HomeMy WebLinkAboutUnion 15-09-15In the Matter of an Arbitration
Between:
Ross Memorial Hospital
(The "Employer")
1571T a
Ontario Public Service Employees Union
on behalf of its Local 309
(The "Union")
Re: Article 17.03 - Call Back Grievance
(Grievance # 2013-0309-0003)
Arbitrator - Brian Sheehan
Appearances:
For The Employer: Robert Atkinson -Counsel
For The Union: Tim Mulhall -Regional Grievance Officer
Hearing held in Lindsay on July 30, 2015
This Award relates to a policy grievance filed by the Union asserting that the
Employer violated Article 17.03 (Call Back) of the collective agreement in terms of the
application of that provision to regular part-time employees.
The Nature of the Dispute
The Union represents the full-time and part-time paramedical employees of the
Employer. The parties are part of a central bargaining process such that the collective
agreement is comprised of a "Central Agreement" and a "Local Issues Appendix".
The dispute between the parties relates to the appropriate interpretation of Article
17.03 of the collective agreement, which is a central agreement provision. Article 17.03
reads as follows:
NOTE: Article 17.03 is applicable to full-time and regular part-time
employees only.
17.03 Call Back
An employee who is called back to work after leaving the Hospital
premises and outside of his regular scheduled hours, shall be paid a
minimum of no less than four (4) hours' pay at time and one-half (1 Y2) his
regular straight time hourly rate for work performed on each call-in.
In the event that the four (4) hour periods for successive call -ins overlap,
however, the employee will not be entitled to more than time and one-half
(1 Y2) his regular straight time hourly rate in respect to the period(s) of
overlap.
In the event that such four (4) hour period overlaps and extends into his
regular shift he will receive the four (4) hour guarantee payment at time
and one half (1 Y2) 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.
NOTE: Applicable to part-time employees only.
For purposes of clarification, Article 17.03 does not apply to prescheduled
hours of work. Article 17.03 does not apply where the employee elects to
work additional unscheduled hours made available by the Hospital.
1
To fully appreciate the respective positions of the parties mE garding the
interpretation of Article 17.03, it is necessary to consider the following additional
provisions of the collective agreement
ARTICLE 16 — HOURS OF WORK & OVERTIME
16.01 Work Week and Work Da
(a) (Applicable to full-time employees only)
The normal or standard work week shall be an average of
thirty-seven and one-half (37 '/) hours, with a normal or
standard work day of seven and one-half (7 Y2) hours
except in those Hospitals where agreements already
provide a standard or normal work week of less than
thirty-seven and one-half (37 'h) hours per week and
seven and one-half (7 1/Z) hours per day. (Those Hospitals
with the lesser required hours shall reflect in the salary
rates a pro -rata lesser amount compared with salaries for
other Hospitals based on the ratio that the standard or
normal hours of work at the Hospital concerned are to
thirty-seven and one-half (37 Y2) hours and shall
appropriately reflect such hours in this Article).
The length of time over which the hours of work per week
are to be averaged shall be determined locally and shall
be set out in the Local Provisions Appendix.
(b) (Applicable to part-time employees only)
The normal or standard work day shall be seven and one-
half (7 '/z) hours per day and the normal or standard full-
time work week shall be an average of thirty-seven and
one-half (37 '/) hours per week except in those hospitals
where agreements already provide a normal or standard
work day of less than seven and one-half (7%) hours and
a normal or standard full-time work week of less than
thirty-seven and one-half (37 %z) hours. (Those Hospitals
with the lesser required hours shall reflect in the salary
rates a pro -rata lesser amount comparted with salaries for
other Hospitals based on the ratio that the standard or
normal hours work at the Hospital concerned are to thirty -
2
seven and one-half (37 '/) hours and shall appropriately
reflect such hours in this article).
Part-time employees shall be entitled to overtime pay at
the rate of time and one-half their regular straight time
hourly rate for all hours worked in excess of the normal or
standard work day or in excess of the normal or standard
full-time work week.
The length of time over which the hours of work per week
are to be averaged shall be determined locally and shall
be set out in the Local Provisions Appendix.
(c) Where the Hospital and the Union agree, subject to the
approval of the Ministry of Labour, other arrangements
regarding hours of work may be entered into between
parties on a local level with respect to tours beyond the
normal or standard work day in accordance with the
provisions set out in Article 29.01 of the collective
agreement.
ARTICLE 29 — MODEL SCHEDULING AGREEMENTS and PRE -PAID LEAVE
29.01 Extended Tours
Where the Hospital and the Union agree, subject to the approval
of the Ministry of Labour, other arrangements regarding hours of
work may be entered into between the parties on a local level
with respect to tours beyond the normal or standard work day.
ARTICLE F- HOURS OF WORK & OVERTIME
F-4 Regular Work „Schedule
The Hospital will make every reasonable effort to arrange
schedules as follows:
An employee will not be required to work more than seven (7)
consecutive days. However, for employees working night
shifts they will not be required to work more than four (4)
consecutive shifts, unless otherwise agreed to by established
scheduling practices, or under F-4 (10).
