HomeMy WebLinkAboutUnion 13-10-23
IN THE MATTER OF AN ARBITRATION
BETWEEN
FANSHAWE COLLEGE
(the “Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 110
(the “Union”)
RE: UNION GRIEVANCE NO. 2012 – 0110 - 003
ARBITRATION BOARD: NORM JESIN,SHERRIL MURRAY AND CARLA ZABEK
APPEARING FOR THE EMPLOYER: ROBERT J. ATKINSON – COUNSEL
APPEARING FOR THE UNION: LESLEY GILCHRIST – GRIEVANCE OFFICER
Hearing was held in London, Ontario on September 21, 2013.
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AWARD
This case concerns the imposition by the Employer of terms of reference for the
administration and operation of a joint health and safety committee, which has been in turn
established in accordance with the Occupational Health and Safety Act, R.S.O. 1990, c. O.1
(hereinafter, OHSA). It is the Union’s position that the Employer may not unilaterally impose
such terms of reference but rather must negotiate them with the Union before implementing
them. The Union asserts that by failing to negotiate the terms with the Union the Employer is in
violation of the collective agreement as well as OHSA.
The Employer asserts that the grievance does not raise a prima facie case. Rather the
Employer submits that it is its obligation under OHSA and not the Union’s, to establish and
ensure the operation of the committee in accordance with OHSA and that it is responsible for
determining the appropriate terms of reference to ensure the effective operation of the
committee. The Employer submits that neither OHSA nor the collective agreement imposes any
obligation or role to the Union in the implementation of terms of reference for the committee.
The facts giving rise to this dispute are set out below:
The Employer operates in a number of campuses and maintains joint health and safety
committees at its various campuses. The committee established at the London campus consists
of 8 members – four from management and 2 each from the two unions representing the
employees at the London campus. This Union, Local 110, represents the academic staff and two
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members on the committee are members of that local. The committee has operated under
terms of reference in the past. The last agreement between the Employer and the unions over
these terms expired in 2009. Subsequently the parties were not in agreement over proposed
changes to those terms and the parties entered into mediation in 2010 in an attempt to reach
agreement. The mediation was unsuccessful and the existing terms remained in place.
In late 2010 or early 2011 Brenda Henry, the Employers Manager of Environmental
Health and Safety Service, began the process of amending the terms of reference. She testified
that she commenced this effort so that the terms would more accurately reflect existing
practices and requirements. A draft of the amended terms was sent to the various committees
operating in the college including the committee for the London campus. According to Ms.
Henry, the satellite committees did not request any major changes to the terms drafted by Ms.
Henry. The policy was to be effective from Jan uary, 2012 and a draft was put before the
committee for review in the fall of 2011. When the Union learned of the amendments it took
the position that the Employer should negotiate the amendments with the Union. That did not
happen and instead the Employer indicated that it was implementing the terms as of January,
2012.
The Union has a number of objections to particular amendments. Those objections were
described at the hearing by John Conley, the worker co-chair of the committee and by Darryl
Bedford, the Union president. One of the main objections was that the committee was
described as a subcommittee of the Employer’s Senior Leadership Committee (SLC). Along with
that the Union opposed the provision that Ms. Henry would act in an advisory capacity on the
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committee – albeit without a vote - in addition to the four manag ement members. The Union
was of the view that the committee should be independent of management and that these
provisions compromised its independence. It should be noted that the previous terms noted
that the committee was made a standing committee of the Employer’s Administrative Council,
although there was no mention of having an additional management member as an advisory
member.
More particularly the Union opposed a number of changes to other detailed provisions
regarding the operation of the committee. For example the Union opposed the provision that
the committee was to meet five times per year. The Union has proposed that the committee
meet ten times per year. On this point, Ms. Henry countered that the co -chairs have a
discretion to call additiona l meetings and that in fact additional meetings have been held when
requested. The Union has also opposed a provision setting the maximum duration of any
meeting as three hours. The Union opposed a change requiring notice to be given for the
appointment of new members. The Union has also opposed a provision that a co-chair can only
serve for a maximum of two years. It also opposed an additional provision requiring members
to maintain confidentiality and a further requirement that members maintain an activity log.
