HomeMy WebLinkAboutUnion 20-05-26IN THE MATTER OF AN ARBITRATION
BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES
UNION, LOCAL 329
(the “Union”)
and
WAYPOINT CENTRE FOR MENTAL HEALTH CARE
(the “Hospital”)
POLICY GRIEVANCE 2020-0329-0001
SOLE ARBITRATOR: John Stout
APPEARANCES:
For the Company:
Andrew Zabrovsky – Hicks Morley Hamilton Stewart Storie LLP
John Kytayko
Lucy Woo – Hicks Morley
For the Union:
Mae Jane Nam – Ryder Wright Blair & Holmes LLP
Pete Sheehan
HEARING HELD BY VIDEOCONFERENCE ON MAY 12, 2020.
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AWARD
INTRODUCTION
[1] This matter concerns a grievance (#2020-0329-0001) filed by the Union on
January 28, 2020 alleging that the Hospital violated the Collective Agreement when they
advised the Union that they would be altering the way they paid overtime to full-time
employees.
[2] The Union asserts that the Collective Agreement language, found in Article 25,
requires that overtime for full-time employees be calculated and paid on all hours that
were worked outside of their scheduled work hours, regardless of whether those
scheduled hours were actually worked. The Union argues that a long standing practice
supports this interpretation. In the alternative, The Union argues that the doctrine of
estoppel applies to restrict the Hospital’s ability to rely on the language in the Collective
Agreement.
[3] The Hospital acknowledges the long standing practice that applied only to full-
time employees. The part-time employees, who are also governed by the same Collective
Agreement language, are paid overtime based on hours actually worked. The Hospital
submits that the Collective Agreement language must be uniformly applied and the proper
interpretation of Article 25.02.1 (a) is to calculate and pay overtime based on actual hours
worked beyond thresholds referenced in Article 25.01.
[4] The matter proceeded to a hearing on May 12, 2020. The parties initially agreed
that the hearing could be conducted by teleconference. Subsequently, on May 7, 2020, it
was agreed that the matter could be heard by Zoom videoconference. There is no dispute
that I have jurisdiction to hear and decide the matter. The parties also agreed to proceed
by an “Agreed Statement of Facts” and have me provide an interpretation of the Collective
Agreement language without the aid of extrinsic evidence. It is agreed that I am to remain
seized regardless of my interpretation.
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BACKGROUND FACTS
[5] The Agreed Statement of Facts provides the factual background of the dispute.
AGREED STATEMENT OF FACTS
The Parties
1. The Ontario Public Service Employees Union, Local 329 (the “Union”) and
Waypoint Centre for Mental Health Care (the “Hospital”) are parties to a
collective agreement which expires on March 31, 2022. A copy of the Collective
Agreement is appended hereto at Tab 1.
2. On or about December 5, 2019, Terry McMahon, Vice President Human
Resources & Organizational Development for the Hospital, and Jonathan
Kytayko, Human Resources Manager, met with Pete Sheehan, Union
President, to discuss the Hospital’s interpretation and practice around overtime
pay for full-time employees. At that meeting, Mr. McMahon provided Mr.
Sheehan with a memorandum which outlined the Hospital’s position around
overtime pay, and which provided the Union notice that, effective April 1, 2020,
the Hospital would be moving to what it believes to be a strict interpretation of
the collective agreement. A copy of that memorandum is appended hereto at
Tab 2.
3. More particularly, at that meeting the Hospital informed the Union that, effective
April 1, 2020, overtime pay would be paid based only on hours actually worked.
4. It had been a longstanding practice that the Hospital had, to that point, been
paying full-time employees at an overtime rate for hours that were worked
outside of all scheduled or paid (such as paid vacation) hours, even if an
employee did not actually work all of their scheduled hours.
5. In accordance with Article 26 of the Collective Agreement, the Hospital and the
Union have implemented a compressed work week for most clinical staff. The
compressed work week is administered in accordance with the model
agreement set out under Article 26.
