HomeMy WebLinkAbout1992-0267.Union.93-09-09.pdf ., CROWN EMPL 0 YEES DE L 'ON TA RIO
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180. RUE DUNDAS OUEST, B~tREAU.2100, TORONTO (ONTARIO), M5G I~8 FACSIIVIILE/7-~LECOFYE : [4;,5) 326~ t396
26.7/92
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU ('Union Grievance')
Grlevor
- and -
The Crown in Right of ~ntario
~(Ministry of Health/Thames Valley Ambulance)
Employer
BEFORE= S. Stewart Vice-Chairperson ..
P. Klym Member
D. Clark Member -
FOR THE N. Coleman
UNION Counsel -'
Gowling, Strathy & Henderson
Barristers & SolicitOrs
FOR THE P. Whalen
EMPLOYER Barrister & Solicitor
HEARING November 24, 1992
May 5, 26, 1993
DEC~SION ...
'The'.grie~ance before us is a Union grieVance., dated
February 24, 1992._ The grievance-arises 'from the employer's
cesSation of assigning Staff to be on standby to carry.out
critical care transfersl' ~"There was a formal communication to all
staff from Mr~ Ro Duffield~ operator 'of Thames Valley Ambulance
Limited., dated February 25, 1992, ~he text of which states as
follows:
The Critical Care Transport Vehicle has been
discontinued by theMinistry of Health and it
Will not be replaced.. Therefore there will be
no need for staff to be-on standby effeCtive
0001 Hrs. March 1, 1992 at which time standby
will be cancelled.
Ali out of town Calls will be done by the-use
of the most appropriate crew. If a conflict
. . arises, the Superintendent will make the final
~decision taking into consideration the following
and not limited to: overtime costs, and individual
situations.
Mr.-Duffield testified that staff were.aware oflthe cessation of
this practice prior ~to February 2'5, 1992,.~which wOUld explain the m
fact that the grievanCe.p~eCeded that date.
It is theposition of the Union that Critical care
transfers continue'to take place and that the Employer' continues
to have an obligation t0 assign employees to standby in
accordanCe with the terms of a Letter of Understanding da~ed
March 21, 1989.
The Letter of Understanding, by its terms, suspended
and replaced Article 43 of the. CollectiveAgreement.' Article 43
provided as followS:
ARTICLE 43 - STANDBY AND CALL BACK FOR C.C~T.U.
43.01 It is understood that this Article pertains
solely to'the. C.C.T.U. Vehicle or other
such vehicle as assigned in its place.
This Article deals with operating,
cleaning and stOcking this vehicle only
and the parties agree that standby Will
be Used.for no other purpose.
43~02 Standby schedUling will be on a voluntary
basis onlyo
43.03 EmplOyees who have volunteered to be on
scheduled standby and are called in to
work shall be paid at a rate.of'one and
one,half (1-1/2) times their regular
hourly rate for actual time .wOrked or for
four (4) hours, whichever is~greater.
'43.04 Standby rate-Will 'be $2.'00 per hour for
each hour of the standby shift°
43.-05 The standbY/call back crew shall do the
C.C.T.U. call. They shall not be used to
"backfill" in the city and regular on-duty
staff shall not be used to do ~C.C.T.U. runs.
Random call-back will be used for second
and subsequent C.C.~T.U. runs.
43°06 pagers will be'used to alert crews'on
standby. The Company is'responsible to
issue and retrieve them.
43.07 Crews must respond to the office from
standby in full uniform and have the
'vehicle at the appropriate hospitali~within
~thirty (30) minutes of being paged°
43'08 The existing practice of the Company
concerning the staffing of this vehicle
Shall continue~
43.09 The standby/call back crew is responsible
.for the cleaning and restocking of the
vehicle.
43.10 The Company shall compile, in order of
senioritY, and post a list~of the
employees who have indicated their
..willingness to be involved and meet
the above criteria. When hours'become
available, the Company will attempt to
allocate them on a rotating ~basis. ,
The text of the March 21, 1989 Letter of understanding pro~ides
as follows:
In consideration~of pending changes.in the
operation of the C.C.T.U. (811), the parties
agree to suspend Article 43 and to replace~it
with the follOwing .amendment which shall form
part of the Collective Agreement:'-
(a) The.Company shall post the position(s) of
C.C.T.U. attendant'and accept applications
from all full-time staff in accordance
with Article 4 of the collective agreement;
(b) Regular complement shall consist of eight
(8) employees. However,~appropriate
replacement staff may'be trained and
sCheduled "as required";
(c) Stations for the location ~of the vehicle
and crew may be altered~from.time to time.
