HomeMy WebLinkAboutUnion 05-05-12
IN THE MA1Te.~ qF AN ARBITRATION
BETWEEN~
SAULT COtLEGE
AND:
ONTARIO PUBUC SERVICE EMPLOYEES~, UNION
AND IN THE MAllER OF A GRIEVANCE WITH RESPECT TO TRAINING.
O.B. SHIME. Q-C-
MARTHA B. YOUNG
RON DAVIDSON'
CHAIRPERSON
NOMINEE FOR THE COLLEGE
NOMINEe FOR THE UNION
APPEARANCES:
L, THOMPSON
COUNSEL. and others
for the College
COUNSEL, and others
for the Union
E. NURSE
A hearing was held in this matter at Sault Ste. Marie, Ontario
on April 12, 2005
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AWARD
The issue in this matter is whether training for workplace h~ardous materials infonnaUon
system (WHMIS) is to be included on the Standard WorkJoad Form (SWF) in, accordance with
Article 11 of the Collective Agreement. The parties submitted an agreed statement of fact which
is as follow$;
AGREED STATEMENT OF FACT
. A ~
1, rhis matter concerns a policy griev,ance filed by the Ontario Public Service
Employees Union '("the UnionN) dated May 21 ,2004 regarding a requirement
by Salt College ("the Employ~r") that all employees complete Workplace
Hazardous Materials Information System (W.H.M.I.S.) Training (Exhibit 1)
2. The parties are governed by the collective agreement between the College
Compensation and Appointments Council for the Colleges of Applied Arts
and Technology and the Ontario Public Serviqe Employees Union '(for
Academic Employees) effective September 1, 2003 to August 31 t 2005
(Exhibit 2)_
3. The parties are agreed that ti1e Board is properly s.e~ of this matter and
there are no preliminary objections to the Boarcfs jurisdiction.
4. In the early spring of 2004. the College distributed its booklet "Sault College
Professional Development SerieslO, which outUned the professional
development sessions that the College was making available that Spring to
employees. (EXhibit 5)
5. On Page 1 of the Professional Development booktet is a description titled
"Health and Safety 'WHMIS Far Everyone, the EssenUalsill. This outlined
the WHMIS training the College was presenting. Paragraph 1 reads: "In
orderto meet legislative requirements. all staff are required to complete this
tmining. The Occupational Health and Safety Committee ra-commends the
training is completed by December 2004.11 The 'final sentence notes that
"(a]s a final step, a quiz is available that is to be completed and upon
successfUl completion, print a oertificate[s] foryou, your supervisor and your
H. R file."
6. The WHMIS training is on a CD provided to each Direct9r or Dean to b~
provided to their staff. As stated in the description in the PO booklet. the
training has been developed by the Education Safety Association of Ontario
"in order to provide the essential information needed for a oomprehensive
workplace specific training program for all work~s in low risk oooupations-
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The program will also serve as II foundation for continued training for those'
workers in higher risk. occupations..
7. The CD takes approximately 1,5 hours to complete. The certificate which
, accompanies it can be printed with' a single' key stroke,
8.' 'In committee discussions the Union asked if the time spent towards,
completion qf the WHMJS training would be put on a Standard Workload
F.onn ("SWFlI). The College replied that it would not.
9. On May 21, 2004, the Union filed the above-noted grievance~ requesting as
~ remedy that the WHMIS training recognized as part of workload and
assigned in al;COrdance with the provisions of Article 11. -
The Union submits,that underthe Occupational Health and Safety Act it is ~he'responsibility
of the COllege to provide'WHMIS training; there is no obligation on an individual employee to ,train .
under the legislation. Accordin'gly, the'Union submits it is the College Who assigned the traini,ng,
by way of a CD-Rom in order to fulfil its, resPonsibility. The Union submits the tra!nfng Is
mandatory. It is to be recorded in the employee's per$onnel file, and it is to be completed within a
. '
designated time period. The Union argues that the nature and characteristics of the training
require that it should be recorded on the Standard Workload Form or SWF1d. The Union also
maintains that these are atypioal circumstf;lncas which are covered by the Collective Agreement.
