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HomeMy WebLinkAboutUnion 08-07-31 ., In The Matter of an Arbitration Between: Northeast Mental Health Centre (The "Employer") -a nd- Ontario Public Services Employees Union, Local 636 (The "Union") Re: Grievances 2008-0636-0027 2008-0636-0028 Appearances: For The Employer: Geoff Jeffery, Counsel Allison Robinson, Manager of Human Resources For the Union: Marion Melville, OPSEU Grievance Officer Jackie Smythe, President Craig Nesbit, Chief Steward Hearing conducted In North Bay, Ontario on July 3, 2008 This Award relates to two grievances regarding contractual interpretation filed by the Union. The Employer came into existence as of November 21, 2005 as a result of the Province of Ontario transferring the management and operation of the North Bay Psychiatric Hospital to the Northeast Mental Health Centre. The Ontario Public Service Employees Union became a bargaining agent for employees of the new Employer. There are three different bargaining units for which OPSEU holds bargaining rights: (1) a nursing unit; (2) a paramedical unit; and (3) a service and clerical unit. The parties subsequently entered into negotiations for a first collective agreement. Those negotiations concluded on April 1, 2008 with agreement on a single combined collective agreement covering all three bargaining units. Issues have arisen regarding the interpretation of certain provisions of the first collective agreement. Those issues in dispute will be dealt with separately in this Award. Article 13:05 - Weekend SchedulinJ~ - Overtime 1 The issue which was the subject of the May 13 2008 grievance (#2008- 0636-0027) filed by the Union relates to Article 13.05 of the collective agreement which reads as follows: 13.05Weekend Scheduling The Hospital will endeavour to provide at least one (1) weekend(s) off in three (3). If an employee is required to work three (3) consecutive weekends, the employee will be paid at the overtime rate for all hours worked on the third consecutive weekend and any subsequent weekend until a weekend is scheduled off, save and except where: a) Such weekend has been worked by an employee to satisfy specific days requested by such employee, or b) Such employee has requested weekend work, or c) A third consecutive weekend is worked as a result of an exchange of shifts with another employee, or d) Any other reason as negotiated by the parties The gist of the dispute between the parties is whether an employee, who is not scheduled to work a third consecutive weekend but is offered an available shift and accepts the offer to work that shift, is entitled to overtime rates for the hours worked on that third consecutive weekend of work. 2 It is the Employer's position that Article 13.05 does not apply to the above outlined scenario because the employee is not being "required to work" the third consecutive weekend. The employee is offered the opportunity to work an available shift; the employee can accept or decline the offer. The Employer does not demand, insist or order the employee to accept the offer of work. For the Employer the reference to "required to work" implies that the employee is being compelled by the Employer to the work the third consecutive weekend. It was submitted that a review of the collective agreement as a whole suggests that when the parties utilized the word "required" there was always an element of compulsion. For example, the language of Article 13.06, (Standby Provision), refers to an employee "required to stand by or remain available" suggesting the employee is compelled to be available for the purposes of that provision. Similarly, reference was made to Article 13.08, (Transportation Allowance) which provides that employees "who are required to use their vehicles" will receive the transportation allowance. Again it is submitted, "required" in that context implies the employee being compelled to use his vehicle for the Employer's business. Particular reference was made to Article . 20.05 (Jury and Witness Duty), since that provision included both the terms 3 "requested" and "required ". Specifically the provision refers to an employee being "requested to serve" as a juror and the employee being "required to attend as a witness in a court proceeding... ". It was suggested, therefore, that the parties had drawn a clear distinction between being requested to do something as opposed to being compelled to do something. A request by the Employer that an employee work an available shift was therefore different, in accordance with the phraseology used by the parties, then the employee being required to work that available shift. It was submitted that the parties used of the term "required" in the following provisions also implied that the employee was being compelled: 18.05 (ii) (a); 19.02; 20.06{a); 20. 