HomeMy WebLinkAboutAguilar Group 16-10-18IN THE MATTER OF AN ARBITRATION
BETWEEN:
Mackenzie Health
("the Hospital")
and
Ontario Public Service Employees Union, Local 374
("the Union")
Group Grievance - Aguilar et al. — OPSEU # 2015-0374-0008
ARBITRATOR: Mary Lou Tims
APPEARANCES:
FOR THE HOSPITAL: Robert J. Hickman - Counsel
FOR THE UNION: Tim Mulhall — Grievance Officer
A Hearing was held in Richmond Hill, Ontario on September 27, 2016.
1. 1 have before me a group grievance dated October 14, 2015 alleging that the Hospital violated
the collective agreement in instituting a schedule change for full-time employees in its Food
Services Department.
2. There is no dispute that prior to July 2010, full-time employees in the Food Services
Department were required to work one in four weekends. In or around July 2010, this changed
and they were required to work two in four weekends. The Union believed that full-time
employees in Food Services were the only employees affected by such change at the time. The
Hospital described that the need for full-time Food Services employees to work two in four
weekends arose in the. context of broader organizational changes undertaken at the time in the
Food Services Department.
3. The Union referred to the following provisions of the parties' collective agreement:
ARTICLE 3 — MANAGEMENT RIGHTS
3.01 The Union recognizes that the management of the Hospital and the direction of the
employees are fixed exclusively with the Hospital and shall remain solely with the
Hospital except as specifically limited by the provisions of this Agreement, and without
restricting the generality of the fore going (sic), the Union acknowledges that it is the
exclusive function of the Hospital to:
(c) to have the right to plan, direct and control the work of the employees and the
operations of the Hospital. This includes ... work schedules... .
(d) The Hospital recognizes that the rights described in the Article shall be exercised in a
manner consistent with all provisions of the Collective Agreement.
ARTICLE 4 — DEFENITIONS
4.02 A "full-time employee" is an employee who is on average regularly scheduled one
hundred and fifty (15 0) hours in a four (4) week period.
4.03 A "regular part-time employee" is an employee who makes a commitment to the
Hospital to be available and is regularly scheduled for less than one hundred and fifty
(150) hours in a four (4) week period.
When making a commitment to the Hospital, a regular part-time employee must be
available to work at a minimum;
ii) Work two (2) out of four (4) weekends as required by the Department;
ARTICLE 5 — NO DISCRIMINATION OR HARASSMENT
5.01 The Hospital and the Union agree that there will no discrimination ... with respect
to any employee because of his membership or non -membership in the Union or activit;�
or lack of activity on behalf of the Union or by reason of exercising his rights under the
Collective Agreement.
5.02 It is agreed that there will be no discrimination by either party or by any of the
employees covered by this Agreement on the basis of grounds prohibited by s. 5(1) of the
Ontario Human Rights Code.
ARTICLE 18 — HOURS OF WORK & OVERTIME
18.02 Full-time employees shall normally be scheduled seventy —five (75) hours on a bi-
weekly basis, with a normal or standard work day of seven and one-half (7 '/2) hours per
day, exclusive of a one-half (1/2) hour meal break.
4. The Union outlined its position here in some detail. Most fundamentally, however, it argued
that it was not open to the Hospital to implement the scheduling change in issue where only full-
time Food Services Department employees were affected by it, and not employees in other
departments. The Union suggested that the scheduling change in issue was in that sense
"discriminatory" and "abusive of management rights." It was, however, unable to demonstrate
that any contractual provision limited the Hospital's right to implement the scheduling change in
issue here, and that any provision of the collective agreement was thus breached when full-time
Food Services employees were required to work two of every four weekends. Having
considered the evidence and the submissions of the parties, I must therefore find that the Union
has not established that the Hospital violated the collective agreement in instituting the contested
scheduling change, and that the grievance before me must be denied.
DATED at TORONTO this 18th day of October, 2016
"M. Tims"
Mary Lou Tims, Arbitrator