The Union asserts the' training is not by mutual consent' and thenSfore falls Into the workload
category and shouJd be SW~'d; in affect, the College assigned the work and it should be part of
the attributable workload. The Union further maintains the College is not entitled to make a
unilateral assignment during the non-teaching period.
The College submits the request was reasonable, the work was nQt scheduled in a
particular period and the individual employees had the discretion as to where to find the ninety
minutes to comply with the training. The College argues the employees have periods of time
where no SWF'd duties are pelformed and are able to perform the WHMIS training during that
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period at their discretion, but subject to the College's'deadline.. The Colleg~ claims this is a
complementary function or. alternatively, professional development and do~s not fall within ,the
specific proviSions of the Collective Agreement requiring the duties to be SWF'd. While the College
set a deadUne for the assignment to' be completed I it was the responsibility of the ind.v.idual: as, to'
when to do ',the assignment,during that. period. The College argues 11: was entitled to 'r.ecord the
em~loyee's completion of the training.
By way of reply, the Union submits that If this assignment Was a eompleme:ntary
~ssignment, ~ must be done by mutual consent and the'Work could not be unit~terally assigned.
The relevant provisions of the Collective Agreement are:
ARTICLE 11
WORKLOAD
11.01 A
Each teacher shall have a workload that adheres to the provisions
of this Article.
11.01 B1
Total workload assigned and attrfbuted by the College to a teacher
shaJJ not exceed 44 hours in any week for up to S6 weeks in Which
there are teaching contact hours for teachers in post-secondary
programs and for up to 36 weeks in which there are teaching contact
hours In the case of teachers not in post-secondary programs.
The balance of the academic year shall be reserved for
complementary func.tions and professional development
Workload factors to be considered are:
(I) teaching contact hours
(Ii) 'attributed houl'5 for preparation
(iii) attributed hours for evaluation and feedback
(iv) attributed hours for complementary functions
11,01 F
Complementary functions appropriate to the professional role of the
teacher may be assigned to a teacher by the College. Hours for
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&uClYfunctIDi1$'$t.all be atbibOted all an 110..11 fel hoarb'asfs':-'-""'w, '
An allowance of a minimum of-five hours of the 44 hour maximum
weekly total workload shall be attributed as follows; ,
three hours for routine out-o'-class assistance to individual students
, two' hours for'normal'administTative taSKS. '
11:01- G ,1 Where preparation I evaluation, feedback to students, ~nd
complementary funotions can be appropriately Performed outside the
College, schedulrng shall be atthe discretion oftheteacher$,.$ubjeot
to the requirement to meet appropriate deadlines established by the
College.
11.01 G 2 Where there are atypical circumstances affectine the workload ,of dI
teacher or group of teachers which are not adequately reflected in
this Article, 11, WorKload, additional hours shall be attributed,
following discussion between each teacher individually and ,the
supervisor. on an hour for hour basis.
11.:02 A1(a) Prior'to the establishment of a total workload for any teacher the
supervisor shall discuss the proposed workload with the teacher and
complete u,e SWF, 8ttaohed as Appendix 1, to be provl?ed by the
College. The supervisor shall give a copy to the teacher not later
than six weeks prior to the beginning of the period covered by the
timetable excluding hQlidays and vacations_ It Is recognized that if
the SWF is subsequently revised by the College. It will not be done
without prior consultation with the teacher.
11.Q2 A2 The SWF shall include all details of the total workload including
teaching contact hours, accumulated contact days. accumulated
teaching contact hours}' number of sections,' type and number of
preparations; type of evalu'atfonlfeedback required by the cuniculum,
class size, attributed hours, contact days, language of instruction
, and complementary functions. '
11.02AJ Following receipt of the SWF, the'teachershall indicate in writing on
the SWF whether in agreement with the total workload. If not in
agreement the teacher and the supervisor may add such other
comments as is considered appropriate and may indicate in writing
that the workload shouJd be reviewed by the College WMG.
