HomeMy WebLinkAboutRowat 22-02-161
IN THE MATTER OF AN ARBITRATION
BETWEEN:
SAULT AREA HOSPITAL
(the “Employer”)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION AND ITS
LOCAL 620
(the “Union”)
AND IN THE MATTER OF THE PREMIUM PAY GRIEVANCE OF BRITTANY ROWAT
2019-0620-0051
Louisa M. Davie - Sole Arbitrator
For the Union: Dan Hales
For the Employer: Rusty McLay
Danny Parker
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Award
This is a premium pay case. Ms. Brittany Rowat ("the grievor") asserts that pursuant to
the terms of the collective agreement between Sault Area Hospital ("the Employer") and
Ontario Public Service Employees’ Union, Local 620 ("the Union") she should have
been paid premium pay for the first four (4) hours worked on October 24, 2019. She
grieves that the Employer's failure to pay her one and one-half (1 ½) times the regular
straight time hourly rate for those hours violates the collective agreement provisions
relating to time off between shifts.
The Employer denies any violation of the collective agreement. It is the Employer's
position that the grievor was properly paid premium overtime pay for the additional
hours she worked on October 23, 2019, but that those additional overtime hours of work
do not entitle the grievor to further premium pay on her next scheduled shift on October
24, 2019.
The facts are not in dispute. The parties filed the following Agreed Statement Of Facts
and made oral submissions at a videoconference hearing conducted on February 9,
2022.
AGREED STATEMENT OF FACTS
1. The Parties agree that Arbitrator Louisa Davie has jurisdiction in this matter.
The Parties further agree that there are no preliminary issues with respect to this
dispute.
2. For the purposes of expediting the resolution of the arbitration in the matter,
the Parties have mutually agreed to the following facts and agree that neither
party will be required to call witnesses to prove any fact which is set out below.
3. The Parties agree that these facts are agreed upon solely for the purpose of
resolving the dispute in question.
4. This Agreement Statement of Facts and the attached Tabs will be marked as a
consent exhibit.
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OVERVIEW
5. This Arbitration involves the adjudication of one grievance filed by the Union
on behalf of the Grievor: 2019-0620-0051 (Tab 1) (the “Grievance”).
6. The Grievance alleges that the Employer violated the Collective Agreement by
not providing the Grievor with premium pay for her next shift after working a
double which resulted in a short change on October 24, 2019.
THE PARTIES
7. The Sault Area Hospital is a community hospital providing primary, secondary
and tertiary services for the residents of Sault Ste. Marie and surrounding area.
8. The Union represents full-time and part-time paramedical employees of the
Hospital in accordance with the recognition clause at Articles 2.01(a) and (b) of
the Local provisions of the Collective Agreement between the parties.
9. The parties are bound to Central and Local Collective Agreement Provisions
(Tab 2)
THE GRIEVOR
10. At the relevant time, the Grievor, Ms. Brittany Rowat, was employed by the
Hospital as a part-time Medical Laboratory Technologist (“MLT”) under the
Collective Agreement between the Hospital and the Union.
THE GRIEVOR’S WORK
11. On the schedule for the time period of September 16, 2019 to October 27,
2019 (Tab 3), the Grievor was scheduled to work on October 23, 2019 in the Lab
from 0900-1700, and on October 24, 2019 in the Lab from 0900 -1700.
12. This schedule was posted four weeks in advance of the first shift on that
schedule.
13. On October 23, 2019, the Grievor worked her scheduled shift of 0900 -1700.
14. On October 23, 2019, the Hospital was required to fill a shift from 1500 -2300
in the Lab as a result of someone calling in sick. On that day, the Grievor was
offered the 1500- 2300 shift after no other Union employee accepted the shift.
The Grievor accepted the shift, but because she was already working from 1500 -
1700, another Union employee was required to work this period of time. The
Grievor then worked from 1700-2300 in the Lab on October 23, 2019 (Tab 4).
15. On October 23, 2019, the Grievor worked her scheduled shift of 0900 -1700.
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THE COLLECTIVE AGREEMENT
16. The Local Provisions of the Collective Agreement contains the following
provision:
17. 08 Time Off Between Shifts
Failure to provide twenty-two (22) hours between the commencement 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 - 3 - employee's regular straight time hourly rate for
only those hours which reduce the twenty-two (22) hour period.
