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HomeMy WebLinkAboutPeer 16-11-25BETWEEN: IN THE .MATTER OF AN ARBITRATION THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 472 - and - COMMUNITY LIVING RENFREW COUNTY SOUTH (The "Union") (The "Employer" or "CLRCS") RE: GRIEVANCE OF MS. ALANA PEER CONCERNING THE WORKING OF EXTRA HOURS UNDER ARTICLE 19.02 BEFORE; DATE OF HEARING AT: ON BEHALF OF THE UNION: ON BEHALF OF THE EMPLOYER_. SYDNEY BAXTER OCTOBER 3, 2016 OTTAWA, ONTARIO SOLE ARBITRATOR MS- AMANDA. MONTAG_UE- REINHOLDT- MR-- PAT.RICK_ GANLE-Y -1 - The parties to this dispute are The Ontario Public Service Employees Union, Local 472 (the "Union") and Community Living Renfrew County South (the "Employer" or "CLRCS"). On August 17, 2016 the Union filed the following grievance on behalf of Ms. Alana Peer (the "Grievor"): I grieve article 19.02 and any other applicable articles or legislation. I had to stay till 4:30pm (which is 30 mins late) for an ISP meeting with a person we support and their family on August 15, 2016 and the employer is forcing me to take time off later in the week rather then pay me the time worked To be paid out for all hours worked. The Employer's reply to the grievance states in part: Community Living Renfrew County South (CLRCS) complied with article 19.02. The additional .5 hr. was not authorized and was not mutually agreed to in advance as identified in article 19.05 (b). Your schedule was adjusted to reflect that additional .5 hour and 36 hours' notice was given as per article 19.05 (c)(i). CLRCS did comply within the scope of the Collective Agreement. It is to be noted that this is the first Collective Agreement between the parties. The relevant sections of the Collective Agreement which the parties referred to in their submissions are the following: 4.01 The Union acknowledges that the management of the Employer's operations and the direction of its employees are vested exclusively with the Employer, except as specifically abridged or modified by this Agreement. Without limiting the generality of the foregoing, it is the exclusive function of the Employer to: -2- (b) maintain order, discipline and efficiency and, in connection therewith, to establish, amend and enforce reasonable policies, rules, procedures and standards of performance to be adhered to by employees provided that they shall not be inconsistent with the provisions of this Agreement; (g) plan, direct and control the operations including but not limited to: determination of services; introduction of new methods, facilities and equipment; control over the amount of supervision; combining or splitting up of classifications/grogram areas; establishment of work schedules; the extension, limitation, curtailment or cessation of operations or any part thereof. 19.02 The regularly scheduled hours for a Full -Time employee shall be either eight (8) or twelve (12) hours per day, dependant on program area schedule and eighty (80) or eighty-four (84) hours per two week pay period. The parties agree that the support needs of an individual in our care may require the scheduling of additional hours on an as needed basis to be mutually agreed upon between the employee and the employer. The employer shall provide, in accordance with article 19.05(d)(i), as much notice as possible regarding the scheduling of additional hours and, where possible, will incorporate it into the posting of monthly schedules. Any extra hours worked shall be paid on the paycheque in the same pay period. 19.04 Employees may request to exchange scheduled shifts and days off with other qualified employees provided such requests are submitted to the Employee's own supervisor/manager in writing using the request for time form. Approval for the shift exchange must be received prior to the employee working the exchanged scheduled shift. Such requests shall not be unreasonably withheld. It is understood that such exchange of shifts shall not result in additional costs or overtime and shall be granted at the Employer's discretion given operational requirements. Where a shift exchange request has been granted, the supervisor/manager or his/her designate shall sign/initial the request for time form. A shift exchange shall be paid at the Employee's existing rate of pay. The Employer does not authorize an Employee to give away his/her shift to another Employee unless otherwise agreed to in writing. 19.05 (c) (i) The Employer shall post a shift schedule not less than fourteen (14) days in advance. After the schedule has been posted, the parties recognize that changes to the schedule may happen as a result of changes in the schedules of the individuals for whom services are being provided to or based on operational requirements. The employer will provide a minimum of 36 hours' notice for shift cancellation or amendments... -3- ... For shortened shifts, if 36 hours' notice or greater is provided, the employee will receive payment for the reduced number of hours. If less than 36 hours' notice is provided, the employee will receive payment for the number of hours the shift was originally scheduled. 