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HomeMy WebLinkAboutUnion 21-10-15In the matter of an Arbitration pursuant to the Labour Relations Act, 1995 Between: Ontario Public Service Employees Union, Local 475 Union and Eastern Ontario Regional Laboratory Association (EORLA) Employer Policy Grievance Andrew Tremayne, arbitrator Appearances: Katherine Ferreira for the union Porter Heffernan ofor the employer Hearing held on August 27, 2021 by videoconference Award issued on October 15, 2021 at Ottawa, Ontario 2 Background and Introduction 1. This hearing concerned a dispute between the parties about a Memorandum of Agreement (MOA) that was supposed to resolve a policy grievance. The union filed a fresh grievance alleging that the employer has failed to comply with the MOA, and that grievance is before me. 2. The employer is a non-profit organization that operates licensed hospital- based laboratories across Eastern Ontario. The union represents all paramedical employees of the employer, with the usual exception of employees above the rank of supervisor, employees who are employed in a confidential capacity in matters relating to labour relations, as well as students and interns. 3. Briefly stated, in March 2014, the union filed a grievance alleging that the employer was failing to provide premium pay when the employer asked an employee to work overtime and this resulted in the employee having less than 12 hours’ rest before the start of their next shift. The grievance alleged that this was contrary to Article 17.06(g) of the parties’ Collective Agreement. 4. In April 2014, the parties signed a Memorandum of Agreement to resolve the March 2014 grievance. The MOA says that the employer wants to resolve the grievance by complying with the Collective Agreement, and the text of Article 17.06(g) is set out verbatim. Article 17.06(g) says: Failure to provide a minimum of twelve (12) hours between the end of an employee's scheduled shift and the commencement of such employee's next scheduled shift shall result in premium payment of one and one‐half (1.5) times the employee's regular straight time hourly rate for only those hours which reduce the minimum hour period. Where the minimum period is reduced as a result of an approved change of shift(s) requested by the employee(s), such premium payment shall not apply. 5. In July 2014, the union filed a fresh grievance alleging that the employer was not complying with the MOA. This is the grievance that is before me. 6. The union argues that the parties agreed in the MOA that a premium payment would apply whenever an employee’s shift is extended and this results in less than 12 hours of rest before the start of the employee’s next shift. The only exception is when the employee requests a change in shift. This is how the parties resolved the March 3 2014 grievance, argues the union: by agreeing that the premium payment in Article 17.06(g) applies to this situation. 7. The employer disagrees with the union’s position, arguing that Article 17.06(g) is clear: the premium only applies when the employer fails to provide a minimum of 12 hours rest between the employee’s scheduled shifts (emphasis added). The MOA repeats this language but does not alter it. The premium does not apply when an employee works additional hours before or after their scheduled shift because these hours are not part of the scheduled shift. In the MOA, the employer reaffirmed its commitment to comply with Article 17.06(g) but did not agree to extend its application or alter its meaning. 8. The parties agree that the following issues are to be decided: a. Does the MOA apply to provide an entitlement to premium pay where a Full Time or Regular Part Time Employee is offered and accepts additional hours before or after a previously scheduled shift during the period of twelve (12) hours referenced in the MOA? b. Does the MOA apply to provide an entitlement to premium pay where an employee is mandated by their manager to work additional hours before or after a previously scheduled shift during the period of twelve (12) hours referenced in the MOA? c. Does the MOA apply to provide an entitlement to premium pay where after the posting of the schedule, an employee is offered and accepts an additional, not previously scheduled shift, a portion of which falls within the twelve (12) hours referenced in the MOA? d. If the answer to any of the above questions is yes, does the MOA entitle the employee to premium pay on the hours falling within the period of twelve (12) hours referenced in the MOA, or on an equivalent portion of the employee’s next scheduled shift? Evidence 9. The parties agreed to present the case based on an Agreed Statement of Facts, a copy of which is attached to this award at Schedule “A.” Central to the parties’ dispute is the language in the April 2014 MOA, which was supposed to settle the March 2014 grievance. The text of the MOA is as follows: 4 The above captioned grievances alleges violation of Article 3, Management Rights, Article 17.06 (g) when an employee is requested to work overtime at the end of their scheduled shift and this overtime results in less than 12 hours rest between the end of their shift and the beginning of their next shift. The Association is desirous of resolving the aforementioned grievances by complying with the language of the collective agreement. Failure to provide a minimum of twelve (12) hours between the end of an employee's scheduled shift and the commencement of such employee's next scheduled shift shall result in payment of one and one‐half (1 ½) times the employee's regular straight time hourly rate for only those hours which reduce the minimum hour period. Where the minimum period is reduced as a result of an approved change of shift(s) requested by the employee(s), such premium payment shall not apply. We trust that this resolves the