11.03 The academic year shall be ten months in duration and shall, to the
extent it be feasible in the several Colleges to do so, be from
September 1 to the following June 30. The academic year shall in
any event permit year.round operation and where a College
determines the ~ds of any program otherwise, then the scheduling
of a teacher in one or both of the months of July and August shall b~
on a consent or rotational basis.
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, 11.08 ~...-trrl<eepin9 with the professionai ~bit~ the lteact.ler, non-
teaching periods are used for activities initiated by the teacher end
, by the; College 'as .part of the' parties' mutual commitment to
professionalism, the quality of education and profeSslonai
development.
, ,
. "Suoh activities will be undertaken by mutual consent and agreement
will fl9t be unreasonably withheld.
Such activities wi.ll neither be recorded nor scheduled except as in
accordance with 11.01 G 1_
After duly considering the Agreed Statement of Fact. the CoUeative Agreement and the
submissions, ,It is apparent the ten month academic year referred to in Artiole 11.03 ,i(i broken clown
into two distinct parts, namely, a teaching period and a non-teaching perlod1 and the parties have
created separate rules with respect to each of those periods. In effect, the parties have deSigned
a complete code, which is quite specific, for the teaching period ~nd have also provided for a more
flexible non-teaohing period in Article 11.08.
The system designed by the parties for the teaching period is more strictly controlled and
defined. Article 11.01 81, genera,lIy, contem~lates a College assigned workload limIted to certain
fIXed hours and that the workload factors to be considered are (1) teaching contract hours (2)
attributed hours for preparation, (3) attributed hours for evaluation and feedback an'd (4) attributed
hours for complementary functions. Article 11 then goes on to provide further detail for each of
the workload faotors. Article 11.08 (non-teaching), by comparison, does not refer to the,assignment
of a worKload, but ra.ther refers to activities of a general educational nature which are to bli
undertaken by mutual consent. There is no unUataral assignment contemplated in Article 11.08,
although it may occur if it is reasonable. In summary, the teaching and non..teaching periods are
, , ,
segregated, with the teaching p,eriod contemplating both Colllige assignments and also detailed
duties and responsibilities which are scheduled and recorded, while the non-teaching' period
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contemplates mutually agreeable activities'of a general educational nature which are not sche,duled
or recorded.
While the teaching period and "non-teaching periods are segregated"thE;!re is one
overlapping consideration and that is, pur$u~nt to Article 11,01 81. complementary fun~ions may
, ,
occur in both the teaching and non-teaching period. It is useful at this ;um;:ture to consider the
nature of a complementary function. The Oxford Dictionarv (ninth ed, 1995), defines complementary
as:
1 completing; forming a complement
2 (of two or more things) complementing each other-
In our view, a complementary function, in the context of this agreement, is. an activity that
completes another function of an educational nature that is part of, ~nd completes or
complements, the duties and responSibilities normally associated with that of a teacher. For
example, Article 11.01 F provides that complementary functions appropriate to the professional role
of the teacher may be assigned to a teacher by the College and includes out of class assistance
to students and normal administrative tasks_ Those functions are quite properly associated with
teaching and are complementary.WHMIS training. while it enhances a teacher's knowledge, is not
a part of the usual educational duties and responsibilities generally associated with a teaching
position. whether in the t~achin9 period or in the non-teaching period. WHMIS training, in effect,
stands alone: it is merely a requirement that enhanoes workplace safety.