20.03 Staff Meetings Where a meeting is held outside of an employees scheduled shift, the employee will be compensated for each hour in attendance at his or her regular rate of pay or overtime rate as may be applicable. If attendance at a meeting will result in overtime, the Employee shall notify his or her supervisor/manager prior to attending the meeting. 25.01 (a) Meal Allowance The cost of meals incurred by an employee shall be reimbursed to a maximum of eight dollars ($8.00) for breakfast, twelve dollars ($12.00) for lunch and twenty dollars ($20.00) for supper (inclusive of gratuities and taxes) when an employee is performing his or her regular duties and where reimbursement is pre -authorized the employer. To receive this compensation, an employee must submit a Request for Cheque Form with itemized receipts attached and forwarded to his or her Program Manager. THE EVIDENCE OF THE GRIEVOR The Grievor testified that she currently works at CLRCS as a Community Access Support ("CAS") in the Day Program. She explained that the purpose of CLRCS is to support adults with disabilities, both physical and developmental. CLRCS, the Grievor testified, offers various programs, such as County Access Support in which the clients participate from 8:00 a.m. until 4:00 p.m. Monday to Friday. This program provides activities such as ball hockey and sledge hockey. The Grievor said that a Residential and County Access program are offered in Arnprior and Renfrew, as well as a Supported Independent Living Program and a Respite and Supported Employment Program. IQ The Grievor said that she has worked for CLRCS for 17 years. For the past 11 years she has been a full time CAS 2, in the Community Access Support program in Renfrew. She oversees a caseload of 11 ladies. Part of her job is to help them with goal setting and to achieve the set goals. She also assists them with their annual Individual Support Plan (ISP). This is a requirement set by the Ministry of Community and Social Services (the "Ministry"), which funds CLRCS' activities. The Grievor said that she works from Monday to Friday from 8:00 a.m. until 4:00 p.m. She said that it is not often that she would work beyond her normal workday. However, occasionally it may occur for example, if she had to take a client to a doctor's appointment or if a meeting were to run late. The Grievor said that prior to the Collective Agreement coming into force she would need prior approval for a prearranged meeting. However, if she had to wait late at a doctor's appointment she said, "We usuallyworked it out afterwards". The additional hours worked prior to the existence of a Collective Agreement, were treated as lieu time On August 15, 2016, the Grievor said that she had scheduled a meeting at 3:00 p.m. with a family, to complete an ISP. She said that there was an urgency to complete the ISP because of previous cancellations by the family. Historically, she said, one hour has been sufficient time to complete the ISP for this particular family. However, on this occasion the meeting lasted one and a half hours. The Grievor said that typically a manger is present at such a meeting, but Lucie McCordick Boisvenu was unable to attend the meeting. The Grievor said that she did not obtain prior approval to stay beyond 4:00 p.m. In her view, it would not have been feasible to end the meeting at 4:00 p.m. She said she spoke to Lucie at 4:30 p.m. and Lucie told her to email Tina Maclaren, the Manager of the day program, to arrange lieu time. The Grievor told Lucie that she believed lieu time was no longer the appropriate remedy. Lucie replied that she was not sure and that the Grievor would have to sort it out with Tina. -5 - What followed was a series of emails between the Grievor and Ms. McClaren, which I have reproduced below: From: Alana Peer Sent: Tuesday, August 16, 2016 1:41 PM To: tmaclaren@clres.com Subject: Re; Janice's ISP Hi Tina, I did Janice's ISP yesterday and it ran Y2 hour overtime. Lucy is aware that I did not get out of here until 4:30 last night. I am sorry it was not pre -approved, I expected to be gone at 4. am not sure how this gets marked on my time sheet as I understand that we no longer receive lieu time. Thanks Alana. From: Tina Maclaren mailtc: tmaclaren@clres.com] Sent: August 16-16 4:05 PM To: Alana Peer Subject: Re: re: Janice's ISP Hi Alana — thank you for letting me know — I am glad that you were able to complete Janice's ISP and appreciate that you stayed to see that through. Yes, normally we have to have prior agreement on amending hours based on the needs of individuals. Because it has already taken place I would like to make arrangements for you to use that half in this same pay period which would mean arranging to either come in late or going home early one day this week. Please let me know today which day and time is going to work for you and the program. Thank you, Tina From: Alana Peer Sent: Wednesday, August 17, 2016 10:15 AM To: Tina Maclaren c.c. tonyajohnston@gmail.com Subject: Re: re Janice's ISP Iii Sol I understand that we should have prior agreement, this was an unavoidable, unexpected circumstance. I understood we are not to take lieu time but that according to section 19.02 of the collective agreement says "Any extra hours worked shall be paid on paycheck in the same payperiod." Please advise me how to mark my time sheet. Thanks Alana