6. The following example illustrates how this change could affect how overtime is
paid out for full-time employees:
A typical clinical full-time employee would be scheduled to work
a compressed work schedule of 80 hours over a two-week
period, with a mixture of 12-hour and 8-hour shifts. During a 12-
hour shift, the employee would be paid for 11.25 hours, and
would receive 45 minutes of unpaid break time. During an 8-
hour shift the employee would be paid for 7.5 hours and would
receive 30 minutes of unpaid break time.
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A typical schedule for such an employee may be as follows:
Week 1: MONDAY 12 hours
THURSDAY 12 hours
FRIDAY 12 hours
Week 2: TUESDAY 12 hours
WEDNESDAY 12 hours
SATURDAY 12 hours
SUNDAY 8 hours
Example 1 – Current Practice:
Employee X is scheduled to work the shifts noted above. She
works all of her scheduled shifts, except for the Thursday shift
in Week 1, as she leaves her shift after 6 hours due to illness.
Employee X also picks up an additional 12-hour shift on the
Saturday of Week 1.
Under the current practice, the entirety of the additional 12-hour
shift would be considered overtime. The overtime entitlement is
not affected by the employee having gone home early due to
illness.
Example 2 – Hospital’s Interpretation:
Employee X is scheduled to work the shifts noted above. She
works all of her scheduled shifts, except for the Thursday shift
in Week 1, as she leaves her shift after 6 hours due to illness.
Employee X also picks up an additional 12-hour shift on the
Saturday of Week 1.
Under the Hospital’s interpretation of the collective agreement,
the first 6 hours of the extra Saturday shift would be paid at
straight time, and the remaining 6 hours would be paid out at a
rate of time-and-one-half.
7. The Hospital’s practice for part-time employees is to pay overtime based on
hours actually worked, as opposed to hours scheduled. Overtime for part-time
employees will be paid out if an employee works in excess of 8 hours in a day
(12 hours if an extended tour) or 80 hours in a two-week period.
8. In that memorandum, the Hospital also identified that the Union would likely
wish to grieve this change, and expressed an intention to have this matter
expedited through the grievance procedure so that the matter could be
addressed in a timely fashion.
9. The Union filed grievance no. 2020-0329-0001 (the “Grievance”) on January
28, 2020, objecting to the Hospital’s intended change to its approach to
overtime pay. A copy of the grievance is appended hereto at Tab 3.
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10. The Employer provided a Step 2 Response to the Grievance on February 5,
2020 appended at Tab 4.
11. The Union takes the position at arbitration that the Hospital’s interpretation of
the collective agreement is incorrect, and that, consistent with the Parties long
standing practice of interpreting the overtime provisions, the collective
agreement requires that, for full-time employees, overtime be calculated and
paid on hours that were worked outside of scheduled hours, regardless of
whether the scheduled hours were actually worked.
12. In order to minimize disruption to the workplace, the Hospital has agreed to
delay the implementation of its new overtime practice until the Grievance is
resolved or decided through grievance arbitration.
13. The parties have agreed that this matter is properly before Arbitrator John
Stout, and the Hospital has waived any objections it may have had to the
timeliness or prematurity of the Grievance.
14. At this stage of the proceedings, the parties have agreed that the sole issue
before Arbitrator Stout is to interpret the language of the collective agreement
to determine whether the language of the collective agreement, on its face,
permits the Hospital to calculate overtime hours based only on hours worked,
or whether overtime must be calculated based on hours outside of a full-time
employee’s scheduled hours.
15. At this juncture, the parties will not be relying on any extrinsic evidence or
evidence of past practice to aide in the interpretive exercise. However, the
Union reserves the right to argue that, if the Hospital’s interpretation of the
collective agreement is accepted, the Hospital is estopped from altering the
manner in which it calculates and pays overtime on account of past practice.
The parties agree that the Union will inform the Hospital of its intention to raise
any such estoppel argument within two (2) weeks of receiving Mr. Stout’s
decision on the interpretation issue.