2. Shift schedules shall be posted twenty-eight (28) calendar
days in advance of the first week of the four (4) week
schedule.
N
3. Requests for specific days off prior to the posting of a
schedule must be made no later than (7) calendar days prior
to the schedule being posted.
4. Part Time: There will be at least twenty --four (24) hours'
notice of any change in the posted schedule, otherwise an
employee shall be entitled to one and one-half (1 '/) times
her regular rate for the first shift of the changed schedule.
Pursuant to Article F, schedules for employees are to be posted 28 calendar
days in advance of the first week of the four-week schedule. The Employer in
accordance with paragraph 4 of Article F is entitled, however, to change the schedule of
part-time employees with 24 hours' notice of any change.
In accordance with Article 16.01 of the collective agreement, the normal standard
work day for both full-time and part-time employees is 7.5 hours per day. Pursuant to
Article 29.01, however, the parties could agree to extended tours providing for a
standard work day of 11.25 hours; which the parties have agreed to with respect to the
Respiratory Therapist classification
The crux of the dispute between the parties involves a situation where a regular
part -tie employee is offered and then works unscheduled hours (which do not
represent a full shift of work) over and above the employee's scheduled shifts. The
Union's position is, in such circumstances, the employee is entitled to be paid the
premium rate of pay at time and one-half (1 '/) his/her regular straight time hourly rate,
pursuant to Article 17.03, with respect to those additional hours worked. The Employer's
position is that since the part-time employee elected to work the additional hours, Article
17.03 is not applicable.
The Employer, in the Union's view, in and around September 2013 altered its
practice regarding the application of Article 17.03 to regular part-time employees. In this
regard, the Employer did not dispute that there may have been incidents where part-
time Respiratory Therapists were in fact paid time and one-half with respect to agreeing
4
to work additional unscheduled hours made available by the Hospital. The Employer's
position was that the few incidents referenced by the Union were an anomaly and that
such incidents were not consistent with its view pertaining to the wording of Article
17.03 of the collective agreement. The position of the Employer was crystallized in an
April 9, 2014, Notice of Practice clarification from Sandra Runk to Pam Sleep, President
of the Union. That Notice read as follows:
The Hospital understands, from limited evidence put forth by the
Union, that there may have been incidents in the past where a part
time Respiratory technician, offered additional hours beyond the
posted schedule, was paid premium pay under article 17.03 when
asked to perform these hours during the late evening/night time
hours.
It is our understanding that this practice is in error and is not required
under the central collective agreement.
The Hospital's understanding of the note in article 17.03, central
agreement, is that if the part-time employee was offered these hours
and voluntarily elects to work them, that this is not call back under
17.03 and should be paid at regular rate unless meeting the
definition of overtime under article 10.01 {b} or 16.03.
On a go forward basis, the Hospital will be interpreting and applying
Article 17.03 as noted above.
The Submissions of the Parties
The Union's interpretation of Article 17.03 is directly connected to the hours of
work provisions of the collective agreement. Specifically, it was submitted that pursuant
to Article 16.01, employees could only be scheduled to work shifts of either 7.5 hours, or
in the case of Respiratory Therapists —11.25 hours per day. Those two particular
configurations of shifts were the only permissible regular hours of work that employees
could be scheduled.
It was submitted against that background, the reference in Article 17.03 to an
employee being called to work "outside his regular scheduled hours" by implication
5
meant, if the Employer sought to call in a part-time employee to work an unscheduled
shift that was less than 7.5 hours, or in the case of a Respiratory Therapist less than
11.25 hours, that employee was working "outside his regular scheduled hours" thereby
triggering the application of Article 17.03; such that, the Employer was required to pay
the employee the premium rate of time and one half.
The Union placed reliance on the decision in Rouge Valley Health System and
Ontario Public Service Employees Union (April 29, 2002) unreported (Devlin). In that
case, Arbitrator Delvin ruled that an Employer's attempt to unilaterally schedule part-
time employees to "short tours" (a shift of less than 7.5 hours) violated the collective
agreement --the "central agreement" between the Participating Hospitals and OPSEU.
In particular it was determined:
In the result, although no issue is raised regarding the bona fides of the
Employers decision to schedule short tours in the Pharmacy Histology And
Shoniker Clinic, for the reasons set out, the Board finds that the language of
Article 18.01(b) favors the interpretation advanced by the Union and does not
permit the unilaterally scheduling of short tours for part-time employees on a
regular basis.
The Union noted that the decision in Rouge Valley Health System, supra, was
followed by Arbitrator Kaplan in t-akerid a Health Corporation and Ontario Public
Service Employees Union (October 12, 2004) unreported (Kaplan).
The Union accepted that if the scenario involves a part-time employee on an
unscheduled basis backfilling an absent employee for a full shift of work, or working an
"over -complement" full shift of work, then Article 17.03 is not applicable. Specifically, it
was submitted that Article 17.03 was designed to apply to the scenario of a part-time
employee, in a case of emergent need, working unscheduled hours of work that do not
constitute a full shift of work.