From: Tina McLaren Sent: Wednesday, August 17, 2016 11:39 AM To: Alana Peer Subject: FW: Janice's ISP Hi Alana - We are following our regular scheduling practices of adjusting hours in a pay period. This extra time was not authorized and was not mutually agreed to in advance (Article 19.05 (b) (c)). Although we understand it was necessary and do appreciate your time completing the ISP meeting. So I will adjust your schedule to reflect 8.5 hours on Monday and now giving you 36 hours -notice of shortening your shift on Friday to 8am to 4;30 p.m. and will make these changes on the CAS schedule (Article 19.0 (c) ). I will also notify Nicole of this change in the schedule. Thank you Tina From: Tina Maclaren mailto., tmaclaren@clres.com] Sent: August -19-16 1:03 PM To: apeer � clres.com Subject: Janice's ISP Hi Alana — Just a reminder of the prior 36 hrs notice that I gave you that your shift today ends at 3:30 to compensate for the extra .5 hr. that you worked on Monday. Arrangements have been made to the schedule Have a good weekend Tina The Grievor was asked if she believed that the employer had agreed that it was necessary for her to stay the extra half hour to complete the meeting. She replied, "Yes they were -7 - appreciative." She said that if she had paused the meeting to get approval [to work the extra half hour] that it would have been approved, but the parents would have been irate. Under cross-examination, the Grievor agreed that she did not receive prior consent before working the extra half hour on August 15, 2016. She said management was not available to attend the meeting that day. She agreed that there is a 24 hour support line. She agreed that she received more than 36 hours informing her that her Friday shift was to be shortened by one half hour. The Grievor further agreed that she worked 40 hours that week and was paid 80 hours for the pay period. THE EVIDENCE OF MS. TINA MACLAREN Ms. Maclaren is CLRCS' Manager of the Community Access Support Program. She oversees the program and supervises 17 staff members and is the Grievor's direct supervisor. Ms. McClaren testified that consent is required to extend an employee's shift. To obtain consent the employee can speak to her direct manager or to another manager who may be available. If not, the employee can call the support line, which is manned by a manager, or the executive director, on a 24/7 basis. Ms. Maclaren testified that the Grievor did not obtain prior consent to work an extra half hour on August 15, 2016. When Ms. MacLaren was made aware, the following day, that the Grievor had worked an extra half hour on August 16, she originally gave the Grievor the option to leave early or -8 - come in a half hour later on a day of her choice. Subsequently, she gave the Grievor 36 hours notice that her Friday shift (August 19th) would be adjusted for her to leave early that day. Asked why she decided to shorten the Friday shift, she answered that she has a strict budget which she adheres to. She explained that the budget reflects the support and services which CLRCS provides to its individual clients. She said that recently an email was received from the Finance Committee and Board of Directors, informing the managers that CLRCS was running at a deficit and they were to spend only on absolutely necessary items. Ms. Maclaren said that the budget is reviewed frequently and from time to time, activities that were provided to clients in the past can no longer be provided. Staff hours are often examined in order to decide what is or is not possible to provide, due to the budgeting restrictions. Ms. MacLaren said if she had been asked, prior to the Grievor working the extra half hour, she would not have approved it, as other options could have been utilized. The meeting could have been rescheduled or adjourned and finished at a later time. Asked, what steps would she have taken if she had approved the working of the extra half hour, she replied, "I would have taken the same steps and given the Grievor a 36 hour notice of shift change". Asked why, she replied "Because if I go over budget it will have a ripple effect." Asked whether in situations where extra hours are worked 36 hours notice is given to make that adjustment, she replied, "Yes it is". She added that the Grievor was compensated for every minute she worked that week. Under cross-examination Ms. MacLaren said that she agreed with the Grievor's testimony that the ISP meeting had been rescheduled on a number of occasions and that the deadline for completion was fast approaching. But added that she was not sure when the In Ministry deadline was due. She agreed that she did not know whether the Grievor would have completed what was necessary to be completed for the Ministry's purposes, if the meeting had been terminated at 4:00 p.m. Referring to her email of August 27, 2016, Ms. MacLaren was asked what she meant when she said "We understand it was necessary", she replied, "Yes, necessary to complete meetings and be annual". In re-examination, Ms. MacLaren said that she appreciated that the Grievor took the time But even if someone had prior permission to work she would always schedule time off with 36 hours notice. UNION'S ARGUMENT The Union argued that this dispute