Indeed, the worker members have not kept a log and the committee has not enforced this
requirement. The Union referred to a number of other provisions to highlight the fact that they
were implemented without discussion and agreement by the Union
In argument it was the Union’s position that by unilaterally implementing the terms of
reference, the Employer has violated articles 6 and 24 of the collective agreement between the
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parties, as well as s. 9 of OHSA. Neither of collective agreement provision s referred to make any
reference to a joint health and safety committee although article 24 essentially requires the
Employer to comply with the provisions of OHSA. Article 6 is the provision setting out the
general management functions in the operation of the college. Section 9 of OHSA is the section
governing the establishment and operation of a joint health safety committee in the workplace.
The relevant sections are set out below:
9 (2) A joint health and safety committee is required,
(a) at a workplace at which twenty or more workers are regularly employed;
(b) at a workplace with respect to which an order to an employer is in effect under
section 33; or
(c) at a workplace, other than a construction project where fewer than twenty
workers are regular ly employed, with respect to which a regulation concerning
designated substances applies. R.S.O. 1990, c. O.1, s. 9 (2).
…
(4) The constructor or employer shall cause a joint health and safety committee to
be established and maintained at the workplace unless the Minister is satisfied that
a committee of like nature or an arrangement, program or system in which the
workers participate was, on the 1st day of October, 1979, established and
maintained pursuant to a collective agreement or other agreement or ar rangement
and that such committee, arrangement, program or system provides benefits for
the health and safety of the workers equal to, or greater than, the benefits to be
derived under a committee established under this section. R.S.O. 1990, c. O.1,
s. 9 (4); 1993, c. 27, Sched.
…
(6) A committee shall consist of,
(a) at least two persons, for a workplace where fewer than fifty workers are
regularly employed; or
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(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. R.S.O.
1990, c. O.1, s. 9 (6).
Idem
(7) At least half the members of a committee shall be workers emp loyed at the
workplace who do not exercise managerial functions. R.S.O. 1990, c. O.1, s. 9
(7).
Selection of members
(8) 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. R.S.O. 1990, c. O.1, s. 9 (8).
...
Committee to be co-chaired
(11) Two of the members of a committee shall co-chair the committee, one of
whom shall be selected by the members who represent workers and the other of
whom shall be selected by the members who exercise managerial functions.
R.S.O. 1990, c. O.1, s. 9 (11).
…
Meetings
(33) A committee shall meet at least once every three months at the workplac e
and may be required to meet by order of the Minister. R.S.O. 1990, c. O.1, s. 9
(33).
Entitlement to time from work
(34) 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 is necessary to attend meetings of the committee; and
(c) such time as is necessary to carry out the membe r’s duties under subsections
(26), (27) and (31). R.S.O. 1990, c. O.1, s. 9 (34)
…
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Dispute resolution
(39) Where a dispute arises as to the application of subsection (2), or the
compliance or purported compliance therewith by a constructor or an employer,
the dispute shall be decided by the Minister after consulting the constructor or the
employer and the workers or the trade union or trade unions representing the
workers. R.S.O. 1990, c. O.1, s. 9 (39)
The Union asserts that OHSA has clearly provided for the establishment of a committee
which is independent of the Employer and that the terms of reference imposed threaten that
independence. The Union notes that the s. 9(7) of OHSA allows for a worker dominated
committee, but not an employer dominated committee as it provides that “at least half” of the
members of the committee must be worker dominated. According to counsel, the Employer has
removed the independence of the committee by making part of the leadership committee and by
allowing Ms. Henry to sit in committee meetings in an advisory capacity. The Union also notes
no terms of reference are required under OHSA and the terms implemented, insofar as they
impact on the freedom to choose its members or its co -chairs, violate s. 9. Even where the terms
do not specifically violate a provision of OHSA, they must – according to the Union – be
negotiated.