Where the twenty-two (22) hour period is reduced as a result of an
approved change of shift(s) requested by the employee(s), such premium
payment shall not apply.
Notwithstanding the above, with respect to part-time employees, the
references 22 hours shall be 20 hours, provided that:
a) the employee concerned consents in writing;
b) such consent can be withdrawn in writing at any time, and such
withdrawal will be effective from the next posted schedule;
c) the employee will have at least 12 hours break between the end of one
scheduled shift and the start of the next scheduled shift.
THE GRIEVANCE
17. On November 8, 2019, the Union filed the Grievance on behalf of the Grievor,
alleging that the Grievor “should receive premium for her next shift after working a
double which resulted in a short change on October 24, 2021”.
18. Throughout the Grievance procedure, the Union and Grievor clarified that their
position was that the Grievor should be entitled to four (4) hours of premium pay
for the first four (4) hours of her shift on October 24, 2019, as she received 16
hours between the commencement of the shift beginning at 1700 on October 23,
2019 and the shift beginning on 0900 on October 24, 2019, and did not receive the
20 hours required by Article 17.08 of the Collective Agreement.
19. At Step 2, the Hospital outlined its position that Article 17.08 refers to scheduled
shifts, and not shift extensions or shift call-outs, and that therefore the Grievor
received the requisite 20 hours between the commencement of her scheduled shift
on October 23, 2019 (0900-1700) and the commencement of her next scheduled
shift on October 24, 2019 (0900-1700) (Tab 5). TAB
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The Collective Agreement
The collective agreement between the parties consists of both central and local
provisions. Although the parties referenced several other articles of the collective
agreement in their submissions, the primary articles relevant to the grievance are article
17.09 of the central provisions and article 17.08 of the local provisions. Article 17.09 of
the central provisions of the collective agreement states:
17.09 Time Off Between Shifts
(a) Failure to provide the minimum number of hours between the commencement
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.
(b) 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.
(c) The minimum number of hours for purposes of this Article shall be determined
locally and will be set out in the Local Provisions Appendix.
The dispute in this grievance centers principally around the interpretation of article
17.08 of the local provisions which was negotiated pursuant to article 17.09 (c) above.
Article 17.08 of the local provisions is set out in the Agreed Statement of Facts.
Before turning to the able submissions of the parties I note at the outset that the parties
did not dispute the principles to be applied to the interpretive task before me. That is,
the role of the arbitrator is to discern the intent of the parties from the language they
have used. In that regard an arbitrator must look at the collective agreement as a whole
and must give the words used by the parties their plain and ordinary meaning. Parties
are presumed to "say what they mean and mean what they say" so that the same words
used throughout a collective agreement are assumed to have the same meaning each
time used, and different words are assumed to have different meanings. This ensures
internal consistency. Of utmost importance to any interpretive exercise is consideration
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of the labour relations context and surrounding circumstances. I have applied these
principles in considering the submissions of the parties.
Submissions
I will outline the submissions and positions of the parties in a highly abbreviated form. In
so doing I do not intend to convey that all submissions were not fully considered. To the
contrary, I have carefully reviewed the submissions of the parties and the cases upon
which each relied.
The Union's primary submission was that on October 23, 2019 the grievor worked two
separate shifts scheduled by the Employer. The first scheduled shift was the 9:00 am to
5:00 pm shift referenced on the schedule posted four weeks in advance. The second
shift was the 5:00 pm to 11:00 pm shift which the grievor was offered and accepted
when another employee called in sick.
The Union submits that when the grievor accepted the second shift it became a
“scheduled shift” for purposes of applying article 17.08. As the grievor, a part-time
employee, was not provided 20 hours between that scheduled shift and the next
scheduled shift which commenced at 9:00 am on October 24, 2019, the grievor was
entitled to premium payment for the hours worked on October 24, 2019 which reduced
that 20 hour period.
The Union referenced article 16.14 of the local provisions of the collective agreement
which states
16.14 Schedule Definitions
A master schedule is a series of lines that indicates days working a particular
shift and days of rest and follows pre-set criteria of number and types of shifts
and weekends worked. The master schedule will reflect the particular needs of
each department.
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The posted (working schedule) reflects the hours of work and the day to day
changes.