turns on the interpretation of article 19.02 of the Collective Agreement. According to the Union, there are two central issues that arise out of this article. (1) Does the clause require agreement in advance before the extra hours are worked? (2) When additional hours are worked in a day, must they be paid out or can the employer rectify the hours by requiring employees to take lieu time? The Union submitted that in approaching these questions one must be mindful of the following two principles. First, that in interpreting collective agreements, theirwords must be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object and the intention of the parties (Brown and Beatty 4, 2100 supra). Second, that all words [in the Collective Agreement] have meaning and that where different words are used they are intended to have different meanings. (Brown and Beatty 4:2120). -10 - Dealing first with question number one, the Union submitted that the words used in 19.02 are "... to be mutually agreed upon between the employee and the employer'. Nowhere does it say that "prior" or "in advance" mutual agreement is required. In this regard, Counsel for the Union directed my attention to Clauses 19.04, 20.03 and 25.01 (a). that do require prior authorization. Therefore, the Union argued, had the parties intended that pre -authorization for extra work was required under articles 19.02 they would have used similar language. As such, requiring pre -authorization in the instant case, would be tantamount to adding words to the Collective Agreement. This, the Union argued, is reinforced by the fact that in supporting the needs of a person in CLRCS' care, that support may not be anticipated in advance. For example, as the Grievor pointed out in her testimony, an out of town medical appointment may run later than anticipated. Therefore, the language in 19.02, the Union submitted, is broad enough to encompass such a scenario and allow for the additional hours to be agreed on after the fact. Turning to its second question, the Union submitted that the last sentence of the second paragraph of 19.02 simply states "Any extra hours worked shall be paid..." No reference is made about compensating the extra hours by lieu time. The Union asked me to take particular note of the absence of such a concept in article 19.02 considering that that was the manner in which the extra hours were treated, prior to the signing of the Collective Agreement. The Union submitted that Ms. McClaren's emails make clear that the extra work was necessary which, by implication, connotes agreement. Therefore, the extra half hour worked on August 15, 2016 should have been paid out. The Grievor should have been compensated, if the Employer had respected the wording of the Collective Agreement. -11 - In support of its argument the Union relied on the following text and cases: Brown and Beatty, Canadian Labour Arbitration (4th edition, 4:2100 and 4:2120); Re Union of Northern Workers and CNWT (Minister of Human Resources), 2016 Can LII 21504 (Moreau); Re OPSEU and OPSSU (De Freitas grievance), 2005 Can 1-11 57509 (Randall) RSB Logistic Inc. v Hale, [1999] CLAD No. 548; Re Insurance Corporation of British Columbia and Canadian Office and Professional Employees' Union, Local 378, 2012 Can 1-11 48971 (Taylor)). EMPLOYER'S ARGUMENT Counsel for the Employer began his argument by stating that article 19.02 is not the article that deals, for the most part, with the issue in the circumstances of this case. Rather, Article 19.05 (c) (i) speaks directly to the issue to be decided. It deals with the Employer's ability to alter shifts. Therefore, the issue to be decided is just that, the Employer's ability to amend shifts. Accordingly, it was the Employer's position that what needs to be decided, in the instant case, is the following; what was the Employer entitled to do in response to the extra half hour worked by the Grievor on August 15, 2016? The Employer submitted that the Grievor was scheduled for 40 hours that week and 80 hours for the two week pay period. That is precisely what she worked and for what she was compensated. While agreeing that lieu time is not a concept in this Collective Agreement, the Employer argued that that is not the issue. Rather, it is the Employer's ability to change shifts. From day one, the intent of the articles negotiated into the Collective Agreement has been to keep the Employer's costs under control. The actions taken in the instant case were -12 - to further these goals. Complying with the Collective Agreement, the extra half hour worked by the Grievor was compensated for without the Employer incurring any further costs. Therefore, the two questions that need to be addressed, in the Employer's view, are: 1. Whether 36 hours notice was provided to the Grievor for a shortened shift? 