However, once established, the Union will
be. consulted and a meeting will.be held
with the Labour/Management Committee
for review and recommendations;
(d) -A standby system will be implemented'whereby
crews may be summoned to duty a maximum of
two (2) hours prior to the commencement
of their shift. This shall be 'on a
cOntinUing basis and be accepted as a
regular part of the job description;
(e)~ Standby rate will be two (2) dollars per
hour for each' hour of the'standby period;
(f) When called, Standby crews must respond
to the C.~.T.U. vehicl~ in full uniform
and have the vehicle at the appropriate.
hospital within thirty (30) minutes;
(g) Pagers will be used to alert crews on
.standby.. Pick up and retrieval of pagers
will be'arranged by mutual agreement of~
the parties; - '~
.(h) The Company shall'~rovide appropriate
policy and procedures for the operation ~
of the C.C.T.U. vehicle at the earliest ~
possible time and such policy will be
presented to the Labour/Management
Committee for review and recommendations.
The parties subsequently agreed to increase the standby rate to
$2.25 per hour.-
The Union seeks an order directing the Employer to
comply with the terms of the Letter of Understanding. In
particular, that there be eight CCTU designated positions and
that work assignments be made in accordance with the provisions
of the Letter of Understanding, including standby.
Both parties adduced evidence with respect to the
history of critical care transport as it was carried out at
Thames Valley Ambulance Limited. Mrl R. Duffield, who as
previously noted is the operator of' the ambulance service,
commenced his. involvement with the company on October 19, 1970
when he was hired as a Driver attendant/Dispatcher. He continued
in that position until 1976 at which time he and Mr. R. MacDonald
purchased the operation and operated it as partners. This
arrangement continued until July, 1988, at which time Mr. -
Duffield became the sole operator and owner. The BOard also
heard evidence about the history 0f critical care' transfers from
Mr. Co Ferris. Mr. Ferris is currently President of OPSEU Local
147. He has been employed by Thames Valley Ambulance Limited as
a Driver/Attendant since 1986.
There was no ~real dispute in their evidence about the~
history of critical care transport carried out-by Thames Valle~ .
Ambulance. Mr. Duffield testified that a Program relating to
critical care transport was initiated in the early 1980s'. TWO
London hospitals established a team from their hospitals which
would go out with an ambulance to areas to retrieve patients and
bring them back to London. This service was provided in
situations where'outlying hospitals did not have the.expertise ~o
treat patients. The ambulance would take the teamto the
outlying hospitals and return with the Patient~ Other hospitals
became involved in establishing teams and the program expanded%
The cachement area for this service was much larger than for the
regular ambUlance service whichserviced the local LOndon area.
The cachement area for critical care transports extended from
Windsor to the Toronto border and from Owen Sound to Lake Erie.
There was some Overlap With service provided from Toronto.
During the initial'period, the staffing of critical care
transport, calls was shared between three members of management,
Mr. DUffield, Mr. MacDonald and Mrs. MacDonald.--Calls were
dispatched by the Ministry of Health dispatcher and the service
was provided for by virtue of someone being on call twenty-four
hours a day, seven days a week'. A 'highrise vehicle, which Was a
regular~ambulance except for its highrise feature, was used for
critical care transports. If this vehicle was unavailable,
another ambUlance from the fleet would be used. Minimal
additional, equipment was carried in.that ambulance. ',l..ike all
other'ambulance'programs,-this program .was authorized and funded
by the Ministry' of-Health.
Subsequently, in or about 1982, the Ministry of Health
provided Thames Valley Ambulance~Limi%ed with a special vehicle
to be used for critical care ~transports. It, was a Specially
designed box placed on a dual wheel truck Chassis rather than a
van. The vehicle.was'outfitted differently'than a regular.
ambulance, containing speCialized equipment and supplies° Mr..
Ferris'put the number at 50-60 While Mr. Duffield put the number
at between 60-100, noting that there-would be more than one piece
of each type of equipment on supply. The ambulance service was
responsible for stocking and replenishing equipment and supplies.
Mr. Duffield testified that it beCame necessary for
persons-other than the three management personnet~to carry out
-Critical care tranSPorts. He testified that Article 43 was
negotiated in order-to provide for members of the bargaining unit
to perform this duty and deal with their, remuneration.. Because
of the requirement of travelling to and from outlyihg hospitals,
critical care transports could involve a number of hours° This
feature of the assignment made it unattractive for some
employees. The matter of assignment of these trips was therefore
addressed by the parties in negotiations.