06{b) 21:02{a); 21:02{b); 21:03. In support of its position the Employer referred to the following authorities: Webster's dictionary; Chelsev Park Nursing Home (Oxford) division of Diversicare v. Ontario Nurses' Association ( Premium Pay Grievance) March 24,1998, unreported, (Kaplan) For the Union the phrase "required to workll as set out in Article 13.05 referred to the Employer requiring the work to be performed. The Employer makes a decision that the work is required to be done before offering the work to 4 the employee. Once the employee accepts the offer to work, the employee is required to attend and work the shift in question. The Union submitted that the following cases supported its interpretation of Article 13.05: Kingston General Hospital and Ontario Nurses' Association (unreported) (September 5 1995) (Knopf); Queenswav Carleton Hospital and Ontario Nurses' Association (unreported) July 10, 1998 (Langille); North York General Hospital and Ontario Nurses' Association (unreported) June 21, 2007 (Goodfellow) The relevant jurisprudence clearly supports the position of the Union. In a series of cases involving similar, if not identical, language to that found in Article 13.05, arbitrators have viewed lithe required to work" phrase in terms of an employer requiring the work to be done and the obligation of the employee to perform the work if he or she accepts the offer. The leading case in support of this view is the decision in Kingston General Hospital (supra). The relevant language before Arbitrator Knopf in that case was almost identical to the wording contained in Article 13.05. In rejecting the employer's argument in that case that IIrequired" suggested the nurse was compelled to work, Arbitrator Knopf noted as follows: 5 In our view, the word required can and does have specific meaning within this Collective Agreement. First of all, read together with the preceding sentence in the article that directs the Hospital to schedule alternative weekends off, the word IIrequirell forces the Hospital to only ask a nurse to work on a third or subsequent weekend when work is required to be done and when her services . are required. It is not trite for the parties to reinforce the direction to look for nurses who have not worked three consecutive weekends before offering it to nurses who may attract the premiums or who may, because of specific circumstances, be required in a particular situation. Therefore, the word required in Articles M-6 and M-7 can be read as meaning that the Hospital will not ask nurses to work three or more consecutive weekends unless there is a requirement for the work to be done or a requirement for that nurse. This is consistent with the Sunbeam and Hotel Dieu dicta, although, as was stated above, those cases are not entirely persuasive on this point. The fact that a nurse may decline to accept the required work does not negate the obligation of the. Hospital to ensure that the work is in fact required to be done before asking a nurse to work three or more consecutive weekends. Secondly, the word required can mean scheduled in the context of being scheduled outside of the prescribed tour of schedule. For example, if a nurse is offered and accepts the "required" work resulting in her working three or more consecutive weekends, she becomes scheduled for the intervening required work. Once scheduled, because of her acceptance of the offer, the parties agree that the nurse is expected to attend and perform the scheduled tours. If she failed to attend as promised or failed to complete the shift without valid reasons, this would undoubtedly result in disciplinary consequences, Thus she is "required to work" in accordance with the Hospital's requirements that the work be performed once she commits to work on the weekend. Once the offer for this available and required work is accepted, the 6 employee is then required to perform in accordance with his/her promise to work and the Hospital is obligated to pay the premium. SimilarlYl Arbitrator Goodfellow in the North York General Hospital (supra) case reached a similar conclusion regarding the term {{required II. It is true as Mr. Jeffrey noted1 on behalf of the Employer1 the relevant language before Arbitrator Goodfellow was not a weekend scheduling overtime provision. The facts of that case involved whether the overtime pay provisions were applicable when a nurse was II required to work11 her or his scheduled day off. While dealing with a different type of overtime provision1 Arbitrator Goodfellow was dealing with the same issue as to whether an employee who accepts an offer to work a particular shift can be viewed as being {{required to workll that shift. Relying upon the decisions in Kingston General Hospital (supra); Queenswav General Hospital (supra); Chelsev Park Nursing Home (supra) Arbitrator Goodfellow reached the following conclusion regarding the appropriate interpretation of the phrase . {{required to work11: In my view1 from among the various cases referred to by the parties1 those with the greatest application to the present circumstances involve the requirement to make overtime premium payments to nurses who are "required" to work on their scheduled weekends off. In those cases - where nurses are no more IIrequiredll to work in 7 the sense argued by the Hospital than they are here - the obligation to pay overtime premiums has nevertheless been found. Arbitrators have read the word "required" as referring to the need for the nursels services and the ensuing obligation on the nurse to work once the offer has been made and accepted. Indeed, this result was arrived at by Arbitrator Kaplan in Sunnybrook notwithstanding that the relevant provision contained the additional words "required by the employer" to work on a scheduled weekend off. Arbitrator Kaplan in the Chelsev Park Nursing Home (supra) case suggested on first impression it is difficult to conceive of an employee who unequivocally has the option to turn down an offer of a shift of work as being viewed as being IIrequired to workll that shift. Ultimately Arbitrator Kaplan however, came to the following conclusion: ...What Article 16.09 is directed at is ensuring that employees