2. Whether an employee requires consent to work additional hours that were not scheduled? Dealing with question number one, Counsel argued that making an alteration to a shift is an inherent management right. Therefore, where a stipulated period of notice for a shift change is provided, no remedial or premium payment is owed. This temporary change does not give rise to a change in regular hours. The reduction in hours on Friday, August 19th, was within managements' prerogative to take care of the extra hours worked on Monday, August 15th. If there is a notice provision for a shift amendment and that notice is provided, no premium is owed. That is not to say, the Employer argued, that 19.02 has no meaning. Rather, it is to (i) establish regular scheduled hours of work and (ii) to note that additional care may be needed, but critical to working the extra hours to provide additional care, is the concept of mutual agreement. But, payment for the extra hours will only occur if the Employer cannot reschedule hours for the rest of the week. If one accepts that management has the right to alter shifts, if proper notice is given, there is no payment for the hours that that shift is reduced. -13 - The Grievor worked 8.5 hours on Monday and 7.5 hours on Friday: Despite the fact that mutual agreement was not reached, the Grievor was compensated for the 8.5 hours worked on Monday. In summary, in order to account for the unexpected circumstance and to stay within budget, the Employer relied on clause 19.05 (c)(i). It provided 36 hours notice and reduced the Friday shift by a half hour. The Employer maintained that it has every right to do this. Turning to the question of consent or mutual agreement, Counsel forthe Employer argued that mutual agreement was not reached. Expressing appreciation as Ms. MacLaren did in her email, for the Grievor's actions, is not agreement. Mutual agreement is necessary to avoid the large and unmanageable costs that would result if employees could extend a shift on their own volition. The Employer was sympathetic to the fact that meetings need to be carried out under tight guidelines, but argued that the language negotiated around shift changes was precisely for the purposes of making sure that employees did not have their hands tied when addressing these circumstances. Contrary to what the Union maintains, mutual agreement was not obtained in this case and that is supported both by the evidence of the Grievor and the wording of the emails. The Grievor's own words in her email of Wednesday August 17, 2016, ... "1 understand that we should have prior agreement.." certainly does not indicate that mutual agreement can be retroactive. She understood that it must be pre -approved. In support of its argument the Employer relied on the following text and cases: Brown and Beatty, Canadian Labour Arbitration 4th edition, 5:3100; Re SMS Modem Building Cleaning Service Inc. And U. F. C. W, Local 175 (2001), 100 LAC (4th) 298 (Wacyk); Re -14- Goodhumor-Breyers, Simco and U. F. C. W., Local 175 (2004), 127 LAC (4th) 348 (Weatherill); Re Waterloo Regional District School Board and Custodial Maintenance Assa 2012 Carswell Ont 9443, 111 C.L.A.S. 328 (Stout). UNION REPLY ARGUMENT Concerning the issue of mutual agreement, the Union directed my attention to the words of Ms. Maclaren in her email of August 17, 2016 in which she stated that the meeting the Grievor held with the client and her family on August 15, 2016, was "necessary". That in and of itself, the Union argued, is supportive of agreement after the fact. Finally, the Union submitted that if I were to accept the Employer's interpretation of Article 19.05 (c) (i), it would render Article 19.02 meaningless DECISION In order to resolve the grievance, one must first of all be mindful that this is a first Collective Agreement between the parties. As such, practices that may have existed prior to the signing of the Collective Agreement may be affected, if not altogether eliminated, by agreed to language in the new Collective Agreement. Under the heading "Hours of Work, Overtime and Shift Premiums" the parties chose to include the wording of Article 19.02, the meaning of which, in my view, is the essence of the dispute between the parties. In reviewing Article 19.02 and the other cited Articles of the Collective Agreement in an effort to arrive at a determination of the issue before me, I considered the following three questions: -15- (1) Whether the working of additional hours on an as needed basis has to be mutually agreed between the employer and the employee, prior to an employee working the extra hours? (2) If the answer to number (1) above is no, whether mutual agreement was reached between the employer and the grievor at any time prior to or after the work was performed? (3) When an employee works extra hours to which both parties have mutually agreed, does the Employer have the option of rescheduling the employees subsequent shift(s) to avoid payment for the additional hours worked? Question 1, Initially I was of the view that prior approval was necessary as that seemed a logical assumption based on the numerous overtime cases I have dealt with over the years. However, my view on this point changed after hearing the Grievor's testimony that, on occasion, when an out of town doctor's appointment runs late, scheduling of additional hours is not always foreseeable. Further, unlike other articles in the Collective Agreement where the parties specifically introduced the concept of pre -approval, nowhere in Article 19.02 is the concept of pre -approval to be found. See for example Article 19.04 where the parties state "Approval for shift