grievance. Submissions of the Parties Union Submissions 10. The union submits that the first paragraph of the MOA is important because the parties identify the situation that led to the grievance and that they wanted to resolve. Specifically, the grievance arose because the employer was not paying the premium “when an employee is requested to work overtime at the end of their scheduled shift and this overtime results in less than 12 hours rest between the end of their shift and the beginning of their next shift.” Then, the parties set out the language from Article 17.06 (g), which I should interpret to mean that the parties intended this language to apply to the situation that led to the grievance. If this were not the parties’ intention, they would not have referenced Article 17.06 (g), argues the union. All of the words in the MOA must have meaning, and by restating the grievance and affirming the language of this Article, the parties are agreeing that this language applies to the situation. 11. The parties also included the second paragraph of Article 17.06 (g) in the MOA, which reads, “where the minimum period is reduced as a result of an approved change of shift(s) requested by the employee(s), such premium payment shall not apply.” This is an exception to the requirement to pay the premium, but it does not apply to the situation that led to the grievance, the union argues. The parties could 5 have made it clear that the premium does not apply to the situation that led to the grievance, but they did not do so. 12. The union further submits that the specific reference to the situation that led to the grievance in the MOA must mean something. If it is just a restatement of the grievance that added nothing, the settlement would be poor labour relations. If Article 17.06 (g) has no application to the grievance, why (the union asks rhetorically) would the parties have reproduced it? The words are there, and I am required to give them meaning, which is that the parties intended that the premium in 17.06 (g) would apply to the situation that gave rise to the grievance. 13. The union argues that Article 17.06 (g) should be compared to Article 17.06 (h), which reads as follows: A minimum period of forty-eight (48) hours shall elapse between the end of work on nights and the resumption of work on days or evenings. Failing this, the employee shall be remunerated at time and one-half (1.5) times the employee's regular straight time hourly rate for only those hours which reduce the minimum hour period. Where the minimum period is reduced as a result of an approved change of shift(s) requested by the employee(s), or where a part-time employee is offered and voluntarily accepts an additional shift, such premium payment shall not apply. (emphasis added) 14. This Article also provides for a premium related to scheduling. The union submits that it is similar to Article 17.06 (g) because it relates to a minimum period between shifts. As with Article 17.06 (g), the second paragraph of Article 17.06 (h) sets out an exception (or, in this case, two exceptions) where the premium is not payable. The union argues that the parties could have included “or where a part-time employee is offered and voluntarily accepts an additional shift” in Article 17.06 (g) or the MOA, but they did not, and this supports the union’s position. 15. Returning to the first paragraph of Article 17.06 (g), the union argues that “scheduled shift” refers to all of the hours that an employee works. In other words, if an employee agrees to work or is directed to work additional hours at the end of their shift, then that is part of their scheduled work. The Collective Agreement does not define “scheduled shift”, but there are references to this term in the Agreement that support the union’s interpretation. 6 16. For example, submits the union, Article 14 of the Collective Agreement includes a template for employees who hold more than one position with the employer. The template refers to “scheduled hours” which is defined to include “FTE and extra available work offered and accepted.” Although Article 17.06 (g) refers to an employee’s “scheduled shift” and not “scheduled hours”, the union argues that this supports its position that if an employee is offered and accepts additional hours, those hours count as part of an employee’s “scheduled” work. 17. Elsewhere in Article 17.06, argues the union, there are references to “a posted time schedule” (17.06(f)), “an employee’s posted schedule” (17.06(m)) and “the posted schedule/rotation” (17.06(o)). The parties used the word “posted” in these sections of the Collective Agreement but not in Article 17.06. This suggests that a “scheduled shift” is different from a “posted schedule”, argues the union. 18. In addition, if Article 17.06(g) only applies to situations where there is less than 12 hours between an employee’s scheduled shifts and an employee who is asked to work additional hours between those shifts does not receive the premium, the employer would have an easy way out of not paying the premium while still getting the benefit of having an employee work with less than 12 hours of rest between shifts. This is an absurd outcome that should not be supported, argues the union. 