who work an extra weekend shift, their work obviously being required, received premium pay. It should be noted, once again that three other arbitration boards have, in construing similar language, reached this same result. Like the Board in Kingston General, I must conclude that when the nursing home requires work to be done and offers it to a nurse who will then find herself working a weekend that would otherwise be scheduled off, the nurse is entitled to the premium payment. The existing jurisprudence clearly suggests that the phrase IIrequired to work" in this particular context should be interpreted in the manner as suggested 8 by the Union. This is not to mean, however, that other wording in the relevant provision, or the wording of the collective agreement as a whole, could not reveal a different intention by the parties to this particular collective agreement. In particular if the parties' usage of the word "required" always implied that the employee was compelled to act that fact may have been relevant to rebut the presumption suggested in the case law. Under this collective agreement the term "required" as was suggested by the Employer in certain contexts clearly suggests the Employer is compelling the. employee. There are, however, in my view, provisions of the collective agreement where the word "required" would seem to be used in a manner similar to the manner it is used in Article 13.05. In particular, it is far from certain that in the case of Article 21.02 and 21.03 (Paid Holidays) that an employee who agrees to work on a designated holiday pursuant to a request by the Employer would not be entitled to the premium rates set out in those provisions. In conclusion, it is my determination that, if the Employer requires the work to be done and offers the work to an employee who accepts the offer and that employee ends up working a third consecutive weekend, Article 13.05 is applicable. And, subject to the applicability of the specified exceptions set out in 9 that Article, the employee is entitled ~o premium pay for all hours worked on the weekend. This part of the grievance is therefore upheld. It is hereby ordered that the Employer violated the collective agreement by not applying Article 13.05, to employees who were offered work and worked on a third or subsequent consecutive weekend. The Employer should compensate the affected employees accordingly. I remain seized with respect to any dispute regarding the interpretation or implementation of this order. Overtime - Hours Worked - Article 13.01 The second contractual interpretation dispute between the parties relates to the application of Article 13.01 which reads: 13.01 Overtime All authorized time worked in excess of seven-and-a-half (7.5) hours in anyone (1) day or seventy-five (75) hours in a bi- weekly pay period for staff or a thirty-seven and a half (37.5) hour work weekand in excess of eight (8, hours in anyone (1) day or eighty (80) hours in a bi-weekly pay period for staff or a forty (40) hour work week, will be compensated at the rate of one and one-half (1 ~ ) times the regular rate of pay for every hour worked, or the equivalent of compensating time off at the employees option. 10 Article 13.01, therefore, sets out a bi-weekly threshold of 75 or 80 hours worked (depending on whether the employee works 37.5 or 40 hours weekly). An employee is entitled to be paid the overtime rate for every hour worked in excess of the relevant bi-weekly threshold. It is the position of the Union those hours for which an employee receives pay through such provisions as vacation, lieu days and statutory holiday pay should be included for determining whether the relevant bi-weekly threshold has been exceeded. It was submitted all those types of payments are "earned benefits" of an employee which are expressed in terms of a quantity of hours of work. For example, one day of vacation is equivalent to 7.5 hours for an employee whose normal shift is 7.5 hours. It is further argued that the employee's utilization of those {learned benefits" (i.e. taking a vacation day or lieu day) should not be held against the employee in terms of the calculation of the bi- weekly overtime thresholds. In support of its position the Union relied on the previously referred to decision of Arbitrator Goodfellow in the North York General Hospital (supra}case. The position of the Employer is that overtime is defined in Article 13:01 as authorized {ltime worked" for every" hour worked" in excess of the relevant bi- II weekly threshold. It was submitted that the phrases "hours worked" and "time worked" should be given their normal meaning; as in the employee being at work performing duties on behalf of the Employer. Vacation pay paid to an employee for a particular day may be expressed as so many hours of pay, but the employee did not actually "work" those hours. It was further submitted to abide by the Union's interpretation the reference to "hours worked" in Article 13.01 would have to be amended to read as "time for which an employee was paid". It was asserted such an amendment or alteration of the collective agreement language would be contrary to the express prohibition set out in Article 16.14 that an arbitrator should not "alter, modify, add to or amend" the collective agreement. In support of its position the Employer made reference to the following authorities: Brown and Beatty, Canadian Labour Arbitration 4th ed. paras 8:2120, 8:2130; SudburvGeneral Workers 14 LAC 97 (Little); Beatrice Foods v Retail