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HomeMy WebLinkAbout1995-1212BINKLEY96_11_06 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1I8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELl5COPIE (416) 326-1396 GSB # 1212/95 OPSEU # 95E164-76 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Binkley et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE L Mikus Vice-Chairperson FOR THE J Gilbert GRIEVOR Grievance Officer Ontario Public Services Employees Union FOR THE P Toop EMPLOYER Policy Advisor Employee Relations Board Management Board Secretariat HEARING October 15, 1996 ~ In June of 1995, thirteen Registered Nurses and Registered Practical nurses employed at the Lakehead Psychiatnc Hospital filed identical grievances alleging that they were unjustly derued their legal allotted time off on electIOn day Their claun arises from the fact that, although they were all granted three hours off on June 8, 1995 to vote 10 the prov1Ocial electIOn, the three hours were scheduled to include their one hour lunch break. They ask that they be reimbursed for that hour JURISDICTION At the commencement of the hearing the Employer raIsed an objectIOn to the JurisdictIOn of this Board to hear the grievance on the grounds that the gnevance does not allege a violation of the collective agreement. It does not involve a question of the interpretation, application or an alleged violatIOn of any proviSIOn of the collectiVe agreement but, 1Ostead, alleges a breach of the Elections Act R. S 0 1990, as amended, which tlus Board does not have the JunsdictlOn to deCide. The Employer took the pOSition that, although arbitrators do have the power to interpret and apply employment related statues, the Election Act is not an employment related statute. It is a quasi-cnminal statue that allows for itS own enforcement by way of summary conviction. It does not create any independent nghts under the collective agreement, is not 1Oconsistent With any proVISions of the collective agreement and is not 1Ocorporated into the collective agreement by reference. It is a naked claun for redress of an alleged breach of a statue and cannot be the baSiS for a gnevance under the collective agreement. 1 - ------- 2 In support of its position, it referred the Board to the case ofRe Ford Motor Company of Canada and Canadian Automobile Workers, Local 1520 (1992), 27 L.AC. (4th) 257 (B.E. Palmer). That case involved a claim for overtIme because, m order to comply wIth the statutory obligatIon to allow employees tune off to vote, the employer altered the work schedules so that one-half hour of scheduled overtime was eliminated. In consIdenng the application of the provincial and federal Elections Acts to the issues before him, the arbItrator concluded, at page 264 .I am of the opinion that this grievance should be dismissed. In this regard it is my VIew that legislation, such as the Elections Acts here in issue can only be used by arbitrators in relation to the mterpretatlon of the collectlve agreement m three SItuatlOns: first, where It specIfically is incorporated into a collective agreement: second, where it asSIsts in the mterpretatlon of unci ear collectlve agreement language: and, thrrd, where such legIslation is in direct conflIct with the provisions of a collective agreement, makIng these unlawful to enforce. Conversely, It IS clear that such legIslation cannot be used as the baSIS for rights enforced by collective agreement arbitratlon: those must arise from the wording of the collective agreement. Thus, the basis of the right the union wishes enforced lIes outside the collective agreement. Tlus is precisely what an arbItrator cannot do and, hence, I must diStnlsS tIlls gnevance. The Union took the position that these gnevances are not merely clauns under the Elections Act for an alleged breach of that Act. The Issue mvolves the nght of an employer to dictate what employees are to do on theIr one-hour unpaid lunch period. The lunch periods are a right under the collectIve agreement and the grievors are entitled to seek redress under the collectIve agreement for a breach of that nght. The Union also subffiltted that the Ford Motor case (supra), IS no longer applIcable m Ontano Subsection 48 (12) of the Labour Relations Act RS 0 1990 Ch. L.2, as amended by Bill 40, states. " 3 (12) Powers of arbitrators, chairs of arbitration boards, and arbitration boards - An arbitrator or the chair of an arbitration board, as the case may be, has power, G) to interpret and apply human nghts and other employment-related statutes, despite