In support of its position, the Union relied on the following additional authorities:
Rouge Valley Health S stem and Ontario Public Service Employees Union (June 24,
2002) unreported (Devlin); Participating Hospitals and Ontario Public Service
Employees Union (June 28, 2005) unreported (Beck); Participating Hospitals and
Ontario Public Service Employees Union (May 16, 2007) unreported (Albertyn);
Participating_ Hospitals and_Ontario_Public Service Employees Union(September 18,
2014) unreported (Herman).
For the Employer, the Union's argument constituted an attempt to conflate an
issue regarding part-time employees working unscheduled hours of work into an
entitlement to premium pay pursuant to Article 17.03 of the collective agreement.
Mr. Atkinson, on behalf of the Employer, asserted that Article 17.03 is a fairly
standard "call back" provision. Specifically, it provides for premium pay if employees are
called back into work outside their normal hours of work; and furthermore, that the
provision provides for payment of at least four hours at the rate of time and one half
irrespective of the hours of work actually worked by the employee„
For the Employer, the relevant language of the collective agreement is clear on
its face. Related to this point, it was asserted that the Union's argument fails to
consider, at all, the significance of the Note applicable to part-time employees set out at
the conclusion of Article 17.03. It was asserted that the parties expressly agreed,
through that wording, that if a part-time employee elected to work hours outside his/her
prescheduled hours then Article 17.03 does not apply.
It was suggested from a purposive point of view, since a part-time employee
may be scheduled to work only one or two shifts per week, the parties' stipulation that a
part-time employee who elects to pick up additional hours of work is not entitled to
premium pay, pursuant to Article 17.03, made perfect sense. In straightforward terms, a
part-time employee who elects to work additional unscheduled hours that become
available is not being called back into work.
Mr. Atkinson asserted that Article 17.03 would only apply to part-time employees
in those rare circumstances wherein a part-time employee is required to work additional
unscheduled hours of work. It was noted that it is the practice of the Employer if there is
a need for additional hours to be worked they will first call available regular part-time
employees, then casual employees and finally full-time employees. If no employee
accepts the offer to work the available hours, then the Employer, in cases of emergent
need, may force regular part-time employees to work the hours in question. In those
acknowledged rare instances, Article 17.03 would apply to the part-time employee. In
support of its submissions, the Employer relied on the following authority, the Northeast
Mental Health Centre and Ontario Public Service Employees Union (October 25, 2004)
unreported (Whitaker).
Mr. Mulhall, on behalf of the Union, in response to the Employer's argument
noted that the wording of Article 17.03 refers to an employee being "called" to work; it
does not reference the employee being "ordered" to work. Moreover, it was suggested
that the Employer's interpretation would effectively render the provision irrelevant for
part-time employees, which was inconsistent with the stipulation at the outset of Article
17.03 that the provision applied to part-time employees as well as full-time employees.
Decision
Notwithstanding the able argument of Mr. Mulhall, the Union's interpretation of
Article 17.03 as it applies to regular part-time employees is not accepted.
It is a trite, but important observation that an arbitrator's task is to interpret and
apply the language set out in the collective agreement. That is, the parties' intent is to
be derived from the actual and specific wording utilized by the parties. In the case at
hand, the parties through the second sentence of the "Note" at the conclusion of Article
17.03 expressly and, in my view, unequivocally provided that the provision is not
applicable to the circumstances of a part-time employee electing to work additional
unscheduled hours of work made available by the Hospital. To accept the Union's
interpretation that Article 17.03 would necessarily apply whenever, a part-time employee
is offered an opportunity to work additional unscheduled hours of work that do not
comprise a full shift of work is inconsistent with the general notion of a "call back" and
would arguably render the second sentence of the "Note" at the conclusion of Article
17.03 superfluous.
8
I would add that it would not be unusual under a collective agreement in the
hospital sector that part-time employees accepting additional unscheduled hours of
work would not be treated as a "call back" or attract premium pay other than if the hours
worked triggered an entitlement to overtime pay based on hours worked being in excess
of the agreed -to normal or standard workday or in excess of the normal or standard full-
time work week.
No issue is taken with the assertion of the Union that the collective agreement
only contemplates standard daily hours of work to be either 7.5 hours or in the case of
Respiratory Therapists — 11.25 hours. The case at hand, however, is not an "hours of
work" case. That is, this is not a scenario, as existed in both the Rou a Valley Health
System, supra, and Lakerid a Health Corporation, supra, where the Employer has
sought to introduce a different "norm" in terms of the standard hours of work for part-
time employees. The standard hours of work for the part-time employees, in the case at
hand, have not been altered; rather, the Employer has, at times, offered part-time
employees' additional unscheduled hours of work which they have elected to work.
In conclusion, therefore, it is my determination that the Union's position that
Article 17.03 applies in cases where a part-time employee elects to work additional
unscheduled hours of work that do not comprise a full shift of work, is not upheld.
Accordingly the grievance is, hereby, dismissed.
This Award is issued in Mississauga this '15th day of September 2015.
Brian Sheehan
01