While there is an overlap between the teaching and non..teaching periods with respect to
complementary functions, the distinction between assigned functions in the teaching period and
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functions-whiCh"feQt1ire ,mutual oonseAt-ift the ftOfl-t-eaeflif'lg period is f'flsil'tttllned:- -Ti't\:Js, Artiole
11.01 F refers to complementary functions whIch are assigned during the teaching period, whereas
ArtIcle 11.08 in context requires mutual consent for complementary functions. Accord~ngly, the,
College cannot< unilaterally assign work during the non-teaching period, a.s, ,it may durlng "the '
'teaching pertod. As indicated, there is an exception permitting the College,to initiate, and assign
,educational activities,' as defined by that article, which are reasonable in nature" and for which
consent may' riot be withheld.. In the speclnc circumstances of this casel the, WHMIS t(aining was.
assigned and was not undertaken by mutual consent. And even if one notionally a*s,ses the
situation, it is not one, in the context of the A.rtlcle, where withholding consent to the training, ilS
proposed, would tie unreasonable.
Further. the parties in ArtiCle 11.01 G2 have anticipated ther~ may ~e circumstances
affecting the workload which are unusual and which were not contemplated. Accordingly, they
have made specific provision for "atypical circumstances". ,In our view, WHMIS' training. which,
derives from the Oocupational H&aJth and Safety Act and is an employer responsibility and not an
individual responsibility, more properly falls into the category of atypical circumstances ratherthan
complementary function, It is too much of a stretoh to attempt to associate WHMIS training with
the teaching and educational provisions under the Collective Agreement. No doubt WHMIStraining
adds to a teachers knowfedge, but It is a highly selective and even idIosyncratic training which
serves the purpose of workplace safety, but does not enhance the teaching or educational
functiQns usually associated with teaching. Accordingly, we are unable to conolude th~t. WHMIS
training complements the concept of professlonali$m or professional development under Article
11.08; 'it 'is simply added knowledge and training for the limited, al~eijt important funCtion of
workplace safety, and, does not enhance a teacher's educational role. In short. it is our view, that
the traini~g, which derives from an external legislative source and does not enhance the
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, - h-educatiorlal ftInetiOftS sf '.6 teacher, falls iAte'!"4oo eak:~ef}i tjf atYl3ieal ~~m6titAoes-as
contemplated' by the parties in Article 11- .01 G2.
In summary, we determine that WHMIS training was an atypical circumstance and, not a
complementary funcUon derived from the 'College's responsIbility as an, empl9yer. under the
,Ocoupational Health and Safety Act which couJd not be unilaterally assigned as ,an activity during
, the -non-teaching period. The, WHMIS training was an atypioal circumstan,ce affecting workload
which was not adequately reflected in Article 11, within the meaning of Article 11.01 G2 and .must.
be attributed, if required, In accordance with the provisions of that Article. , Accordingly, the
grievance is allowed and ~ d~c.laration shall issue that any training that was requir$d and performed
shall be attributed to the teacher's workload and any future assignments of ths same natur& shall
be similarly attributed.
DATED AT TORONTO TIiIS 12th DAY OF MAY, 2005.
. '"IDISSENT"
MARTHA B. YOUNG
NOMINEE FOR THE COLLEGE
"l CONCURI'
RON DAVIDSON
NOMINEE FOR THE UNION
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Dissent
. ... .I.m,ust.res~y,.disagf,ee..with, tlJe ,majority., decisipn for the,foUowiA9'reasons... . , '
Art.ide 11, Workload. Qf the Collective Agreement, addresses the total aC$demic. year' ,
worJdoad of a facufty member. This includes the teaching and non - teaching periods; the
latter often referred to as the "non - contact period." The faculty have numerous periods
of non - oontact, such as the May ~ June period, the time after exams in Oeoember, a
break .in "March etc. ArttcIe 11..01 B 1 states: 'The balance ,of the year shaH be reserved
for complementary func:liOnS and profeSsional ctevelopmenl" The balance, of the, year '
r_r.s t9 ttIoSe, ~ Q.f. non - t~a.ching, and~riods for which there Is no Standard
Workload Form; the form that formauy deline3teS their workIoSd,
I agree with the College's position that the WHMIS training is contemplated by.Artide
11.08. This artfcle, ,as thes,e ,partie$', have agreed, provides for the activities in which the'
teacher engages during the..non ~ teactairig periods." These activities indude:~adJvities
initiated by the tsacher and by the College (emphasis mine) as part of the patlie$' mutual
commltmem to professionalism, the quality of edUcation and professional development 1I
The A~ further stnes; lf~uch ac;tivities wDt be undertaken by mutual consent and
agreement wiU not be unreasonably wiIhhek:L" It is therefore re8SOflable that the College
would ~ that a faculty mer.n~r complete a 90 minute Hearth & Safety instructional
CD during this per1od_ Further, the College's Health and Safety Comm~ which had '
faculty union r~on, ~ended this training. tt is therefore unreasonable"thilt
faculty members withhold thelr consent to' complete this training.