It is essentially the Employer’s position that the grievance does not raise an arbitrable
issue. The Employer notes that altho ugh the collective agreement makes reference to other joint
committees there is no reference in the collective agreement to the joint health and safety
committee. The Employer notes that under s. 9(4) of OHSA it is the Employer’s, and not the
Union’s obligation to establish and maintain the committee. Therefore, there is nothing improper
in making the committee the subcommittee of an Employer committee to ensure that it is being
maintained in accordance with its obligations under OHSA. Furthermore, there is nothing
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improper in the Employer imposing reasonable rules to ensure the efficient operation of the
committee in accordance so as to ensure compliance with OHSA.
It is indeed the case that the collective agreement makes no reference to a joint health and
safety committee. We do note however, that the Employer is required by the collective
agreement to comply with the provisions of OHSA. Thus, if the implementations of the terms of
reference in any way violate the terms of OHSA, that implementation would a lso violate article
24 of the collective agreement.
We agree with counsel for the Employer that it is the Employer’s obligation under OHSA
to establish and maintain the joint health and safety committee. As a result there is nothing
inherently improper in establishing terms of reference or rules for the committee which are
designed to facilitate the efficient operation of the committee and to ensure compliance with
OHSA. Quite properly the terms drafted by the Employer were put before the committee for
consideration and the worker members of the committee were offered the opportunity to
comment on them. Any proposed changes to the rules could have been brought before the
committee for consideration.
We would note that for the most part the rules meet the minimum requirements set out
under OHSA. For example, the time allotted for meetings as well as the number of meetings
required under the terms are more than required under OHSA. We also note that additional
meetings may be held as required. With regard to the Employer’s organization of the committee
as a subcommittee of the leadership committee, we see that complaint as a matter of form over
substance. We do not see how that impedes worker participation or advocacy on the committee.
We note that under the previous terms, the joint committee was described as a standing
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committee of the Employer’s Administrative Council and we do not see a substantial difference
in making the committee a subcommittee of the leadership committee. Similarly we do not find
the participation of Ms. Henry to be in violation of either the collective agreement or OHSA. She
does not have a vote on the committee. Rather, she is present at meetings simply to advise as to
the feasibility from the Employer’s point of view, of recommendatio ns or suggestions that may
be made by the committee. Where the Employer’s rejection of a committee recommendation or
even of a worker position is in violation of OHSA, that may be remedied , either through a
grievance or by the dispute resolution mechanism set out in s. 9(39) of OHSA.
In summary, so long as the terms do not conflict with or impede with the operation of
OHSA or impede the rights or obligations regarding worker participation on the committee, we
do not see any violation of the collective agreement or of OHSA in their implementation. In
general, the terms in this case are in substantial compliance and but for the following caveat, we
find no reason to interfere with them.
We do not think the Employer may set rules for the appointment of worker members of
the committee that are different than those in OHSA unless those rules are agre ed to. The
Employer may not unilaterally place restrictions not found in OHSA on the right of the workers
to choose their representatives, unless those restrictions have been agreed to. Thus, the
Employer, in our, view, may not impose term limits on the appointment of worker co -chairs that
are not present in the act, and were not present under the previous terms, unless those limits are
agreed to. Similarly, any members chosen by the workers to sit on the committee in accordance
with OHSA should not be prevented from sitting on the committee by new rules that have not
been agreed to by the committee. Thus rules for setting a pre-requisite notice period for the
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appointment of members is not present in OHSA, and should also not be implemented. The
grievance is allowed therefore only to the extent necessary to prevent implementation of new
restrictions surrounding the appointment of worker members unless they were agreed to by the
Union or unless they were present in the previous terms of reference. Beyond that the grievance
is dismissed.