19. The union relies on the following decisions in support of its position: OPSEU (Gram) v. The Crown in Right of Ontario (Ministry of Correctional Services) GSB No. 1339/84, Lakeridge Health Corporation v. Ontario Nurses' Association, 2012 CanLII 81964 (ON LA), Hôpital Régional de Sudbury Regional Hospital v. C.U.P.E., Local 1623, [2001] O.L.A.A. No. 697, Children's Hospital of Eastern Ontario v. Labourers' International Union of North America, LiUNA Local 3000, 2021 CanLII 11358 (ON LA), S.E.I.U. 20. The union adds that if I determine that the answer is “yes” to any of the first three issues as set out in the Agreed Statement of Facts, it relies on the following cases in support of its position on how premium pay is to be calculated: Local 1 v. St. Michael's Hospital (2012), 215 LAC (4th) 366 (Schmidt), and Saint-Goban Abrasives v. C.E.P., Local 12 (2005), 140 LAC (4th) 343 (Dissanayake). Employer’s Submissions 21. The employer argues that because the MOA adopts the language of the Collective Agreement and recommits the parties to comply with it, the existence of the MOA itself has no impact on my task. That is, I am to interpret the Collective 7 Agreement and the MOA given the plain and ordinary meaning of the words used and apply those words in the context of the documents in which they appear. 22. The Collective Agreement includes management rights language (Article 3.01), which provides that the employer determines, among other things, hours of work and work assignments. The parties have also agreed to standard language stating that an arbitrator is not authorized to alter, modify, add to or amend any part of the Collective Agreement (Article 9.11). The employer submits that the union’s interpretation of Article 17.06 (g) would require me to alter the language in the Collective Agreement, which I am not permitted to do. 23. The plain and ordinary meaning of the words in Article 17.06 (g) is that the entitlement to premium pay only arises when there are less than 12 hours of rest between scheduled shifts. The entitlement does not arise when an employee works additional hours before or after their scheduled shift or accepts additional hours, because these additional hours or shifts do not reduce the 12 hour rest period between scheduled shifts for the purposes of Article 17.06 (g), argues the employer. There is an important distinction in the Collective Agreement and in the relevant caselaw between scheduled hours and hours worked, and the union’s argument ignores this distinction. 24. The wording of the MOA is clear, the employer submits. A grievance was filed, and the employer responded with the language of the Collective Agreement and by agreeing to recommit itself to that language. The MOA itself adds nothing to the meaning of the language that is already in the Collective Agreement. The MOA does not interpret that language, clarify the application, or add to the words of Article 17.06 (g). It was open to the parties to use the MOA to clarify their understanding of that Article or set out how it applies to the concern raised in the grievance. Specifically, they could have stated that hours worked before or after a scheduled shift would attract the premium, but they did not do so. The union is arguing that I should read something into the fact that the MOA restates the grievance, but this was simply how the parties chose to set out the issue. The same principles of interpretation apply to the MOA and the Collective Agreement, and I cannot infer words that are not there. The MOA says that the parties renew their commitment to comply with Article 17.06 (g), unmodified and as it appears in the Collective Agreement, and so my task is to interpret that language as it appears in the Collective Agreement. 25. Turning to Article 17.06 as a whole, the employer notes that it is titled “Scheduling” and begins with the statement “all schedules for full-time and part-time employees shall be prepared and posted with:” and then lists a series of provisions (a) 8 to (o). Some of these provisions list entitlements that are based on time worked, such as (d) which refers to “weekends worked in excess of (etc.)” and (h) which refers to a period of time between “the end of work on nights and the resumption of work (etc.)” The words that the parties used must be given meaning, and their choice words in this provision is different from the words they have chosen in 17.06 (g). 26. Replying to the union’s argument that the parties could have included the exception found in Article 17.06 (h) “or where a part-time employee is offered and voluntarily accepts an additional shift” but did not, the employer submits that the absence of this exception in Article 17.06 (g) does not support the union's position. This is because Article 17.07 (h) does not refer to an employee’s “scheduled shift” but rather to “the end of work . . . and the resumption of work.” If an employee was offered and accepted additional hours or an additional shift, this would reduce the time between “the end of work. . . and the resumption of work” so the exception is necessary. Article 17.06 (g) refers only to an employee’s “scheduled shift” so the exception is not necessary. The contrast between 17.06 (g) and (h) supports the employer’s position, it argues, not the union’s. 27. Turning to the template set out in Article 14 of the Collective Agreement, which refers to “scheduled hours” and which is defined to include “FTE and extra available work offered and accepted”, the employer notes that this Article does not relate to scheduling but to the treatment of employees who hold more than one position. These are two very different matters, the employer argues. The definition is part of Article 14, and it appears nowhere else in the Collective Agreement. This shows that the parties intended to expand the definition of “scheduled hours” only where an employee holds more than one position, which is a unique situation. Here, the parties wanted to ensure that an employee who is permitted to hold more than one position must work all hours associated with their first position. If the parties had intended that “scheduled hours” would include extra hours or shifts offered and accepted throughout the Collective Agreement, they would not have added a special definition that applies only to Article 14. 