Mr. Duffield referred to a letter dated July 15, 1988
that was received from Dr. D.G'. Zerebecki, .Regional~Manager of
the Ambulance Serv%ces Branch of the'Ministry of Health. Tha~
-letter states and advised that some additional funding had bee~
allocated for C.C.T.Uo staffing and goes on to. state as follows:
The additional funds together with the.present
C,C.T.U. standby and callback wages will be
sufficient to provide an additional on-site
crew 24 hours per dayo~ This additional
resource will be used to provide C.C.T.U.
coverage whenever required, and additional
ambulance resources, for the LondOn service
when not required for C.C.T.U. use~ ~ .
This means all standby and C.C.T.U. callback
will be'eliminated. When a call for the
C.C.T.U. is received by dispatch, a duty
crew will be dispatched t° the Bathurst
base and. pick up the C.C.T.U., and proCeed
to the hospital to pick up the team within
30 minutes, as previously agreed. I am
· sure you will.agree .with the increased
benefit to the system of more ambulance
coverage 'available to' the London area,
- as well as 24 hour on site C.C.T.U.
coverage.
Dispatch will endeavour to utilize the most
appropriate crew for a C.C.T.U. run, keeping
in mind the.normal run is approximately 6
hours' in length so' as to reduce the chances
of shift overrun.
Following the receipt of this memorandum, Station 3 was
established. Staff were'assigned~to city calls and responded to
critical care~transport calls as required. A specially
designated vehicle was used to respond to critical care transport
calls. This vehicle was sometimes used for regular calls, but
only when no other vehicle was available or there was a life
threatening situation. By memorandum dated October 24, 1988, to
the staff of Thames Valley Ambulance, Mr. K. Boyle', Program'Co-
ordinato~ for critical care transport With the.M%nistrY'of
Health, noted that while the majority of critical care transpor~ts
had been carried out by-members ~of management in the past, ..o
the Ministryhas ordered the management of TVA to staff the CCTU ·
as an ambulance, with on-duty personnel". Mr. Boyle~ further ·
advised that the Ministry of Health was of the view that the
operation of equipment in the unit should not be the
responsibility of 'the ambulance personnel. Mr. Ferris.testified
that the matter of assignment to critical care transfers
arrangement was of considerable conCern to. the Union. He stated
that'since negotiations Were taking place at th'at-time it· was
determined that the Union's concerns would be pursued through
that route rather than through the grievance procedure. These
negotiations Ultimately resulted in the March 21, 1989 Letter of
Understanding, reproducedsupra. Critical care transfers were
then carried out by staff in accordance with the prOvisions ~f
the Letter of-~Understanding. If a critical care transfer Call
was received within two hours of the ·end of a~twelve'hour shift,
the crew that Was on standby would receive the critical care
transfer. Two ambulance attendants travelled with the specially
equipped vehicle to the London' hospital to pick up a medical
team. The vehicle travelled to the outlying-~hospital~ picked up
the patient, and then returned to the London hospital. The role
of the ambulance attendant in relation to the care of the Patient
was determihed by the condition of the patient and the direction
of the medical team. Some training for the ambulance attendants
who had successfully applied for the critical care transport
positions was provided. TheSe employees were responsible for,
ensuring that the necessary supplies and equipment were in the~_
· vehicle and replenishing them as necessary. Mr. Ferris testified
that the designated CCTU vehicle,.1300, was not available between
20 to 60 % of the time. When 1300 was not available, ~the crew
would.transfer some of the equipment used in that vehicle to a
regular ambulance and use the regular ambulance for the transfer.
Certain equipment, such as a ventilator, Could not be transferred
because the regular ambUlance did not have the necessary mounts.
In o~ abou~ 1991', the specially designed C.C.T.U.
vehicle reached the end of its serviceable career. At that
point, the Ministry of Health decided that there would~be no more
specialized vehicles dedicated to critical care transfers.. -The
vehicles that had been used in other centres were discontinued,
with the Thames'Valley Ambulance Limited specialized vehicle
being the last to be retired. By letter dated December 19, 1991
Mro Duffield noted that a decision from the Ministry of ~Health as
to whether Vehicle 1300 would be repaired or replaced, was pending
and requested a'double stretcher vehicle to be added to the fleet
to be used to deal with critical care tranSports as well as
ordinary runs. In a letter dated January 10, 1992, Mr. D.
ArboUr of the Ministry of Health advised that the C.C.T.Uo would
not be replaced but that the Ministry was willing to consider a
10
double stretcher unit that would form part of the regular fleet
and also lservice critical care transfer calls.