Dated at Toronto, this 23rd day of October, 2013
N J
Norm Jesin, Chair
I dissent (see partial dissent below)
______________________________
Sherril Murray , Union Nominee
I concur
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______________________________
Carla Zabek, Employer Nominee
Dissent of Sherill Murray:
The trade union is responsible for the appointment of its members and thus I
concur with the majority with respect to the findings in this regard :
“We do not think the Employer may set rules for the appointment of worker members of the committee
that are diffe rent than those in OHSA unless those rules are agreed to. The Employer may not
unilaterally place restrictions not found in OHSA on the right of the workers to choose their
representatives, unless those restrictions have been agreed to. Thus, the Employer, in our, view, may
not impose term limits on the appointment of worker co -chairs that are not present in the act, and were
not present under the previous terms, unless those limits are agreed to. Similarly, any members chosen
by the workers to sit on the committee in accordance with OHSA should not be prevented from sitting
on the committee by new rules that have not been agreed to by the committee. Thus rules for setting a
pre -requisite notice period for the appointment of members is not present in OHSA, a nd should also not
be implemented”
With all due respect, this member must partially dissent from the view of the
majority. It is unacceptable for the employer to set any rules for this joint
committee, (not just those that contradict the Act) and unilater ally establish a
policy that is not agreed to by the Joint Health and Safety Committee.
First and foremost the Act establishes a Joint Health and Safety Committee
between the workers and the employer, establishing a relationship of equity
between the parties. The numerous provisions are executed on a committee
driven basis with a few exceptions such as the employer is held responsible for
ensuring the committee is established and supported, the worker rep’s are to
investigate serious injury.
The unilaterally imposed policy inserting Ms. Henry (another management
position) into that committee disrupts the equilibrium. Further Ms. Henry (the
author of the policy) has a vested interest in upholding the management
approved policy.
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Exhibit 5 is a clear example of this:
Mr. Conly as the co-chair, worker member and representing the worker members
writes to Ms. Henry recommending the status quo regarding the frequency of
meeting (ten per calendar year) .Ms. Henry rejects the recommendation citing the
minimum requirements under the Act and relying on the college policy to deny
this recommendation. That is clearly the role of neither a “resource person” nor
even a management representative....That is precisely the type of discussion that
should be entrusted to the committee.
Similarly, section (22) charges the committee with the responsibility of
maintaining and keeping minutes of the proceedings. The evidence shows that
the employer has retained full control of who it assigns to take these minutes.
If the employer is not seeking to alter the balance of power on the JHSC and
sincerely values Ms. Henry’s knowledge of the subject matter they have a
perfectly legitimate procedure to follow....appoint Ms. Henry as an employer
representative.
We heard in examination in chief from Mr. Conly who testified that “the members
see her as an extra management person .........she offers advice to management
but not to workers.”
If a resource person is needed, it should be as invited by the committee.
Section (34) subsections a) b) and c) place the responsibility of determinations
around these issues in the hands of the committee.
(34) Entitlement to time from work.-A member of the committee is entitled to,
a) one hour or such longer period of time as the committee determines is
necess ary to prepare for the committee meeting;
b) such time as is necessary to attend meetings of the committee
c) Such time as is necessary to carry out the members duties under subsections
(26) (27) and (31).
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The Guide to Workplace Health and Safety recommends that the committee
implement Terms of Reference or guidelines to the process. It is the Union’s
position that the two worker members defer to the normal internal workings of
the Union, as would the two employer member and therefore the parties
negotiate the policy.
In closing, although one can appreciate that from an organizations structural
point of view it makes sense to assign “where” the committee “fits” within the
organization. The concern of the Union is that the executive council via its policy
and personnel positioning defeats the fundamental underpinning of a joint
committee.
All of which is respectfully submitted, Sherril Murray, Union nominee.
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