28. The employer submits that the parties are sophisticated labour relations partners who are also presumed to negotiate their Collective Agreement in light of the relevant arbitral jurisprudence. There has been extensive litigation around the application of premium pay in the health care sector, and arbitrators have consistently found that language that sets out an entitlement to premium pay and refers to scheduled shifts or scheduled hours does not apply when shifts or hours are offered and accepted. The employer refers to the following cases as standing for the proposition that when a nurse agrees to work an additional shift or tour, these hours or shifts do not form part of their posted schedule: Ottawa Civic Hospital and ONA, 1998 CarswellOnt 7516, Espanola General Hospital and ONA, 2009 CarswellOnt 10330, Guelph General Hospital and 9 ONA, 2010 CarswellOnt 11572, Brant Community Healthcare System and ONA, 2009 CarswellOnt 10341, Brockville General Hospital and ONA Local 67, 2020 CarswellOnt 14887, Peterborough Regional Health Centre and ONA, 2012 CarswellOnt 13684. 29. For example, in Guelph General Hospital and ONA, the issue was whether nurses who work additional tours that are not part of their original schedule become entitled to premium pay for any scheduled tours. The collective agreement stated that a nurse would not be “required to work more than three (3) consecutive days without days off” and that a nurse who was would be paid a premium for every consecutive day worked following the third day. The collective agreement also required “a minimum of twelve (12) hours scheduled off between tours of duty. . . except by mutual consent” (emphasis added). A premium payment applied “should the nurse work with less than twelve (12) hours off between tours . . . without mutual consent.” 30. The arbitrator noted that the caselaw distinguished between the phrase “required to work” and the term “scheduled” shifts. “The former phrase has generally been held to apply to all tours a nurse is offered and agrees to work, including additional tours, and ‘scheduled’ has usually been held to apply only to hours that have been scheduled for the nurse as part of the normal scheduling process.” (paragraph 30). The arbitrator found no entitlement to premium pay when a nurse was scheduled with the requisite number of hours off between tours but was later offered and agreed to work an additional tour, even when this reduced the time off between tours below the minimum. 31. In Brockville General Hospital and ONA Local 67, the arbitrator examined collective agreement scheduling regulations that required employees to have two days off following three consecutive tours. Failure to abide by this resulted in premium pay. The grievor was scheduled for and worked three consecutive tours over three days and was offered and accepted another tour on the fourth day. The arbitrator noted that based on other parts of the local and central collective agreement, it was clear that the parties understood the difference between “tours scheduled” and “tours worked”, and where they intended “tours worked” to attract premium pay, the collective agreement expressly said this. The arbitrator found that the grievor’s agreement to work the additional tour did not attract premium pay because it was not a scheduled fourth tour and dismissed the grievance. 32. In Peterborough Regional Health Centre and ONA, the issue was whether an employee who worked consecutive weekends solely due to accepting an offer from the employer to work an available weekend shift was entitled to premium pay. The collective agreement provided for premium pay “if an employee is scheduled by the Health Centre to work two or more week-ends.” The arbitrator rejected the union’s argument that the 10 act of scheduling included the employer offering an available shift to an employee, and that once an employee accepts that offer, the employee is “scheduled”. 33. To summarize, argues the employer, arbitrators have generally concluded that there is a material difference between scheduled hours and hours worked when those terms are used in collective agreements. Analysis and Decision 34. The focus of this analysis is the parties’ Collective Agreement. The words used should be given their plain and ordinary meaning, read and applied in the context of the entire Collective Agreement. The parties are presumed to say what they mean and mean what they say. The arbitrator’s task is to determine what the Collective Agreement requires the parties to do and provide, regardless of whether the outcome is perceived to be fair. These comments apply equally to the MOA, which the parties believed had resolved the first grievance about Article 17.06 (g) but instead led to the grievance before me. 35. In this case, the plain and ordinary meaning of the MOA is that the employer wants to resolve the grievance “by complying with the existing language of the collective agreement”, specifically Article 17.06 (g), which is then reproduced verbatim in the MOA. The phrase “we trust that this resolves the grievance” appears twice at the end of the MOA, first at the end of the second paragraph of 17.06 (g) and then in a separate line just above the date. The MOA does not clarify or explain precisely what compliance with the existing language of the collective agreement means, in practice, when that language is applied to the issue that the MOA was intended to resolve, however. It simply directs the reader back to that existing language without adding anything more to the analysis. 36. There are essentially three parts to the MOA: a restatement of the issue raised in the grievance, a statement that the Association wants to resolve the grievance by complying with the language of the Collective Agreement, and the exact words of Article 17.06 (g). The union argues that by setting these three elements side by side in an MOA, the parties intended that Article 17.06 (g) would apply to the issue raised in the grievance. However, the parties did not say this in the MOA, so it is difficult to conclude that this was their intention. 