16. The Hospital takes the position that it has previously provided the Union with
sufficient notice to end any such estoppel, and reserves the right to call
evidence of same depending on the outcome of the interpretation issue.
17. The parties have agreed to have the interpretation issue heard by way of
teleconference on May 12, 2020, with this Agreed Statement of Facts and the
attached documentation being the sole evidence before Arbitrator Stout.
18. This Agreed Statement of Facts does not in any way restrict either party’s right
to call viva voce evidence and/or to introduce additional documentary evidence
in the event that the Union intends to argue that the Hospital is estopped from
implementing its proposed changes to the overtime practice.
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THE COLLECTIVE AGREEMENT PROVISIONS
[6] The relevant provisions of the Collective Agreement are set out below:
ARTICLE 6 - MANAGEMENT RIGHTS
6.01 The Union recognizes that the management of the operations and the direction
of the employees are fixed exclusively with the Hospital and shall remain solely
with the Hospital and without restricting the generality of the foregoing it is the
exclusive function of the Hospital to:
…
(d) determine all work schedules, the kind and location of equipment to be
used, methods to be used, the location and number of employees required
from time to time, the services to be performed, the standards of
performance of all employees, work assignments, the hours of work and
all other rights and responsibilities of management not specifically
modified elsewhere in this Agreement;
ARTICLE 18 - EMPLOYEE DEFINITIONS
18.01 Definitions
Whenever the feminine pronoun is used in this Agreement, it includes the
masculine pronoun and vice versa where the context so requires. Where the
singular is used, it may also be deemed to mean plural and vice versa.
18.02 Full Time
Full-time employees are employees engaged to fill a permanent position and
regularly working the normal or standard work week averaged over a
biweekly pay period.
18.03 Part Time
A Part-time employee is an employee who is regularly scheduled not more
than 24 hours per week and who makes a commitment to the Hospital to be
available for work on a predetermined basis as required by the Hospital. On
a schedule by schedule basis, part-time employees may make themselves
available to be prescheduled beyond twenty-four (24) hours up to and
including thirty-seven and a half (37.5) hours per week as required by the
Hospital. The Hospital shall endeavor to pre-schedule staff for hours
consistent with the standard or extended work day (as defined in Article
25.01) subject to operational needs. Part-time (PT) employees are not
guaranteed a specific number of shifts per pay period or per scheduling
period. Prior to the utilization of Casual staff, Part- time employees will be
given the option of being scheduled for additional shifts over and above their
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normal commitment in the event of illnesses, vacations, emergencies and
other periods of staff shortages.
18.04 Casual
A Casual employee is defined as an employee whose work is not normally
scheduled on a predetermined basis but who may be prescheduled or called
in on a relief basis only to fill in for illness, vacations, emergencies and other
periods of staff shortages once it has been determined that no Part-time
employees with the requisite qualifications and ability to perform the job have
agreed to work the required number of shifts available. Once a Casual
employee has been scheduled or called in under these provisions a Part.-
time employee may not displace them. Casual employees who have not
made themselves available for a three (3) month calendar period may be
terminated from employment from the Hospital. All articles of this agreement
that refer to Part Time employees shall also cover casual employees.
ARTICLE 25 - HOURS OF WORK AND OVERTIME
25.01 (a) Hours of Work
The following provision designating regular hours on a daily shift and
regular daily shifts over the schedule determined by the Hospital shall
not be construed to be a guarantee of the hours of work to be performed
on each shift or during each shift schedule.
Subject to the development of a compressed work week agreement
(Article 26):
The normal work day shall be composed of seven and one-half (7 1/2)
hours, up to eleven and one quarter (11 1/4) hours, exclusive of
mealtimes and the normal work week shall average thirty-seven and
one-half hours (37 1/2) per week over the scheduling period determined
by the Hospital. It is understood that at the change of shift there will
normally be additional time required for reporting which shall be
considered to be part of the normal daily shift, for a period of up to fifteen
(15) minutes duration. Should the reporting time extend beyond fifteen
(15) minutes, however, the entire period shall be considered overtime for
the purposes of payment under Article 25.03.