The departmental schedule (where applicable) is the schedule which reflects the
assignment of the employee
As the posted schedule is the same as the working schedule it was argued that both
schedules reflect hours worked and shifts which have been assigned.
The Union submitted also that the final paragraph of article 17.08 required that the
grievor have at least twelve (12) hours break before her shift on October 24, 2019. As
the grievor worked until 11:00 pm on October 23, 2019 she was not afforded the twelve
(12) hours break. She was required to start at 9:00 am on October 24, 2019 and could
not have refused to work that scheduled shift. Her break between shifts therefore was
only ten (10) hours and violated the collective agreement.
It was the Union's position that, read in its entirety, it was clear that the intent of the
parties in agreeing upon the language of article 17.08 was to ensure employees
received premium pay resulting from the inconvenience of having to work without rest or
sufficient break between shifts. Although article 17.08 would not apply where an
employee works only one or two extra overtime hours at the end of a shift, it was clearly
intended to apply to these circumstances where, fourteen (14) hours were worked on
October 23, 2019 and there was less than twelve (12) hours rest between the end of
those shifts and the commencement of the grievor’s shift at 9:00 am on October 24,
2019.
In support of the submissions the Union relied upon Durham (Regional Municipality) and
CUPE [1993] 32 C.L.A.S 577 (Springate); General Hospital Corporation and N.A.P.E.
[1993] 28 C.L.A.S. 227 (Oakley), Guelph General Hospital and ONA [2010] 101
C.L.A.S. 65 (Herman), British Columbia Health Services and CUPE, Local 873[2015]
127 C.L.A.S. 211 (Sullivan), Children’s Hospital of Eastern Ontario and L.I.U.N.A [2021]
147 C.L.A.S. 280 (Parmar).
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The Employer submitted that arbitral jurisprudence draws a clear distinction between an
employee’s "scheduled shift" and an employee’s "hours worked" or hours "required” to
be worked. In this case, for part time employees such as the grievor, article 17.08
requires premium payment only where there is not twenty (20) hours between the start
of an employee’s scheduled shift and the beginning of the employee's next scheduled
shift. Here the grievor's scheduled shift was 9:00 am to 5:00 pm on October 23, 2019
and her next scheduled shift was 9:00 am to 5:00 pm on October 24, 2019. Thus, the
Employer provided her with more than twenty (20) hours rest between the scheduled
shifts.
It was the Employer's position that the shift extension, or the overtime hours worked by
the grievor on October 23, 2019, for which she received premium payment, was not a
scheduled shift and could not trigger premium pay the following day.
The Employer argued that article 17.08 was about scheduling and how the Employer
goes about exercising its management right to schedule employees and how much time
the Employer must provide employees when scheduling shifts. Thus "scheduled shifts"
in article 17.08 referred to the schedule the Employer prepares and posts in accordance
with the collective agreement.
"Scheduled shift" did not and could not refer merely to hours worked or required to be
worked by an employee. The word "scheduled" had to be given some meaning and
could not simply be read out of article 17.08.
Moreover, in the collective agreement these parties have differentiated between the
terms "scheduled" and "worked" hours. Citing numerous specific examples in the
collective agreement the Employer asserted that throughout the collective agreement
the parties have applied the word "scheduled" to shifts or work previously scheduled by
the Employer, while hours "worked" was applied in those instances where hours or
shifts were actually worked by employees. These parties clearly knew the meaning and
distinction between the terms. Their intent in article 17.08 was to ensure that the
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Employer did not schedule a part-time employee to work with less than twenty (20)
hours between the start times of pre-scheduled shifts. The Employer noted that Article
17.09 of the central provisions of the collective agreement also referred to “scheduled
shift” and left it to the local parties to only negotiate the minimum number of hours off
between shifts
The Employer submitted that the concluding paragraph of article 17.08 also referred to
a twelve (12) hour break between "the end of one scheduled shift and the start of the
next scheduled shift." It was the Employer's position that in any event the final
paragraphs of article 17.08 was intended to do no more than reduce the time off
between shifts for part-time employees from twenty-two (22) hours to twenty (20) hours.