37. The parties could have said, “when an employee is requested to work overtime at the end of their scheduled shift, and this overtime results in less than 12 hours rest between the end of their shift and the beginning of their next shift, Article 17.06 (g) applies” or any number of similar formulations that would have indicated this to be their intention. Instead, the parties simply set out the three elements described above, side by 11 side, without saying why they had done so, either by adding language linking or connecting them, or otherwise. To accept the union’s position, I would have to add to or modify the MOA and go beyond its plain and ordinary meaning. As it is written, the plain and ordinary meaning of the MOA points straight back to the Collective Agreement without any additional guidance or direction. 38. It is important to interpret Article 17.06 (g) in the context of the parties’ Collective Agreement. Article 17 is titled “Hours of Work and Overtime” and Article 17.06 is subtitled “Scheduling”. The introductory phrase below the subtitle says, “All schedules for full-time and part-time employees shall be prepared and posted with:” which is followed by Articles 17.06 (a) to (o). It stands to reason, based on the management rights language in the parties’ Collective Agreement and common practice, that the employer is the party that prepares and posts all schedules for full-time and part- time employees. Article 17.06 is all about scheduling and how the employer must go about doing it. This is supported by the repeated mentions of “the Association will schedule. . .” and “the Association will endeavour to develop schedules. . .” throughout Article 17.06. 39. Article 17.06 (g) begins, “Failure to provide a minimum of. . .” so it is important to ask who has the obligation “to provide” and how they are expected to provide it. The who is straightforward: it is the employer, because the employer prepares and posts all schedules, and Article 17.06 is all about schedules. The most appropriate dictionary definitions of “to provide” in this context are “to make due preparation” and “supply or furnish”. So, the employer is required to make due preparation for and supply a schedule that provides a minimum of. . .(etc.) As a result, I find that Article 17.06 (g) is about what happens if the employer fails to provide something when it prepares and posts all schedules for full-time and part-time employees. 40. This interpretation is further supported by what comes next, namely the description of what the employer is supposed to provide: “a minimum of twelve (12) hours between the end of an employee's scheduled shift and the commencement of such employee's next scheduled shift” (emphasis added). The plain and obvious meaning of “scheduled shift” in the context of Article 17.06, which is all about scheduling and how the employer must go about doing it, is that it refers to the schedule that the employer is required to prepare and post as part of the scheduling process. In other words, Article 17.06 (g) is about something that the employer is supposed to do when it makes due preparation for and supplies the schedules for full-time and part-time employees, and what happens if it fails to do so. 12 41. The balance of the first paragraph of Article 17.06 (g) describes the premium payment that applies if the employer fails to do what it is supposed to do when it prepares and posts all schedules for full-time and part-time employees. 42. The union argues that there is language elsewhere in Article 17.06 that supports its position, specifically Article 17.06 (h): A minimum period of forty-eight (48) hours shall elapse between the end of work on nights and the resumption of work on days or evenings. Failing this, the employee shall be remunerated at time and one-half (1.5) times the employee's regular straight time hourly rate for only those hours which reduce the minimum hour period. Where the minimum period is reduced as a result of an approved change of shift(s) requested by the employee(s), or where a part-time employee is offered and voluntarily accepts an additional shift, such premium payment shall not apply. 43. The union argues that the parties could have included the exception that appears in the second paragraph of Article 17.06 (h) (“or where a part-time employee is offered and voluntarily accepts an additional shift”) in Article 17.06 (g). By not doing so, the only exception to the premium payment in Article 17.06 (g) is when the minimum 12 hour period is reduced because an employee has requested a change of shift. All other hours or shifts, regardless of how they came to be worked, become part of an employee’s “scheduled shift” for the purposes of 17.06 (g), argues the union. 44. Article 17.06 (h) appears to be focused on limits to the employer’s ability to schedule employees as they transition from working nights to working days or evenings. Those are not the circumstances before me. However, it is helpful to look closely at the language in Article 17.06 (h), because it assists in the interpretation of Article 17.06 (g). Principally, it shows that the parties understood the difference between scheduled hours and hours worked when they negotiated the language in Article 17.06 (g) of their Collective Agreement. 45. The first paragraph of Article 17.06 (h) establishes a 48-hour threshold for premium pay in certain circumstances. This minimum period is measured "between the end of work . . .and the resumption of work." There is no mention of how the hours came to be worked. The end of work could be the end of a scheduled shift or the end of additional hours that are worked after an employee is offered and accepts them. Similarly, the resumption of work could be the start of a scheduled shift or the 13 start of additional hours that are offered and accepted. The measurement is taken between the time that work ends and the time that work resumes. The scope of the first paragraph of Article 17.06(h) is very broad. 