any conflict between those statutes and the tenns of the collectIVe agreement. To the extent that the Elections Act affects the provisions of the collective agreement concermng unpaid lunch breaks, it is employment related and within the junsdiction of this Board to determine. In support of its position, it referred the Board to the case ofRe Board of Trustees of Calgary Board of Education and Alberta Teachers' Association (1994), 46 L.A.C (4th) 353 (J Moreau). DECISION The amendments to the Labour Relations Act were intended to give arbitrators and arbitration boards broad powers to deal WIth the Issues before it/them. It expressly allows them to 10terpret and apply employment related statues to avoid multiplicity of heanngs, inconsistent decisions, expense and delay While the Elections Act IS not strictly speakmg an employment related statue, to the extent that the employer applies that Act 10 such a way that nghts under a collectIve agreement are affected, an arbitrator has the obligation to 10terpret that Act and apply 1t 10 such a way that any conflict between it and the collective agreement are resolved in a final and bind10g manner In tlus case, the Employer scheduled the gnevor's three hour vot1Og penod to include theIr lunch penod. The hours of work 10 the collective agreement provide for an unpaid lunch period dunng the shift. It is witlun my JunsdictlOn to determme, on the facts of tlus case, whether the Employer 4 properly applied the Elections Act when he Included a one hour unpaid lunch period In the three hour voting period. THE ISSUE The parties were agreed that the issue before me is whether the requirement to allow three consecutive hours off on election day can include an employee's one hour unpaid lunch period. That reqUIres an determInation of what "three consecutive hours)) means Within the context of the Elections Act. The relevant prOVIsion of the Election Act read as follows: EMPLOYEES SERVING OR VOTING AT AN ELECTION 6. (3) Every employee who is qualified to vote shell, while the polls are open on polling day at an electIon, have three consecutIve hours for the purpose of voting and, if the hours of work of his or her employment do not allow for three consecutIve hours, the employee may request that his or her employer allow such additional time for votIng as may be necessary to provide those three consecutIve hours and the employer shall grant the request. (4) No employer shall make any deduction from the pay of any employee or impose upon or extract from the employee any penalty by reason of his or her absence from work during the consecutIve hours that the employer is required to allow under subsection (3). (5) Any b.me off for voting as proVIded ill subsection (3) shall be granted at the b.me of day that best swts the convenience of the employer The Union took the posItlOn that the three consecutIve hours In the Elections Act are Intended to allow an employee to vote. It was not mtended that the three hours Include an unpaJ.d lunch penod. The Mirustry took the pOSItIon that there IS nothmg In the Election Act that reqUIres the employer to schedule those three consecutIve hours dunng workIng hours. If these gnevors had 5 fimshed their shift at 4 p m. or 5 p.m., the Employer would not have been obligated to gIve them any tIme off duty to vote. Because they worked from 7 a.m to 7 pm., they were entItled to three consecutIve hours during theIr shift to vote. Those three hours were not necessarily to be paid time and it was to be scheduled at the convenience of the Employer, as stIpulated in the Act. The Election Act was drafted to ensure that all eligible voters have the opportunity to exerCIse theIr franchise and give effect to their political views. The only obltgatIon on the employer IS to proVIde those three consecutive hours. Those hours can be scheduled at the beginning or end of the work day or dunng workIng hours. They can be paId or unpaid hours. Indeed, the Act specIfically states that the scheduling of those three hours are to be at the convenience of the employer In tlus case, the Employer was In the pOSItIon ofhavmg to schedule tIme off to all of these grievors over one shift. He determined that the most convenient method of domg that was to schedule them In three hours periods that included theIr lunch penods. According to the Act, he was entitled to do that. He was not obligated to schedule all of those hours during the grievor's workIng hours. For those reasons, the grievances are dismissed. Dated tlus 6th of November, 1996 ~)~ Loretta Mikus, Vice-ChaIr