Wholesale& Department Store Union, Local 440 44 LAC (4th) 59 (McDowell); Sing Tao Newspapers (Canada) Ltd. v. Communications, Energy and Paperworkers Union of Canada - Local 87 - M ( Southern Ontario Newspapers Guild} May 15,2007 ,unreported (Nairn) ; Lundy Steel Ltd. and United Steelworkers, Local 12 41409 L.A.C. (2d) 105 ( H.Brown) ; Sobevs Ontario Limited v. United Food & Commercial Workers International Union, Local 175 March 221 19991 unreported (E.Newman); Windsor Regional Hospital v. Canadian Union of Public Emplovees, Local 1132 (Hawkins grievance), November 3/2000 unreported (Crljenica); Mount Sinai Hospital v. Ontario Nurses Association May 15/2006 unreported (Charney) It is my view1 that the wording of Article 13.01 is clear in suggesting that the intent of the parties was that only those hours actually worked by the employee would be included in determining whether the relevant bi-weekly overtime threshold had been exceeded. There is no reason to suggest that the parties by using the phrases "all authorized time workedll and lIevery hour worked II did not intend that the word II worked II in those contexts would not be given its normal meaning of performing activities on behalf of the Employer. As Mr. Jeffrey suggested if the parties intended allllearned benefitsll for which an employee was paid to be the relevant determinant they would have used wording such as II for which an employee was paid II . Additionally the parties could have set out IIdeeming languagell in the relevant lIearned benefifl provision stipulating the earned benefit be deemed time worked by that employee. 13 Support for the interpretation outlined by the Employer is found in the case law it relied upon. In particular reference is made to the decision of Arbitrator Newman in the Sobevs Ontario Limited v. United Food & Commercial Workers International Union, Local 175 (supra) case. In that case where the issue was whether hours of statutory pay should be viewed as "hours workedll in calculating overtime, Arbitrator Newman made the following determination: ItTime worked" and "hours workedll are expressions which mean exactly what they mean in common parlance. They mean those periods for which the employee attended and performed the duties of the job. If the parties had intended to calculate entitlement to overtime according to a different criterion, that of "earningsll they would have used different language, such as they chose to in drafting Article 8:01 of the part-time agreement, regarding the calculation of vacation time. Or, they might have explicitly included days paid as statutory holiday as part of the overtime entitlement calculation, as done in the matter described by Arbitrator Brown in Kimberley-Clark of Canada Limited and International Chemical workers Union, Local 813,(1974) (A3948), where the agreement provided: ...In determining weekly overtime, a statutory holiday for those eligible will count as a day worked. The language, in this case is clear and unambiguous. Overtime entitlement is calculated according to the time or hours engaged in the performance of the job, and does not include time paid for statutory holiday. 14 As to the North York General Hospital (supra) case relied upon by the Union, the relevant collective agreement language in that case was kind quite different than that found under Article 13.01. Arbitrator Goodfellow's reasoning in that case was significantly influenced by a clarity note contained in the relevant overtime provision which expressly stipulated that a nurse was entitled to overtime if she was required to work on his or her scheduled day off. Additionally in that case the Employer had historically included vacation day and lieu days as hours worked for the calculation of weekly overtime. That particular fact drove Arbitrator Goodfellow to conclude that the Hospital in that case could not provide any meaningful reason to treat an absence for which a nurse received sick pay any differently. In conclusion, therefore,it is my view that the Employer's interpretation of Article 13:01 is to be preferred. Accordingly that part of grievance 2008-0636- 0027 is hereby dismissed. Compressed Work Week - Article 12.16-0vertime The third issue in dispute between the parties concerned the proper interpretation of Article 12:16 of the collective agreement which reads as follows: 15 12.16 Compressed Work Week Arranoements If the parties agree to a compressed work week arrangement in a department or program, such an arrangement shall be negotiated by the parties in accordance with the template Memorandum of Agreement below. Claritv Note: It is intended that existing compressed work week agreements will continue, subject to termination in accordance with the template Memorandum of Agreement. The parties agree that such arrangements will be reduced to writing in the form set out below within 60 days of ratification. It is understood and agreed that modification to the existing arrangements may be necessary as a result of changes to the standard normal work day. The relevant provisions of the agreed to template Memorandum of Agreement referred to in Article 12: 16 read as follows: Memorandum of Agreement Northeast Mental Health Centre -and- The Ontario Public Service Employees Union And it's Local # 636 This Compressed Work Week Agreement is made in accordance with Article 12 .16 of the Collective Agreement 16 Article 2 - HOURS OF WORK 2.01 The normal or standard extended work day shall vary according to the particulars of the Compressed Work Week schedule for the department. [Detailed description of the hours of work with an attached schedule where appropriate] Article 3 - OVERTIME 3.01 Overtime shall be defined as being all hours worked in excess of the normal or standard extended work day, as set out in Article 2.01 of this Memorandum, and all hours worked on what would normally be a scheduled day off. Article 6 - OTHER PROVISIONS 6.