46. The second paragraph of Article 17.06 (h) limits the entitlement to premium pay even when the time "between the end of work . . .and the resumption of work" falls below the 48-hour minimum. This paragraph removes from the calculation two reasons why the hours may have been worked: an approved change of shift requested by the employee, and where a part-time employee is offered and voluntarily accepts an additional shift. Hours that came to be worked for these reasons do not "count" when the minimum 48-hour period is measured. The second paragraph of Article 17.06 (h) narrows the scope of the first paragraph. 47. In contrast, the scope of the first paragraph of Article 17.06 (g) is already narrower than the first paragraph of Article 17.06 (h). This is because the minimum period in 17.06 (g) is measured "between the end of an employee's scheduled shift and the commencement of such employee's next scheduled shift." Hours that are worked when an employee is offered and accepts them are already outside the scope of the first paragraph of 17.06 (g) because they are not part of an employee's scheduled shift. There is no need for a separate exemption for these hours in the second paragraph of 17.06 (g) because the plain and ordinary meaning of the first paragraph is already narrow and does not require it. 48. The difference between Article 17.06 (g) and (h) shows that the parties understood the difference between scheduled hours and hours worked when they negotiated this language in their Collective Agreement. As a result, the use of the term "scheduled shift" in Article 17.06 (g) and its absence from 17.06 (h) supports the employer's position. 49. The union also notes that the template set out in Article 14 of the Collective Agreement refers to “scheduled hours” which is defined in that Article to include “FTE and extra available work offered and accepted”. First, this section of Article 14 is not about scheduling. Its purpose is to clarify some of the terms and conditions of work for an employee who holds more than one position. These are unrelated matters operating in different contexts, with different purposes, so the same considerations do not apply. Second, I find that if the parties had intended that this definition would apply throughout their Collective Agreement, they would have defined the term in the “Article 2 – Definitions” section of the Agreement and not just in Article 14, the only place it appears. For these reasons, the language in Article 14 does not support the union’s interpretation of Article 17.06 (g). 14 50. Turning to the decisions cited by the union, I find that overall, they do not support the conclusion that the union asks me to draw about the interpretation of the MOA and the Collective Agreement. 51. In OPSEU (Gram) v. The Crown in Right of Ontario (Ministry of Correctional Services) GSB No. 1339/84, the employer was to avoid scheduling the start of a shift “within 12 hours of the completion of the employee’s previous shift.” The grievor’s previously scheduled regular shift was extended by overtime hours which he agreed to work. A premium applied “if an employee is required to work before twelve (12) hours have elapsed.” Relying on an earlier GSB decision that had survived an application for judicial review, the Board found that all of the hours worked (scheduled shift plus overtime) were the “employee’s previous shift” because earlier decisions had held that “the completion of the employee’s previous shift” related to the actual period of work that had ended and not a “notional point” when the scheduled straight-time ended and overtime began. I find that this decision does not assist the union in the matter before me because the GSB was not required to interpret the term scheduled shift which is the key to understanding Article 17.06 (g). 52. In Lakeridge Health Corporation v. Ontario Nurses' Association, 2012 CanLII 81964 (ON LA), grievance concerned the entitlement to a premium payment for nurses working consecutive weekends. The language in the collective agreement did not specify that the nurse must be “required” or “scheduled” to work, only that the nurse actually works. There were three specific exceptions, all of which concerned personal requests or other arrangements where shifts were changed. The arbitrator found that unless one of the specific exceptions applied, the premium applied to all hours worked, regardless of whether the nurse accepted or volunteered for consecutive weekend work. This decision highlights the difference between an employee being required or scheduled to work on the one hand, and simply working on the other. In contrast, the premium pay entitlement in Article 17.06 (g) is not engaged by simply working. 53. In Hôpital Régional de Sudbury Regional Hospital v. C.U.P.E., Local 1623, [2001] O.L.A.A. No. 697, the grievor agreed to work overtime on a day that she was not scheduled to work. The parties’ local agreement stated that an employee who “is required” to work on a regularly scheduled day off would be paid at double time. The union grieved that the double-time rate should apply. The union argued that the collective agreement provided that all overtime is voluntary, and once an employee agrees to accept a shift, they are required to work it. The employer argued that because the grievor could refuse the overtime but chose to work, she was not required to work. It was a request, not a requirement, and the premium should only be paid when the employer exercised a coercive requirement and not simply a request. The 15 arbitrator found that in the context of the parties’ collective agreement, the use of the word “require” in that specific provision did not require a coercive element and that “require” was more on the nature of a request or need. The word “required” does not appear in the premium pay language of Article 17.06 (g). 