exchange must be receivedrip or to the employee working the exchanged shift or Article 20.03 where the parties used the following words: "If attendance at a meeting will result in overtime the Employer shall notify his or her supervisor (Manager)prior to attending the meeting. Or finally, Article 25.01(a) which provides that an employee is only entitled to a meal allowance "when an employee is performing his or her regular duties and where reimbursement is ,pre -authorized by the employer. (emphasis added) Counsel for the Union also provided me with a number of arbitral awards to illustrate the type of language used in Collective Agreements when prior approval is required. -16 - Of particular note is the decision of Arbitrator Taylor in, Re Insurance Corporation of British Columbia supra. In that case the Employer required all overtime to be authorized in advance and did not allow for approval after the fact. The Employer adduced evidence which proved that employees were aware of the policy. Arbitrator Taylor while acknowledging that the policy existed and was known to the employees, concluded the following at paragraphs 65,66 and 67: [65] That unwritten policy, however, must conform with the requirements that govern the unilateral introduction of workplace rules found in KVP Co. v. Lumber & Sawmill Workers' Union, Local 2537 (Veronneau Grievance) (1965) 16 L.A.C. (Robinson). [66] At para. 34 of KVP, the Board said: A rule unilaterally introduced by the company, and not subsequently agreed to by the union, must satisfy the following requisites: 1. It must not be inconsistent with the collective agreement. 2. It must not be unreasonable. 3. It must be clear and unequivocal. 4. It must be brought to the attention of the employees affected before the company can act on it. 5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge. 6. Such rule should have been consistently enforced by the company from the time it was introduced. [67] The policy which the Employer seeks to rely upon offends requirements 1 and 6 of KVP. The policy is not consistent with the express language found in Article 14.04 of the Collective Agreement. By requiring pre- authorization of overtime, the Employer is adding words to and amending the language of the Collective Agreement. Article 14.04 does not provide for pre -authorization. It says all time worked in excess of the scheduled hours shall be paid at overtime rates. -17 - In the case before me, by requiring the extra hours to be pre -authorized the employer is adding to Article 19.02 a provision that does not exist, but does in other Articles of the Collective Agreement. On this point, I find it instructive to refer to the well worn maxim, inclusio unius est exclusio alterius, that is to say, the inclusion of one thing is the exclusion of the other. In applying this principle of interpretation to the circumstances of the instant case, I find that where the parties chose to agree to pre -authorization they stated as such in the Collective Agreement. It follows, therefore, that where they did not, their intention was not to require it. Finally, on the issue of mutual agreement or pre -approval, if you will, I did not find persuasive the Employer's argument that the Grievor acknowledged in one of her emails that prior approval was necessary. Collective Agreements are negotiated between Employers and Unions, not individual employees. Often individual employees do not fully understand their specific rights under the Collective Agreement. It is not up to them to interpret or police the Collective Agreement. That is the task of the bargaining agent which negotiated it. Therefore, in my opinion the Grievor's ignorance of her rights carries no weight whatsoever. I am therefore satisfied that any extra hours worked to fulfil the support needs of an individual in CLRCS' care does not necessarily require mutual agreement in advance. Turning to my second question, l have reviewed the evidence presented and have reached the conclusion that mutual agreement was not reached at any time, before or after the extra half hour was worked. Ms. MacLaren's appreciation that the Grievor stayed to complete the client's ISP does not, in my view, signify that she was in agreement that it was necessary to complete the ISP at that time. It was evidently clear from her evidence that she did not approve the working -18 - of extra hours either before or after the event. Nor, in my view, does her statement in her email of August 17, 2016 "we understand that it was necessary and do appreciate your time completing the ISP meeting" amount to mutual agreement. The Grievor, in my view, could have excused herself from the meeting for a few minutes when she realized it was to run late and used the 24/7 help line. I do not believe that the parents would have been upset at a few minutes break. Had she done so, I have no doubt that on explaining the circumstances, she would have obtained approval to work the extra half hour. As such, the conclusion to be reached on this point is that under the circumstances, the Grievor is not entitled to be paid for the extra half hour worked on August 15, 2016. Turning to my final question, I am of the opinion that the Employer does not have the option