- A member of a committee' is entitled to, (a) one hour or such longer period of time as the committee determines is necessarY to prepare for each committee meeting; (b) such time as it'necessary to attend meetings of the committee; and (c) such time as is necessary to carry out the member's' duties under subsections (26), (27) and (31). - 7 - (35) Entitlement to be paid.- A member of a committee shall be deemed to be at work during the times described in subsection (34) and the member's employer, shall pay' the member for those times at the member's regular or premium rate as may be proper. ArtiCle 32 of the collective agreement provides: Article 32 GRIEVANCE PROCEDURES 32.01 Articles 32.02 to 32.05 inclusive apply to an employee who has been employed continuously for at least the preceding four months. Grievances 32.03 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under 32.12 C) in the following manner and sequence provided it is presented Within seven days of the immediate supervisor's reply to the complaint ... 32.04 A Any matter so referred to arbitration, including any question as to whether a matter is arbitrable, shall be heard by a Board .of three arbitrators composed of an arbitrator appointed by each of the College and the Union and a third arbitrator who shall be Chair ... 32.12 C "Grievance" means a complaint in writing .arising from the interpretation, application., administration or alleged contravention of this Agreement. With respect to the.application of the provisions of Article 11 (attached), on the other hand, and "workload complaints" made by members of the faculty thereunder, the specific procedure set out by the parties in that Article are synopsized by the Divisional - 8 - Court in FanShawe as follows, at page 496 (using the old "Article 4" numbers): If a teacher is not in agreement with the assigned work-lOad, there is provision for review by a college work-load monitoring group (the "Group"): see art. 4.02(1)(c-f),.(2), (3), (4). The Group is composed of an equal number of appointees of each of the particular colleges and the Union: art. 4.02(2). If the matter is not resolved by the Group, it may be referred to a work-load resolution arbitrator ("WRA"): art. 4.02(5) and (6). Both a decision of a Group and an award of a WRA are expressed to be binding: see 'art. 4.02(4) and (6). ArtiCle 4.02(1)(f)(i) provides that any difference arising from the interpretation, application, administration or alleged contravention of arts.' 4.01 or 4.02 shall be discussed by a teacher with his or her immediate supervisor. Failing settlement, the teacher may refer the complaint in writing to the Group. The complaint will then follow the procedures outlined in art. 4.02(2) through to 4.02(6) which would involve the Group and might involve a WRA. In summary, art. 4.provides for the establishment and administration of work-load which is initially a matter of discussion between the individual teacher and the particular college. If a teacher is not satisfied with the assignment of work-load, or with the way 'it is administered, there is prOvision for resolution of the dispute by the Group at the college or, if neceSsary, by a WRA. · There the Union had filed a "policy" grievance alleging that the College had violated Article 4 by assigning "partial contact hours" in violation of Article 4.01(3). The board of arbitration (constituted, like us, under what was then Article 11 and is now Article 32 of the collective agreement) ruled that it had jurisdiction, and proceeded to deal with the matter. That - 9 - decision of the board was quashed by the Divisional Court, Saunders J. writing, at page 498: In my opinion, the parties to the colleCtive agreement intended that'work-load disputes should be dealt with separately from other grievances. It is difficult to imagine what more they could have dOne to make that clear. The work-load process is designed to provide speedy, informal and individual resolution of . disputes in the context ofthe course under consideration at each institution. A teacher who is not satisfied with a work-load assignment~has recourse by way of complaint under art. 4. A teacher cannot grieve a work-load matter under art. 11... This was a work'load issue arising under art. 4.01 and the board had no authority to deal with it under art. 11. The board incorrectly interpreted its jurisdiction and the award must be set aside. In the present case, Mr. Small actually did in fact ' bring his case for more credit hours on his SWF to a WRA, but was unsuccessful. The reasons given by the arbitrator began as follows: Complainant - Ronald Small Mr.. Small is seeking credit for one and one-half hours per week in his workload assignment for participation in the College and Guelph Campus Safety Committees. Decision: The credit is denied. Discussion: Evidence was entered that the complaint was not made in the time period specified by in the Collective Agreement. This could be justification for denial but there are other considerations which are more fundamental. The .time issue has been set aside only, not discarded, in the determination of the award. - 10 - Mr. Small has a full-time teaching assignment in a College program. He is also teaching in a course in which the College is acting as a broker. In this course his participation is voluntary. The ability to carry this additional teaching load seems to deny any claim that the participation in the work of the safety committees is onerous and thus justification for relief. Had the WRA purported to deal with the whole of Mr. Small's claim for the year before us, that may well, given his authority under Article 11, have been an end to the matter for us, whether or not the boardwere to view the grounds so articulated to be compelling. But the WRAhimself went on to assert a disclaimer in the matter as follows: In the Regulations of the Ontario Occupational Health and Safety Act provision is made, for members of safety committees, to ~be given time from work to participate. Provision is also made for payment for time in preparation for meetings. The application to teachers in the Colleges of Applied Arts and Technology is not clear. In some respects teachers are full-time employees and in other reSpects they work under a contract. The resolution of this issue is not appropriate to Workload Arbitrators. It is a matter for collectively bargaining [sic] or some judicial process. the denial in this arbitration-~may facilitate appropriate action for resolution.' And then, having noted that he did not feel he was in a position to decide the matter, the learned WRA continued .on in the decision to provide some insight into his own view of the matter as follows: The organization of colleges is more collegial than corporate. The employer/employee relationship can be characterized, in the colleges, as more that of a partnership and less that'of a master to servant. . 