54. In Children's Hospital of Eastern Ontario v. Labourers' International Union of North America, LiUNA Local 3000, the collective agreement provided that if employees were not notified of changes to their schedule within a certain period of time before the change, a premium applied to all hours worked in an employee’s next shift. For full-time employees, this schedule was referred to as the “posted work schedule” and for part-time employees, the “scheduled shift”. A schedule covering a six-week period would be developed, printed, and filed. The same information was entered into an electronic system, and was visible to employees four weeks in advance. Changes would still be made to the schedule that appeared on the electronic system: employees might exchange shifts, be offered and accept a shift for which they were not originally scheduled, or a shift might be cancelled. The original schedule that was printed and filed was not changed, and employees never saw it. 55. The union argued that although the term “posted schedule” was not defined in the collective agreement, it must refer to the electronic system, so any changes made to that schedule without requisite notice should trigger the premium. Similarly, “scheduled shift” must also refer to the electronic system, because it was the only schedule that employees saw. The employer argued that both terms referred to the original schedule that was developed for the six week period, and that the premium did not apply to changes that were made after that. 56. The arbitrator found that the term “posted schedule” referred to the original schedule that was developed. Elsewhere in the collective agreement, the employer was required to post a schedule at a specific point in time, and certain scheduling- related actions took place after that point in time. None of these provisions would make sense if the electronic schedule, which continued to change, was the posted schedule. However, the parties chose different language in the same article to describe how the premium would apply to part-time employees, where they did not use the word “posted” but rather “scheduled shift”. The arbitrator noted that the parties had use the terms “shifts”, “scheduled shifts”, and “additional shifts”, sometimes in the same article of the collective agreement, and also in a Letter of Understanding (LOU), where, noted the arbitrator, it was clear that the parties had intended the term “scheduled shift” to apply to all work for which part-time employees indicated their availability, either before or after the schedule has been posted. 16 57. While this decision may appear to be of some assistance in interpreting Article 17.06 (g) because similar words are used, the arbitrator’s reasoning was based on evidence that the parties had specifically turned their minds to the meaning of “scheduled shift” in the context of their workplace and had set out this understanding elsewhere, including in a separate but related document (the LOU). 58. In all but the last of these decisions cited by the union, the collective agreement language that achieved the result desired by the union in the matter before me is different from the language in Article 17.06 (g). In the CHEO decision, the parties themselves provided a clear evidentiary path to the outcome that the union is seeking by showing that they had turned their minds to the interpretation of “scheduled shift”, which is not the case in the matter before me. 59. Returning to Article 17.06 (g), for the reasons set out above, I have concluded that the interpretation of the plain and obvious meaning of “scheduled shift” begins with understanding the context of Article 17.06. The language in this Article is all about scheduling and how the employer must go about doing it, so “an employee’s scheduled shift” refers to the schedule that the employer is required to prepare and post at the start of the scheduling process. In other words, Article 17.06 (g) is about something that the employer is supposed to do when it makes due preparation for and supplies the schedules for full-time and part-time employees, and what happens if it fails to do so. The decisions cited by both parties support this interpretation. If the parties had chosen to use the words worked or required when they decided what shifts (or hours) would engage the entitlement to premium pay under Article 17.06 (g), this would have led to a different outcome. 60. As a result, the issues set out above by the parties are decided as follows: 61. Does the MOA apply to provide an entitlement to premium pay where a Full Time or Regular Part Time Employee is offered and accepts additional hours before or after a previously scheduled shift during the period of twelve (12) hours referenced in the MOA? Answer: No. 62. Does the MOA apply to provide an entitlement to premium pay where an employee is mandated by their manager to work additional hours before or after a previously scheduled shift during the period of twelve (12) hours referenced in the MOA? Answer: No. 17 63. Does the MOA apply to provide an entitlement to premium pay where after the posting of the schedule, an employee is offered and accepts an additional, not previously scheduled shift, a portion of which falls within the twelve (12) hours referenced in the MOA? Answer: No. 64. If the answer to any of the above questions is yes, does the MOA entitle the employee to premium pay on the hours falling within the period of twelve (12) hours referenced in the MOA, or on an equivalent portion of the employee's next scheduled shift? Answer: It is not necessary to address this question because the first three questions are answered in the negative. Summary and Disposition 65. I have