I think it jnstnJctive to review the relevant sections of the Occunational Health and ~
Act rOHSA).
Sec:tion 42 (1) states: "In addiUon to providing information and Instruction to a
worker, as required by ciause 26(2) (s), an emptoyer shall ensure that a worker
exposed or likely be exposed to a hazanious material orto a hazardous physical '
agent receives, and that the woJ1cer participates in. such instruction ancI training 8$
may be prescribed."
section '28 of the Ad. states: ~A worker shaD: (a) wort in compliance with ~
provision of this Ad and the regulations;-
The Act, provides a duty on employees, as well liS employel"$ for ensuring the sa(ety of the
workplace. Worker participation in assigned training is anticipated by Section 28.
I would therefore submit that there is an onus and obligation on the faculty member to
participate in the training. The refusal to do so woukJ violate the provision in Article 11.08
that states: .Such activities win be undertaken by mutual consent and ggf!JfJfTIent will not
be unreasooablv withheld_ " (Emphasis minel
SeoJndly. the Agreed statement of Fact ouUines that the College's Occupational Health
and Safety COmmittee recommended thi$ training be provided to College employees and
the FaCulty Union had representation on the committee. The College was therefore
compJying with OHSA Section 42 (2) which states:
'11le instnJction and training to be given under subSeCtion (1) shaD be
dev~oped and implemented by the employer in consultation with the
committee or health and safety representativ~, if any, for the workptace,-
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It is therefore reasonabl& for the College to assume that. by implementing a
reoommendation of the Occupational Health and Safety Committee. there was agreement
, with. or',the mutual cOnsent ot;,Jtle union unger Article 11.08 to ~~ t'bW. ~Ding to its
members.
,The majority,rety on Article 11.01 G 2,in rJecjding 'this 'case. This article specifically' .
references _atypical cIroumstances,~ The view of,the majority is that WHMIS training is
atypicaf. Again; I mO$l respectfUlly disagree. The OflSA Is highly regUlatory legiSlation
enacted fu erl$ure sstety of employees 'in the ,wori<place'. WHMIS traini"$) is one"of'tfle' " .
components: of workpIaee safety required to ensUre workers are knowtedgeable about .
,worf<pJcu::e ~~ ,As such, It Is- net- an,atypical'circUmstanae, but a continuous' "
requirefnent
The, majority also rely on Article, '11.01 F as supportirg the union's position. This artide is
specific, to the teaohing period as it stipulates the. complementary funGtiOns ,that must be
recorded on the Standard Woddoad Fonn '(SWF};ln this case. the College's ~tion
was that the faculty members would compiete this tIltining during the non - teaching
period.' , woUld respectivefy submit therefore. that thi$'.artide is not appUcable in this:ca8e.
The WHMIS training was not assigned and schec:JuJid by the College on a speciIie day
and at a speclfic time. 'This diffe/'$ signif'teanUy from lhe assigrvnent of work during the, '
teaching'period which is much more presariptive. The ~ had significant freedom and
flexibiJity to 'complete the WHMIS tfaining CD. similar to any ather professional
development activities in which they engage in non - teaohing periods.
For all of the above r~, f would have dismissed this grievance.
Dated at Windsor, oiltario this 911 day of May, 2005.
SwII: College and ()PS'EU
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