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HomeMy WebLinkAboutUnion 04-02-27 ~eI> 27 200Lj IN THE MATTER OF AN ARBITRATION BETWEEN: F ANSHA WE COLLEGE OF ApPLIED ARTS AND TECHNOLOGY -AND- ONTARIO PuBLIC SERVICE EMPLOYEES UNION, LOCAL 110 -AND- ONTARIO PuBLIC SERVICE EMPLOYEES UNION, LOCAL 109 REGARDING: THE LONDON JOINT HEALTH AND SAFETY COMMITTEE AGREEMENT Appearances for the Locals: Michael D. Wright Appearances for the College: Robert J. Atkinson Before: Brian McLean A hearing in this matter was held in London, Ontario. 2 On June 22, 1999 Panshawe College and OPSEU Locals 109 and 110 (the "Locals") entered into the following agreement: LONDON JHSC AGREEMENT Fanshawe College, Local 109 and Local 110 agree to the following changes to the existing JHSC terms of reference, regarding the structure of the London Joint Health and Safety Committee and the time release associated with the work of the committee, task forces and its inspection structure. 1. The London JHSC shall be comprised of one committee member and one alternate member from Local 1 09 and Local 11 0 each with a workload release of 9.5 hours per week plus an additional 6 hours per week for the worker co-chair, and up to two management members and two alternate members. The London JHSC shall be composed of these eight members with 4 appointed by the college, 2 by Local 1 09 and 2 by Localll O. A quorom shall be comprised of four, six or eight members with equal representation from ,the College and the Union. 2. As defmed by the OHS Act or .as determined by the London JHSC, the responsibilities of the worker members include attendance at monthly meetings to a maximum of 3 hours each, preparation for the meetings, research, attendance at Ministry of Labour visits, attendance at testing,. investigation of complaints, accidents, incidents and critical injury investigations, as well as investigation of work refusals and participation in task forces, training programs and conducting workplace inspections as outlined in section 4 below. The London JHSC shall make re~ommendations to the President. 3. The London JHSC shall strike task forces of up to 3 hours per week total (this time allocation being included in the total 9.5 hours per week for London JHSC members). The first task forces shall be ergonomics (1 hour per week) and training (2 hours per week). The task forces may be changed as determined by the London JHSC. The time of three hours per week includes time for preparation, meetings and other activities. Should a decision be made by the London JHSC to add additional task forces that exceed the 3 hour total, the college shall treat this as an additional assignment. The task forces shall make recommendations to the London JHSC. 4. Every month 2 worker reps and or alternates shall join different area inspection teams to conduct a workplace inspection. 5. The college shall make every effort to facilitate the 109 worker rep joining the Fanshawe College Student Union JHSC inspection team on one audit per year. 3 6. The college shall be divided into 10 inspection zones. Locals 109 and 110 shall appoint one area inspector for each zone to inspect one half of the zone each month. These members shall have a workload release of 1.25 hours per week. Each inspection team shall be comprised of one worker rep and one management rep. The findings of the inspection team shall be reported to the London JHSC, area supervisor and theOHSS. The purpose ofthis group is to perform inspections and to promote health safety awareness in their area. There shall be one co-ordinating meeting per semester of the. inspection sub-committee with the London JHSC. All persons conducting inspections shall receive WHSC certification training at a total cost not to exceed $2000. 7. Should there be more than one monthly meeting of the London JHSC, or should the regular . monthly meeting exceed 3 hours, the additional time plus equal preparation time shall be regarded as an additional assignment. 8. The term of this agreement shall be until June 30,2001. A review of this agreement shall be conducted by the London JHSC. The LondonJHSC shall make recommendations to continue, change, or dissolve this agreement to the arties by June 30, 2001. Where agreement cannot be reached by the London JHSC, the parties will meet and attempt to resolve the issues. If the parties cannot agree then the matter shall be referred to mediation/arbitration. If a ~ediator/arbitrator cannot be agreed upon, either party may request that the CRC (or its successor) to appoint one. Agreed,. signed and dated June 22, 1999 (Signed by Local 110, Local 109 and the College) Upon the expiry of the London JHSC Agreement the JHSC conducted a review of the Agreement. The committee was unable to reach a renewal Agreement so the parties attempted to resolve the outstanding issues. They were unsuccessful. Accordingly, the Locals asked the Colleges Relations Committee to appoint a mediator/arbitrator in accordance with paragraph 8 of the Agreement. I was appointed by the Colleges Relations Committee on January 30,2003. I attempted to medIate a settlement of the issues which divided the parties, but the parties were unsuccessful in reaching an 4 Agreement. Accordingly, on June 3, 2003, the parties appeared before me for a final determination of the outstanding issues. . The parties agreed they would argue both a preliminary jurisdictional issue raised by the College and the merits of the dispute at the same time. The argument was complicated by the fact that, at the College, academic employees, represented by Local 110 and support staff, represented by Local 1 09, operate under tWo quite different collective agreements. I concluded that Local 109 and the College did not have the right under their collective agreement to enter into the London JHSC Agreement. Accordingly, I found that I only have jurisdiction to determine a new London JHSC Agreement between the College and Local 11 O. In view of my decision I invited the parties to. make further submissions before I determined the merits. They did so. This decision determines the new London JHSC Agreement. There are a number of issues which the parties were unable to resolve prior to the expiry of the Agreement. In addition, my determination regarding my jurisdiction raised additional issues which the parties had no real opportunity to negotiate. My determinations with respect to all of these issues follow. . Composition of the London JHSC My determination on the jurisdictional issue created complications regarding the composition of the JHSC. The complications aris.e because both Locals have the right to 5 representation on a joint health and safety committee at the College, but only Local 110 