The Employer argued that to accept the Union's interpretation that an extension of a
shift (where an employee is offered and accepts additional hours) means that the hours
worked become a “scheduled shift” would result in the application of article 17.08
whenever the extra hours or overtime begin less than twenty (20) hours after the
employee’s shift first began. Shift extensions, no matter how long or short, would attract
premium pay on the next scheduled shift. The Employer claimed that was an absurd
labour relations result and one not intended by the parties.
In the result the Employer maintained that because article 17.08 refers to an employee’s
scheduled shift, and does not refer to "hours worked" or "hours required" or even just
"shifts", premium pay for any hours worked by the grievor on October 24, 2019 was not
required. All that was required was that the grievor receive premium pay for the extra
hours worked on October 23, 2019.
In support the Employer also relied upon Guelph General Hospital, supra and in
addition relied upon Brant Community Healthcare System and ONA [2009] 100 C.L.A.S.
71 (Williamson), Brockville General Hospital and ONA [2020] 146 C.L.A.S. 75
(Herman), Eastern Ontario Regional Laboratory Association and OPSEU [2021] 150
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C.L.A.S. 118 (Tremayne), Peterborough Regional Health Centre and ONA [2012] 113
C.L.A.S. 97 (Parmar).
Decision
I do not propose to analyze in detail each of the awards referenced by the parties. Each
award turns on its own set of facts and, most importantly, the specific language of the
collective agreement applied to those facts.
A review of the cases however does indicate that arbitral jurisprudence generally
accepts that there is a material distinction between “scheduled” hours or shifts, and
“worked” hours or shifts when those terms are found in a collective agreement. The
healthcare sector cases referred to by the parties also tend to indicate that when an
employee agrees to work additional hours or an additional shift, those hours do not
become part of their scheduled hours or scheduled shifts (see Guelph General Hospital
supra, Brockville General Hospital supra, Peterborough Regional health Center supra).
Of all the cases cited the least persuasive is Children's Hospital of Eastern Ontario
supra which turns entirely on the peculiar facts and specific language of the collective
agreement at issue in that case. The most persuasive award cited is Eastern Ontario
Regional Laboratory Association supra which deals with circumstances and collective
agreement language similar to those at issue in this case, and which specifically
addresses use of the term "an employee’s scheduled shift". For the most part I accept
and adopt the analysis found in that award as applicable to the instant dispute.
Similar to the language of this collective agreement, in Eastern Ontario Regional
Laboratory Association supra the collective agreement provided for premium pay where
an employee did not have "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." The arbitrator concluded that the plain and obvious meaning of "scheduled shift"
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was the schedule prepared and posted by the Employer at the start of the scheduling
process in accordance with the collective agreement.
The arbitrator rejected the Union's argument that premium pay applied whenever the
extension of an employee’s shift resulted in less than twelve (12) hours of rest before
the start of the employee’s next shift. Instead, he found that premium pay was not owed
when there is less than twelve (12) hours of rest because the employee agreed to work
additional hours before or after their scheduled shift. He concluded that such additional
hours were not part of the employee’s "scheduled shift."
I agree with that conclusion and accept the Employer’s submissions that it applies
equally in this case.
Notwithstanding the Union's submissions to the contrary, I do not agree that article
16.14 impacts that conclusion. I do not accept that the reference to "scheduled shift" in
article 17.08 should be interpreted to include shifts or hours worked by reason of the
fact that article 16.14 appears to equate "posted schedule" with "working schedule."
I accept the Employer's submissions that the word "scheduled" must be given meaning.
It can't simply be read out. In this collective agreement a "scheduled shift" refers to the
shifts on the schedule that the Employer is required to prepare and post. It is a specific
narrow term which, coupled with the opening words "failure to provide" focuses attention
on the Employer's conduct and action in scheduling. The focus is not on the actions of
the employee in working. It is the Employer which "provides" the schedule. The
employee's actions in working additional hours does not alter that. Those additional
hours worked do not affect the "employee’s scheduled shift" and therefore can't give
rise to premium pay. Under article 17.08 premium pay is not engaged by an employee
who works additional hours. The article is engaged by the Employer's "failure to
provide" sufficient time off between "scheduled shifts."