11 - Safety is of mutual concern to both the administration and the teachers. Teachers, as professionals, quite properly take on a responsibility for safety in partnership with administration. In thecollegial " organization nOtions of sharing of responsibility for safety should predominant [sic]-over notions of payment. In the Collective Agreement the Complementary Functions are identified as appropriate to the professional role of the teacher. The emphasis on activity relative to the 'teaching/learning.processes seems clear. Safety considerations are very peripheral and meetings can be scheduled at times that do not conflict with teaching and related activities. The items in the Collective agreement respecting Complementary Functions seem not to contain language that would prompt inclusion of participation on safety committees. This decision is in effect for the Academic Year commencing on September 1, 1991 and concluding on August 31,' 1992. Those views of Mr. Hagar, along with his express rejection of the notion that he ought to decide the issues of characterization.under the Occupational Health and Safety Act, are particularly interesting in light of the way another WRA, Rodney Dale, has dealt with the matter at Fanshawe College (complaint of Professors Jolliffe and Pietens, decision issued March 16, 1992). There in fact the parties had already recognized that the duties of the faculty-members of the College's joint health and safety committee were properly to be recognized and credited on the SWF, and the only issue before Mr. Dale was how much, if any more credit, should be giVen for the added responsibilities created for committee members under the amendments to the Occupational Health and Safety Act provided in - 12 - 1990 by Bill 208. The parties themselVes had set the initial credit at 6.5 hours a week, and Mr. Dale found that there should be added to that an additional 1.5 hours a week on the basis that: I am satisfied that the implementation of Bill 208 has required health.and safety representatives to devote additional time in order to fulfil their responsibilities. The duties which have required additional 'time include testing, lengthened meetings, a shorter time frame withinwhich to complete inspections, some additional preparation time for meetings as well as the other matters which have been enumerated in the evidence. (page 10 of award) In the view of the board, the approach to this matter that has been adopted by the parties themselves at Fanshawe College is the correct one. Normally, we recognize, when an employee is simply paid on "salary", without reference to actUal work performed for the employer, any function carried out during normal "working hours" could be said to be "paid for" so long as there is no deduction from salary for that time. However, as the Union points out, the situation for the academic members of a College can be seen, under the provisions of this collective agreement, to differ from that in a number of respects, in the way that "salary" is tied to a particular workload. In Article 14.02 C 1 and 2, for example, provision is made for pro-rating salary if the teacher should opt for less than a full workload. More importantly, Article 11.01 B 1 is very specific in setting out the standard workload, tied to the SWF's, and Article 11.01 J 2 in fact provides.for overtime beyond those standard limits. Essentially what the College is saying here is that the issue is an evidentiary one. But that is not at all the Way the workload Article (Article 11) of this agreement has been structured. On the contrary, rather than argue in each individual case.over how long a particular attributed function took or ought to have taken a professor, or when he or she actually did it, the Article simply operates on the basis of assumed standard work-times. And. here, added to those assumed standard work-times, whenever Mr. Small was able to carry them out, is the actual time that he had to work into his week for the purpose of preparing for .and attending the meetings of the joint health and safety committee. And as the Union notes, the amount of time for which the member can claim to be paid is striCtly' defined by the Act. As for the argument that this work should be considered as voluntary or gratuitous, it seems to us that the whole principle of it being recognized as time when the employee is "deemed to be at work" is an attempt to get away from the notion that this activity simply is something "personal" or "voluntary"., and not an attribute of the employee-member's actual responsibilities.in the workplace. Rather, what the Act seeks to recognize is that the time devoted on both sides to health and safety in the workplace trui'y is a contribution to that workplace, whether one puts it at the loftiest level of social policy, or at the most practical level of ~minimising Workers' Compensation exposure. - 14 - In any event, as a matter of interpreting Article 24.02 A. of the collective agreement, it is the finding of the board that the College to this point has not properly reflected the time spent by Mr. Small in connection with attending the meetings of the joint health and safety committee, and that it must now do so. If that is going to be done as a matter of SWF'ing, we agree that that is a matter for Article 11, and that any dispute over the actual adjustment is a matter for the procedure provided under that Article, including the reference back to a Workload Resolution Arbitrator if necessary. Given the comments offered by Mr. Hagar at the Same time as he was expressly declining .to decide this issue, we would~ not want to be taken as suggesting in the foregoing statement-that the question of the appropriate adjustment either must or should be returned to Mr.' Hagar, as opposed to another WRA. The board will remain seized.of this matter in the event the College chooses to deal with it other than through SWF'ing, and the parties are not ad idem with respect to the result. Dated at Toronto this 23rd day of July, 1993. CHAIRMAN "B. Switzman" I CONCUR: UNION NOMINEE "A. Shields" ICONCUR: 'COLLEGE NOMINEE