Article 19.02 of changing a subsequent shift therefore requiring an employee to take lieu time instead of paying out the extra hours. There is no dispute that prior to the signing of the Collective Agreement such was the employer's practice. Further, it was abundantly clear from Ms. MacLaren's evidence that presently that practice continues as before. Ms. MacLaren testified that even if she had agreed to the Grievor working extra hours, a change in a subsequent shift was the appropriate remedy. To paraphrase the Employer's submissions, it argued that regardless of the shift schedule which is posted at least fourteen days in advance, Article 19.05 (c)(i) permits it to amend a posted shift provided 36 hours advance notice is given. Therefore, in the event an employee works extra hours on a given day, those extra hours can be compensated by requiring the employee to work a reduced shift on a subsequent day. Or put another way, the Employer maintained that Article 19.05 (c)(i) in conjunction with the Employer's right to manage (article 4) provides it with the means to reschedule working -19 - hours on a short term basis, in order to avoid paying for extra hours worked, thus enabling it to stay within its budget. There is no dispute that the Employer is operating under a tight budget. And while I have great empathy for the employer's budgetary constraints, the Employer's argument on this point, in my view, is problematic for the following reason, if I were to accept the Employer's position it would render the phrase in Article 19.02 "Any extra hours worked shall be paid on the pay cheque in the same period", meaningless. In other words, to give the Collective Agreement the meaning impressed upon me by CLRSC, I would have to amend the Collective Agreement by reading out those words. This is something that is not within an arbitrator's discretion and is expressly forbidden by arbitral law and more specifically by Article 10.06 of the Collective Agreement, which for the sake of reference is set out below: The Arbitrator shall not be authorized to make any decision inconsistent with the provisions of this Agreement, or to alter, modify, add to or amend any part of this Agreement. I am therefore of the opinion that the parties inserted the words "Any extra hours worked shall be paid..." in 19.02 because they intended that employees be paid for working extra hours which were not anticipated when the schedules were drawn up. It is not a monumental leap to infer thatthe wording of Article 19.02 was intended to stop the practice of requiring employees to take lieu time for the extra hours worked in unexpected circumstances. It would be beyond logic to conclude that the parties would have agreed to the language in 19.02 requiring payment, if the Employer could circumvent it by using the provisions of Article 19.05 (c) (i). -20 - Further, Article 19.02 provides the following: "The parties agree that the support needs of an individual in our care may require the scheduling of additional hours on an as needed basis... (emphasis added) The use of the word "additional" in my view is significant, it suggests something supplemental, more or over and above what would normally be worked. Further the words "as needed" connote something unexpected or unanticipated. Indeed, Employer counsel in his argument referred to them as "additional hours that were not scheduled" The parties provided that the "additional" hours or "extra" hours over and above the normal scheduled hours "shall be paid on the paycheques in the same period". Not, "shall be dispensed with by allowing an employee to take hours in lieu, in the same pay period." It is not disputed that management has a presumptive right to establish working times (Brown and Beatty chap 5:3110 supra) and that clear language is required to restrict the Employer's right to change hours (Re Good Humor-Breyers supra and Re Waterloo Region District School Board supra). That being said, however, it is my opinion that that right is abridged by the clear language in Article 19.02 that provides for payment, not lieu time, for extra hours worked to support a client in CLRCS's care when there is an unanticipated or unforseen change in the support needs of a client. For example, when a doctor's appointment or an ISP meeting runs late. To reiterate, Article 19.05(c)(i) does not, as such ,operate to nullify the provisions of 19.02 Rather, it allows the Employer to alter posted schedules as a result of foreseen changes in the schedule of the individuals for whom services are being provided or based on operational requirements in the normal course of CLRCS' daily functions. -21 - In summary I find that: 1. Mutual agreement may be reached subsequent to an employee working extra hours, under Article 19.02. 2. The Employer does not have the option of using Article 19.05 (c)(i) to require an employee to take lieu time to compensate for the extra hours worked under Article 19.02. 3. The Grievor did not receive the Employer's agreement at anytime before or after working the extra half hour on August 15, 2016 and is therefore not entitled to be paid. Subject to my findings above on the disputed articles of the Collective Agreement, the grievance is dismissed. P' Sydney Baxter