A double stretcher unit, 1270~ which is larger than
regular ambulances, was issued by-the Ministry~of Health in early
1992o This vehicle was stocked like a regular ambulance vehicleo
However, its larger size allowed space for the additional
equipment required on a critical care transfer as Well as
additional space for the personnel who staff the ambulance on
critical care transfers. .EleCtronic-~eqUipment was~transferred on
to the vehicle from Station 3. Other supplies 'are brought on to
the vehicle by Hospital personnel. The vehicle is.equipped with
brackets for a ventilator and with a cellular phone, tt is
similar in design to the vehicle used for critical'care
transports betWeen~1981 and 1986, however it is a little larger. ·
A memorandum dated February 14, 1992 from Mrl-Pi
~Bergsma of the'Ministry of Health relating to-the new vehicle
which was posted for the attention of the emploYees includes the
following statement:
In case of team transfers, this is the designated .
Vehicle. Send the most appropriate crew on the
transfer as to not incur overtime. I'f 1270 is.not
available, obviously any other unit would sUffice.
By memorandum dated February 18, 1992, Mr. Bergsma indicated that
he was amending his previous memo by adding the following:
Station 3 is still on paid standby for this
run. If a call is received during the time
periods that~they are on call, page them.
.Station 3 does not.need to be used during ~
other time periods, especially if shif~ overrun
is: imminent.
i..e. If a call is received-at 12:30 hours, it
may be appropriate to send the noon crew.
Mr. Duffield subsequently issued the memorandum that is
reproduced at page 1 0f this decision, advising employees that
there would no longer be standby in connection with critical care
transfers. Mr. Duffield referred the Board to a letter dated
November 7, 1991 that he received from Mr.'G. Brand, Director,
Emergency Health Services Branch, whiCh advised that funding for
the 1991/92 budget should not be exceeded and that there would
not be an increase in funding the following year. Mr. Duffieid
testified that he was advised by the Ministry of Health-that no
futher ~funding fOr standby in connection' with critical care
transfers would be given. Mr. Duffield stated that the Employer
Would not be reimbursed for any such expenditures.
Mro Ferris testified that subsequent to March 1,- 1992·,
the Hospital supplied the electronic equipment for the transfer,
in addition to the supplies. He stated, however, that the duties
of the ambulance attendants in connection with the transfers did'
not change.. The standby system .and the system of-assignment of
critical care transfers to those persons who had successfully.
aPplied~for the positions were discontinued. At this time there
were approximately 10 critical care t'ransfers a month, a decrease
from a one'time average of 30 to 40 per mo~th. Mr. Duffield
attributed this reduction ~to an increased use of air ambulanCes
and an increased tendency of OutlYing hospitals use their local
ambulance service to transport .patients to larger' centres'beco.~use
of the time factor.
As the Letter of Understanding provides that Article 43
of the Collective Agreement is suspended and that it replaces
Article 43 and forms part of the Collective Agreement, it is th~
terms of the Letter ~of Understanding that govern. At the outset
of these proceedings it was the position of the Employer that'the
terms of the Letter of Understanding were n°t applicable, however
this~position was not pursUed in argument. The essence of the
dispute is whether the Letter of Understanding is properly
characterized as a substantive right.to perform critical care
transport work; as contended by the Union, or whether, as the
Employer contends, it is a premium provision, providing for
payment if critical'care transfers are assigned in the particular
manner contempiated~by~the Letter. of Understanding. It was'Mr.
Whalen's submission that in the absence of the operation of a
Vehicle that has been specifically designated as a C.C.T.U. by
the Ministry of Health, the provisions of the Letter of
Understandinghave no application. Mr. Coleman submitted that
the provisions have application-to critical care transfers,
which, he argued, are still being carried out. It was Mr.
Whalen's further submission that in the context of other
provisions, of the Collective Agreement the Board should conclude
that the terms of the Letter of Understanding cannot have
application.. Mr. Whalen referred the Board to the.preamble of
the Collective Agre.ement which' states ~in part that ... it is t~e
purpose of both par.t'ies to this Agreement:
(8) to encourage efficiency ,in operations and
work co'operatively to meet legislative
requirements including The Ambulance Act
-and Regulations pursuant thereto;
Mr. Whalen also made reference to the management rights clause of
the Collective Agreement whiCh, in Article'6:02(i), refers, to:
(i) the'right to~operate the ambulance service,'
so'as to provide adequate service in a manner
consistent.with the obligations of~theCompany
to the Ministry of Health and the general
public.
Mr. Whalen referred to Regulation 14, s.63(c) under the Ambulance
Act whiCh provides as follows:
63. Every operator of"an ambul~ance service shall
ensure that,
(c) all emploYees.or other persons acting
under hiS direction in his ambulance
~ . . service complY, with all reasonable
-directions and instructions respecting
the dispatching of ambulances and the
ambulance communication system, issued
by a dispatcher in the area where the
ambUlance is located at 'any given time°
R.R.O. 1980, Reg. 14, s. 63; ~0. Reg.