(b) While recognizing the operational requirement to preschedule four (4)
hour blocks, the Hospital shall endeavor to pre-schedule staff for hours
consistent with the standard or extended work day (as defined in Article
25.01 (a).
…
25.02 Overtime
25.02.1 Overtime Definition
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(a) Overtime shall be defined as being all hours worked in excess of the
normal or standard work day or in excess of the normal or standard work
week. The overtime rate shall be one-and-one-half (1 ½) times the
regular straight time hourly rate of pay calculated to the nearest half-
hour.
Where the Hospital and the Union agree, subject to the approval of the
Ministry of Labour, other arrangements regarding hours of work may be
entered into between parties on a local level with respect to shifts beyond
the normal standard work day.
(b) In the assignment of overtime, the Hospital agrees to develop methods
of distributing overtime that are fair and equitable after having ensured
that all its operational requirements are met. Straight time hours will be
offered to Part-time and casual staff before full-time employees shall be
offered overtime. Full-time employees shall be offered overtime prior to
the offer of overtime to the part-time or casual employees.
DECISION
[7] This is collective agreement interpretation case and the parties have agreed that
they will not be relying on any extrinsic evidence or evidence of past practice to aide in
the interpretive exercise. The parties have also agreed that the sole issue before me is to
interpret the language of the Collective Agreement to determine whether the language,
on its face, permits the Hospital to calculate overtime hours based only on hours worked,
or whether overtime must be calculated based on hours outside of a full-time employee’s
scheduled hours.
[8] The general principles of Collective Agreement interpretation are well established
in the arbitral jurisprudence. Arbitrator Surdykowski provides a useful summary of the
fundamental principles of interpretation in Cavendish Appetizers and UFCW Local 175 &
633 2019 CanLII 53759:
In the Bruce Power LP v Society of Energy Professionals, 2017 CanLII 94612 (ON
LA) (a decision cited by the Union), I wrote in paragraph 37 that:
37. In Waterloo Region Record v. Unifor Local 87-M, 2014 CanLII 59675
(ONLA) Arbitrator Hayes cited Arbitrator Burkett’s decision in Air Canada v. ACPA,
[2012] O.L.A.A. No. 64 (which in turn cited the Ontario Court of Appeal’s decision in
Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59 (CanLII), 85 OR
(3d) 616; 279 DLR (4th) 201) to make the point that an arbitrator who is tasked with
interpreting a collective agreement is more than a linguistic technician and must
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interpret collective agreement language both within the context of the agreement
read as a whole, and within the broader context in which the language in issue was
negotiated. That is, the true meaning of a collective agreement provisions can only
be properly determined by a full contextual analysis of the words used, and that
extrinsic evidence of context is admissible as an aid to interpretation even in the
absence of an assertion of ambiguity.
I went on to explain in paragraphs 38-42 that the Supreme Court of Canada’s decision
in Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633, 2014 SCC 53
(CanLII), particularly paragraphs 46-50 and 55-60 of the decision of Rothstein J.
(writing for the unanimous Court) are instructive regarding the appropriate approach
to contract interpretation; namely, (to borrow from Rothstein J.) a practical, common
sense approach to the contract considered as a whole not dominated by technical
rules of construction, with due regard to the context within which the contract was
made. The clear message from the Supreme Court of Canada is that the words of the
contract must be given their plain and ordinary meaning read in the context of both
the contract as a whole and in the objective circumstantial context which was or ought
reasonably have been known to the parties at the time the contract was made.
However, Sattva also makes it clear (in paragraph 60) that although relevant context
can provide an important interpretive aid, it cannot “overrule” the words agreed to in
the contract. That is, it is the words agreed to by the parties in their collective
agreement that matter most.