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Throughout this collective agreement these parties have used the term "hours worked"
to differentiate between work previously scheduled and shifts or hours actually worked
by an employee. These sophisticated parties clearly understood the difference between
the terms "scheduled" and "worked" and intended their use of those terms in various
parts of the collective agreement to have different meanings. It is perhaps trite to say
that generally, and unless the drafting of the collective agreement or context indicate
otherwise, similar terms used throughout a collective agreement should be given a
similar meaning, while dissimilar terms should be given a different meaning.
Some examples clearly illustrate this distinction between “scheduled” and “worked”
shifts or hours in this collective agreement..
This collective agreement provides for premium payment where the Employer cancels a
part time employee’s "scheduled shift" in advance without sufficient notice of such
cancellation. (see article 17.10 (b) of the central provisions below). That provision
seems to implicitly accept that a "scheduled shift" must be scheduled in advance so that
a shift extension can't be considered a "scheduled shift" because it can't be canceled in
advance. Thus, in this case, the additional hours which the grievor worked from 5:00 pm
to 11:00 pm on October 23, 2019 can't be considered the grievor’s "scheduled shift"
because it is not a shift which could have been canceled in advance.
Moreover, I note that article 17.10 (b) of the central provisions of the collective
agreement refers to both "scheduled shift" and "hours worked". It states
17.10 Change of Schedule
(a) (Applicable to full-time employees only)
Where an employee’s schedule is changed by the Hospital with less than twenty-
four (24) hours’ notice, they shall receive time and one-half (1 ½) of their regular
straight time hourly rate for all hours worked on their next shift.
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(b) (Applicable to regular part-time employees only)
Where a regular part-time employee’s scheduled shift is cancelled by the
Hospital with less than twenty-four (24) hours’ notice, they shall receive time and
one-half (1 ½) of their regular straight time hourly rate for all hours worked on
their next shift.
Thus, if an employee’s “scheduled shift” is canceled, she receives premium pay for all
“hours worked” on her “next shift”, not necessarily her next scheduled shift. This clearly
indicates "scheduled shift" must be interpreted differently and more narrowly than either
"shift" or "hours worked" contrary to the Union's submissions in this case.
Article 17.06 of the central provisions deals with a meal allowance and in so doing also
differentiates between an employee’s scheduled hours of work, and overtime or
additional hours arising from a shift extension. A meal allowance is paid if an employee
works more than two (2) hours of overtime “immediately following their scheduled hours
of work", which suggests, once again, that such additional hours are not included in the
"scheduled hours of work".
As a final example I also accept the Employer's position regarding article 16.01 of the
local provisions. That article states that "scheduling" for part-time employees will
average seventy-five (75) hours over a two-week period, and that "worked hours" so
averaged shall not constitute an entitlement to premium pay. This provision therefore
exemplifies the difference between "scheduled shifts" (shifts that the employee is
prescheduled to work as part of the Employer's obligation to provide a schedule) and
"hours worked" namely those hours actually worked by an employee. This article makes
it clear that the two terms "scheduled shift" and "hours worked" are not intended to have
the same meaning.
LOCAL PROVISIONS – ARTICLE 16 – HOURS OF WORK AND OVERTIME
16.01 Work Week and Work Day
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Scheduling for full-time employees will permit the averaging of 150 hours of work
over a four-week period. Worked hours so averaged shall not constitute an
entitlement to premium pay.
Scheduling for part-time employees will permit the averaging of 75 hours of work
over a two-week period. Worked hours so averaged shall not constitute an
entitlement to premium pay.
In the result the grievance must be dismissed. The time off between shifts is measured
between the commencement of the employee’s scheduled shifts. Additional hours that
are worked when an employee is offered and accepts them are outside the scope of the
employee’s "scheduled shift". Such hours are not by themselves a scheduled shift and
are not part of employee's scheduled shift.
In article 17.08 the parties did not use such words as "hours worked", "required", or
even simply the word "shift" all of which may have yielded a different result in this case.
Rather, the use of "an employee’s scheduled shift" points to an intent that employees
are entitled to premium pay under the article where the Employer prescheduled
employees to work with less than 20 hours between the start time of prescheduled
shifts. The "employee’s scheduled shifts" language does not disclose an intent to pay
premium pay on the employee’s next scheduled shift merely because the employee
worked additional hours outside of their "scheduled shift."
The grievance is dismissed.
Dated this 16th day of February, 2022
Louisa Davie
Louisa M. Davie