-01 All other provisions of the collective agreement will apply, with necessary modification to employees on Compressed Work Week arrangements. The parties have not, as yet, reached agreement on a Compressed Work Week agreement. They, however, disagree over the potential application of Article 3.01 of the template agreement. That provision outlines a definition of overtime that is different than set out in the overtime provision found in the main body of collective agreement, the previously discussed Article 13.01. In particular it seems to provide for a more generous overtime provision suggesting 17 all hours the employee works on what would be normally a scheduled day off necessarily constitutes overtime. The Employer approaches this issue from the perspective that pursuant to Section 55 of the Ontario Labour Relations Act, 1995 there can be only one collective agreement between the parties and as such the "template Memorandum of Agreement" is an ancillary document. While it is accepted that this document is part of the collective agreement it is submitted that the same principles apply to it as would be the case with respect to an ancillary document lying outside the collective agreement. In particular it is suggested that the provisions of an ancillary document should be subordinate to the provisions found in the main body of the collective agreement. In this regard if there is a conflict between the two provisions then the collective agreement language should prevail. In this case it is suggested that, since there is a conflict between Article 13.01 of the collective agreement and Article 3.01 of the template Memorandum of Agreement, the definition of overtime set out in Article 13.01 should prevail. Alternatively it is argued that Article 3.01 should be "read down" such that it should be given an interpretation consistent with the interpretation given Article 13.01. 18 It was further suggested to abide by the Union's interpretation would result in employees working under a Compressed Work Week agreement ending up in a more advantageous position than the rest of the bargaining unit. They would be entitled to overtime whenever they worked on a scheduled day off and that would not necessarily be the case for other employees. In support of this particular argument the Employer relied on the following authorities: Brown and Beatty, Canadian Labour Arbitration 4th ed. para 4:2250; Thompson Products Emplovees Association and Thompson Products 21 L.A.C. 125 (Weiler). Notwithstanding the able arguments of Mr. Jeffrey on this point it is my view that the position of the Union should prevail. While the manner in which the parties have set out the arrangements for employees working a Compressed Work Week is not necessarily a model of clarity, an agreement signed pursuant to the template Memorandum of Agreement clearly would be part of the collective agreement with the same stature as the other provisions of the collective agreement. The parties' have set out a potential subset of terms of conditions of employment applicable to those employees working a Compressed Work Week. Whether that subset of terms is set out a Letter of Understanding at the back of the agreement or pursuant to an agreed to template Memorandum of 19 Agreement there would seem to be a mutual intent that those provisions are enforceable and applicable as if part of the main body of the collective agreement. The wording of Article 12.16 clearly suggests that the parties, if they so agree, may enter into a compressed work week agreement under the umbrella of the collective agreement. That provision goes on to stipulate that any agreed to arrangements should by negotiated in accordance with the outlined agreed to template. Accordingly, a Compressed Work Week agreement negotiated in accordance with the provisions of the template Memorandum of Agreement, and as such would include Article 3.01, would fully apply to the relevant group of employees andthose provisions are not necessarily subordinate to the other provisions of the collective agreement. Nor should they have to be interpreted in a manner necessarily consistent with another provision of the collective agreement. Article 3.01 does not have to be necessarily interpreted to be consistent with Article 13.01. I would add, given the parties were setting up a model for the particular set of rules applicable to those employees who worked a compressed work week, 20 the fact that a different definition of overtime should apply to those employees should not be viewed as that surprising a development. In conclusion, therefore, for the reasons set out above, that part of grievance 2008-0626-0028 is upheld. It is my determination that if the parties reach agreement on a Compressed Work Week agreement, arrived at in accordance with the provisions of the template Memorandum of Agreement, the wording of Article 3.01 would dictate that an employee is entitled to overtime for all hours worked on what would normally be a scheduled day off for the employee. This Award issued in Mississauga this 31st day of July J3P Brian P. Sheehan 21