carefully reviewed the evidence and considered the parties’ submissions, and for all of the reasons set out above, I find that neither the MOA nor Article 17.06 (g) provides an entitlement to premium pay in any of the three scenarios set out above. As a result, the grievance is dismissed. Signed at Ottawa, Ontario on October 15, 2021 Andrew Tremayne 18 Schedule “A” AGREED STATEMENT OF FACT WHEREAS the Union filed the Grievance alleging that the Employer had breached the Collective Agreement by failing to implement a settlement reached in Grievance No. 2014‐0475‐0021; AND WHEREAS the Employer denied the Grievance; AND WHEREAS the Parties wish to proceed with a hearing of the Grievance on the basis of certain agreed facts; NOW THEREFORE the Parties agree to the following facts, solely for the purpose of this proceeding. These facts are agreed to without prejudice to any position(s) the Parties may take in any other proceedings: 1. The Parties agree that Arbitrator Andrew Tremayne has jurisdiction in this matter and there are no preliminary issues in dispute. 2. The Employer and the Union are parties to a Collective Agreement, expiring March 31, 2022, a copy of which is attached as Exhibit 1. Although the Grievance was filed under the previous Collective Agreement, the parties are agreed that the Arbitrator may proceed to determine this Grievance under the present Collective Agreement between the Parties. 3. Article 17.06(g) of the Collective Agreement reads as follows: 17.06 (g) Failure to provide a minimum of twelve (12) hours between the end of an employee's scheduled shift and the commencement of such employee's next scheduled shift shall result in premium payment of one and one‐half (1.5) times the employee's regular straight time hourly rate for only those hours which reduce the minimum hour period. Where the minimum period is reduced as a result of an approved change of shift(s) requested by the employee(s), such premium payment shall not apply. 4. The Union filed a grievance dated March 19, 2014 (Grievance No. 2014‐0475‐0021) in which it alleged: "The Collective Agreement has been violated under but not limited to Article 3 Management Rights, Article 17.06(g) and any and all applicable legislation in that the Association fails to compensate Members with premium pay when the Association requests that a Member work overtime at the end of their scheduled shift and this Overtime results in less than 12 hours rest between the end of their shift and the beginning of their next shift." Grievance No. 2014‐0475‐0021 is attached as Exhibit 2. 5. On or about April 8, 2014, the Parties signed a Memorandum of Agreement in order to resolve Grievance No. 2014‐0475‐0021 (the “MOA”). A copy of the Memorandum of Agreement is 19 attached as Exhibit 3. The text of the Memorandum of Agreement reads as follows: The above captioned grievances alleges violation of Article 3, Management Rights, Article 17.06 (g) when an employee is requested to work overtime at the end of their scheduled shift and this overtime results in less than 12 hours rest between the end of their shift and the beginning of their next shift. The Association is desirous of resolving the aforementioned grievances by complying with the language of the collective agreement. Failure to provide a minimum of twelve (12) hours between the end of an employee's scheduled shift and the commencement of such employee's next scheduled shift shall result in payment of one and one‐half (1 ½) times the employee's regular straight time hourly rate for only those hours which reduce the minimum hour period. Where the minimum period is reduced as a result of an approved change of shift(s) requested by the employee(s), such premium payment shall not apply. We trust that this resolves the grievance. 6. The Grievance in issue in this proceeding, attached as Exhibit 4, alleges that the Employer "has failed to comply with the MOA 2014‐0475‐0021. The MOA was signed on April 8, 2014, since this time the Association has failed to implement the settlement laid out in the above MOA. The union on numerous occasions has informed the ESP department, and various timekeepers of the MOA. Members continue to be disadvantaged by the Associations failure to implement the MOA." 7. In addition to the Grievance, since the signing of the MOA, the Union has alleged in communications to the Employer via email and otherwise, that the MOA is not being implemented properly. The Union has also filed various individual grievances, some of which have been resolved on a without prejudice or precedent basis, and some of which remain outstanding. These Grievances are not before Arbitrator Tremayne. 8. The Parties continue to disagree about the interpretation of the words used in Art. 17.06(g) and in the MOA. 9. The Parties agree that the issues to be determined in this Grievance are as follows: a. Does the MOA apply to provide an entitlement to premium pay where a Full Time or Regular Part Time Employee is offered and accepts additional hours before or after a previously scheduled shift during the period of twelve (12) hours referenced in the MOA? b. Does the MOA apply to provide an entitlement to premium pay where an employee is mandated by their manager to work additional hours before or after 20 a previously scheduled shift during the period of twelve (12) hours referenced in the MOA? c. Does the MOA apply to provide an entitlement to premium pay where after the posting of the schedule, an employee is offered and accepts an additional, not previously scheduled shift, a portion of which falls within the twelve (12) hours referenced in the MOA? d. If the answer to any of the above questions is yes, does the MOA entitle the employee to premium pay on the hours falling within the period of twelve (12) hours referenced in the MOA, or on an equivalent portion of the employee’s next scheduled shift?