I suggested that it seemed to me that Sattva clarified but as a practical matter didn’t
really change much because as always the decision-makers’ task remains what it has
always been: to determine the objective contextual meaning of the contract but with
the words used being the most important consideration. I continued (in paragraph 42)
as follows:
42. It also remains the case that a grievance arbitrator cannot rewrite the parties’
agreement. In the absence of an ambiguity established or resolved by extrinsic
evidence, a grievance arbitrator must give the collective agreement the
contextualized labour relations meaning required by the words used. A grievance
arbitrator cannot imply or ignore words into a collective agreement because he
considers it the fair or “common sense” thing to do, or because of his view of what
the parties must have or could not have intended (when there is no evidence that
that is the case). Much has been written about collective agreement purpose,
fairness, internal anomalies, cost or administrative difficulty, or the effect on the
parties or bargaining unit employees, such considerations can only come into play
to the extent required by the context in which the agreement was negotiated, or when
the grievance arbitrator must choose between equally plausible interpretations of the
collective agreement language in issue (the latter being a situation which rarely
presents). The grievance arbitrator is tasked with determining what the collective
agreement provides or requires, regardless of the effect on either party or on
bargaining unit employees. The employer, the union, and bargaining unit employees
are entitled to no more or less than the benefit of the bargain made in the collective
agreement as described by the words used. It is no part of a grievance arbitrator’s
job to save the parties or either of them from the consequences of the agreement
they have written. It is up to a party that is dissatisfied with the consequences of the
collective agreement bargain as determined by a grievance arbitrator to seek a
collective bargaining solution.
(Italicized emphasis added.)
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In the more recent Ontario Power Generation v Society of Energy Professionals, 2019
CanLII 32848 (ON LA) (a decision cited by the Company), I emphasized (in
paragraphs 35-36) that:
35. The fundamental presumption is that the parties to a collective agreement
purposely chose the language they have used to express their shared intention. That
is, it is presumed that the parties wrote what they meant and meant what they wrote.
36. Therefore, the fundamental rule of collective agreement interpretation is that
the words used must be given their plain and ordinary meaning unless it is clear from
the structure of the provision read in context that a different or special meaning is
intended, or the plain and ordinary meaning result would be illegal or absurd. All
words must be given meaning. Different words are presumed to have different
meanings. Specific provisions prevail over general provisions. Both the words that
are there and the words that are not there may be significant, particularly when the
parties, like the Society and OPG in this case, are sophisticated users of collective
agreement language. Words or phrases cannot be either inferred or ignored unless
it is essential to the purposive operation of the collective agreement.
[9] Both parties agree that the arbitral jurisprudence recognizes two general
categories of overtime provisions which are set out in Arbitrator Kennedy’s award,
Domglas Ltd. v. U.G.C.W., Local 203 (1984) 19 L.A.C. (3d) 156:
It is to be noted, as was argued by counsel for the union, that overtime provisions fall
into two general categories. In one category are the provisions wherein overtime
becomes payable after an employee has worked a specified number of hours in a day
or in a week. The other general category of clause relates to the situation where an
employee is entitled to overtime pay whenever he works hours outside of the periods
of time when he has been scheduled to work.
[10] The parties provided me with a number of other awards, all of which fall within
the two general categories noted above. I note that in each case, the language in the
Collective Agreements was distinguishable from the matter before me.
[11] In both Domglas, supra and Loblaws Groceterias Co. v. U.M.W, Local 902 (1963)
14 L.A.C. 53 (Little), relied upon by the Union, the language at issue referenced payment
of overtime in excess of the “normal scheduled daily working hours” or “scheduled work”.
In both cases the reference to a work schedule in the collective agreement language
drove the result.
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[12] The Hospital relied on a number of awards that included language requiring
payment of overtime after a certain number of hours worked, see for example Brewers’
Warehousing Provincial Board v. Brewers’ Warehousing Co. Ltd. (1957) 8 L.A.C. 35
(McCombs), Sobey’s Ontario Limited and UFCW, Local 175 (1999) CarswellOnt
(Newman), Lake Ontario Portland Cement Co. and C.L.G.W., Local 387 (1959) 10 L.A.C.