600/89, s' 21.
Mr~ Whalen also made reference.to s. 58 (c) which obligates an
operator to take all reasonable, steps to ensure that'there are
attendants on duty when the service is to be available.
Turning first to the terms of the Letter of
Understanding, it is oUr view that it contains clear, mandatory
language with respect to the staffing of critical-care transfers.
We note, parentheticallY, that while the.language in subsection
43.01 of the Collective Agreement, the language which was
replaced by the terms of the Letter of Understanding, contains a
specific stipulation that: ..."this Article pertains solely to.
the C.C.~T.U. vehicle", there is no such reference contained in
the provisions ~hat replaced Article 43.01' Moreover, Article
43.01 goes on to indicate that it applies to "... other such
vehicle assigned in its place". Accordingly, even where there
was specific language in the preceding provision relating` to the
vehicle, the provision was'not restricted to a vehicle that was
specifically designated by the Ministry of Health as a C.CoT.~Uo
vehicle.
subparagraph~ (d) of the Letter of Understanding states
that: "A standby system will [emphasis added] be imPlemented, o.'"
~and subparagraph (a) states that: "The Company shall [emPhasis...
added] post the position(s) of C.C.T.U. attendant..." In our
view, the terms of the Letter of Understanding clearly oblige the
Employer to assign critical care transfers to bargaining u~it
employees who have applied.for the C.C.T.U. attendant position
and to employ the standby/overtime system referred to in the
Letter of Understanding. Nothwithstanding that, as Mr. Whalen
emphasized, the Collective~Agreement specifically provides that
there is noguarantee of hours, there is_only a single
classificatiOn of driver/attendant and there is no job
description contained in the Collective Agreement, 'it is our~-~iew
that the provisions of the Letter of' UnderStanding are clear ih
terms of imposing specific 'obligations ~on the EmPloyer with
respect to the assignment and compensation of employees in
conneCtion with critiCal care transfers~
We are unable to accept Mro Whalen's submission that
Article, 6o02(i) or subsection (8) of the preamble to' the
Collective Agreement affects the foregoing interpretation of the
terms of the Letter of'Understanding in the-circumstances before
-us. we are not persuaded that compliance by the Employer with
the terms of the Letter of Understanding would put~.the Employer
in breach of its obligations-to the Ministry of Health or of
rRegUIation-14 of the Ambulance Act. With respect to the latter
matter, the obligation to .have staff available and to comply With
the directions-of a dispatcher is not 'inconsistent with a
specific agreement as tO'how particular duties will be assigned
and, compensated.~
Critical care transfers are no longer carried out in a
vehicle that has been specifically designated by the Ministry of
Health as a criticat care transfer vehicle.under a particular
program. HoWever, a vehicle other than the vehicle that was
specifically deSignated as~the critical care vehicle under the
16
program has been used in the~past. The Ministry of Health has
deScribed the double stretcher vehicle as the "designated.
vehfcle" to be used when transfers from outlying areas are ~
assigned. It is similar to a vehicle that was a designated
vehicle in the past. Aside from the change of the duties of the
driver/attendants in terms of stocking the vehicle, there'was no
real challenge to Mr..Ferris' evidence that his duties and
responsiblities in connection'with such trips remain unchanged.
The cachement area remains the same, the lengthy, hours typical of
such an assignment-remain the same and the involVement of the
ambulance~attendants with the medical team remains the same. In
our view, the essential features of critical care transfers still -
exist, such that the provisions of the Letter of Understanding
remain operative~ The numbers of critical care transfers have
decreased, however the assignments continue to be made and the
essential nature of~the assignment remains the same. The
specific provisions that'the parties have agreed to relating to
how critical'care transfers are to be assigned and compensated
must be complied with as long as such assignments are made.
While.we sympathize with the Employer's circumstances~with
respect to funding., such a matter does not obviate the Employer's
obligations under a collectiv~ agreement.
'in summary, it is our conclusion that the Employer
has' breached the terms of the Letter of Understanding relating to
~the assignment of critical care transfers. Accordingly, the
grievance is allowed. The ~Employer is directed to comply with
the terms of the Letter'of Understanding. we'remain seized to
deal with any outstanding issues in connection ~ith this matter
which the parties-are unable to resolve.
Dated at Toronto, this 9thday of September , 1993.
S . L~lCe-ChairpersOn
D..Clark - Member