95 (Anderson), Community Living Greater Sudbury v. OPSEU, Local 676 (2009)
CarswellOnt 3940 (Albertyn).
[13] The one case that has language similar to the matter before me, is the decision
of Arbitrator Kaplan in Ottawa Hospital v. CUPE, Local 4000 2011 Carswell Ont. 5937,
which I am of the view is also distinguishable and I shall comment upon later in this award.
[14] Turning to the language in this Collective Agreement, which applies to both full-
time and part-time employees, I am of the opinion that the payment of overtime falls within
the category of being payable after an employee has worked a specified number of hours
in a day or in a week. The language in Article 25.02.01 is tied directly back to the language
found in Article 25.01(a), which defines the “normal work day” and the “normal work week”
in terms of certain hours of work. The language in Article 25.02.1, when read in context
and together with article 25.01(a), provides for the payment of overtime when an
employee works in excess of a threshold defined by their normal work day (between 7.5
and 11.25 hours) and a threshold defined by their normal work week (37.5). The language
is also clear that the designated regular hours on a daily shift and regular daily shifts over
the schedule determined by the Hospital shall not be construed to be a guarantee of hours
of work to be performed on each shift or during each shift schedule. This language must
also be read in the context of the employee definitions found at Article 18 and the right of
management to determine all work schedules as provided for in Article 6.01. Therefore,
I find that overtime is to be calculated and paid based on hours worked as the Hospital
suggests, subject to any other provisions provided for in Article 26 relating to the hours of
work per week being averaged.
[15] If it was the intention of the parties to pay overtime for all hours worked outside
the employee’s normally scheduled shift (work day) or shift schedule (work week), then
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they would have stated so in much clearer language. Instead, the overtime language in
Article 25.02.1 is tied to the definition of normal hours of work in a day and a normal work
week in Article 25.01 (a). The language cannot be read in isolation. Management has the
right to determine all work schedules and the designation of regular hours and regular
daily shifts over the schedule determined by the Hospital shall not be construed to be a
guarantee of the hours of work to be performed on each shift or during each shift
schedule. The language applies to all employees, full-time, part-time and casual
employees. The language must be interpreted as a whole and in the context of being
applied consistently to all employees, unless specifically stated otherwise.
[16] I acknowledge that the decision of Arbitrator Kaplan in Ottawa Hospital, supra,
contains somewhat similar language to the matter before me. However, it is also
distinguishable based on the particular language that was before Arbitrator Kaplan.
Arbitrator Kaplan seems to have hung his hat on the fact that the collective agreement in
the matter before him established a “prescheduled workweek” and “prescheduled days
off” for both full-time and part-time employees. In light of the unique language before him,
Arbitrator Kaplan found that “the specific provisions of the collective agreement
establishing prescheduled work weeks and prescheduled days off, and then providing for
overtime for hours worked in excess of those workweeks, requires that overtime be paid
for authorized overtime hours when an employee has been on sick leave during their
regular work week.”
[17] The Collective Agreement before me has language that is different from the
matter before Arbitrator Kaplan. The Collective Agreement in this case provides
management with the right to determine all work schedules and also provides that
designating regular hours on a daily shift and regular daily shifts over the schedule
determined by the Hospital shall not be construed to be a guarantee of hours of work to
be performed on each shift or during each shift schedule. This language must be applied
consistently and uniformly to all employees under this Collective Agreement, unless
otherwise stated.
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[18] Therefore, after carefully considering the parties’ submissions and the language
in the Collective Agreement, I find that the Hospital’s interpretation is correct and must
prevail. As requested by the parties, I remain seized to address any other issue fairly
raised by the grievance but not addressed inn this award including any potential claim of
estoppel.
Dated at Toronto, Ontario this 26th day of May 2020.
John Stout- Arbitrator