J has the right under its collective agreement to negotiate enhancements to the OHSA's requirements and to negotiate the terms and conditions of its members' participation in the JHSC's activities. One answer could be to have two joint health and safety committees. However, the Occupational Health and Safety Act (the "OHSA") requires that there be one joint health and safety committee at a workplace and two committees does not fit neatly intoth~ scheme of the OHSA: In addition, the College candidly acknowledged that it makes little practical sense to have one committee covering the employees represented by Local I 09 and another committee operating under the London Agreement. The College argued that there should be one JHSC and it should be permitted to deal with Local 109 on its own to determine its participation on the Committee. It asserted that in view of my determination on the jurisdictional issue, I do not have the jurisdiction to make any direction which affected Local 109 in any way. To be blunt, it is fair to say that the College would view any mention of Local 109 in my decision as simply a way of circumventing my ruling on the jurisdictional issue. Local 110, on the other hand, welComed the inclusion of Local 109 in the London Agreement. It sees no obstacle to its inclusion on the committee while acknowledging that I am restricted in the way in which I treat it. I have considerable sympathy for the College's position. However, ultimately I must reject it. I am mindful of the fact that the parti~s (Local11 0 and the College) have had little or no opportunity to attempt to bargain a new London JHSC Agreement under the 6 new circumstances, those circumstances being Local 109' s inability to enter a local agreement with the College. They have not, to my knowledge, canvassed between themselves in any meaningful way how Local 1 09 might fit into the new London Agreement. In my view, I should consider and resolve the issues which must inevitably arise as a result ofLocall09's exclusion from the Agreement, but necessary inclusion in the process. The Agreement should be made with an appreciation of the practical facts at the College. To do otherwise would be to make the Agreement in a vacuum. Accordingly, under the Agreement the parties shall invite the participation of Local 1 09 to both sit on the Committee and to have its members participate in inspections. I have no jurisdiction to determine the terms and conditions under which Local 109 members will sit on the JHSC or participate in inspections should they accept Local 110' s invitation. Any compensation and/or release time which may (or may not) be due to Local 109. members who participate in activities of the Committee following an invitation under the Agreement is not within my jurisdiction. The College also sought to increase the composition of the Committee. This proposal will be discussed below. Duration of the Agreement and Retroactivity Local 11 0 argued that the Agreement should be made to run retroactively and that (in view of its position regarding compensation) persons who participate under the 7 Agreement should receive an order for back pay. The College's position is that the term of the new London JHSC should mirror the term of the new (yet to be concluded) academic employees' collective agreement. The College's position is complicated by the fact that the current academic employees collective agreement expired on August 31, 2003 and the parties to that collective agreement have not, both at the date ofthe hearing and the date of this decision, negotiated a renewal agreement. The College and the two Locals have been operating uhder "the expired 'London Agreement while attempting to settle a new one. My conclusion on this issue must be guided by the academic employees' collective agreement. Article 7.03 of that collective agreement states: ~ /~ \~,y ~( } V'v ~\X JY jlJ ~O>(J^? IT'.I{I'U", tJl _/<-. \ yf ~ \\ )! ~ ,[11; .Y~ ~o?J JJY ~\ 6\ <I" my award on the jurisdictional issne I detennined that the London Agreement is a '~_J.~~ ( "resolution ofa matter as to the local application of [the Collective Agreement]" under r( jJ-' Article 7.03. In my view, that determination settles the issue ofthe term ofthe new ~f' Where it is considered mutually desirable that the Union Local and the College set out in writing the resolution of a matter as to the local application of this Agreement or clarification of procedures or conditions causing misunderstanding or grievances as referred to in 7.02(i) or (ii), such resolution may be signed -by the parties and apply for the specific terms agreed upon but, i~ any event, shall not continue beyond the term of this Agreement as currently in effect. London Agreement. It must have the same term as the applicable centrally bargained academic employees' collective agreement. Determining the applicable collective 8 agreement is complicated by the fact that the local parties did not, at the time it was entered into, view the London Agreement as an Article 7.03 agreement and thus the term of the London Agreement did not correspond with the then in force collective agreement. The Londort Agreement had aterm of June 22, 1999 to June 30,2001. The current (central) collective agreement has a term of September 1, 2001 to August 31, 2003. Accordingly, the London Agreement should have expired on August 31, 2001 and any new London Agreement would have expired .on August 31, 2003. Neither party asked that I apply Article 7.03 strictly in this case. To do so would render ~. . . . this entire process essentially meaningless as the new agreement would expire before it operated. I take the conduct ofhbth parties, coupled with the effect of Artiele 7.03 to mean, in effect, that the former London Agreement operated through two collective agreements and will expire (or has expired) on the expiry date of the 2001 to 2003 collective agreement. In view of the good faith conduct of the parties and the fact that a . central aspect of the London Agreement is an inspection regime which can have no retroactive application, I am satisfied that the new London Agreement should run for the term of the sQon to be negotiated collective agreement in accordance with Article 7.03 of the academic employees collective agreement, unless the new collective agreement does not contain Article 7.03 or an equivalent Article. ~p.der these circumstances I do not find it appropriate to make any provision retroactive, even assuming 1 have the power to do so. The College and the Unions have operated under the London Agreement for the entire duration of the now expired collective 9 agreement. It only makes sense to implement the new Agreement for the prospective collective agreement. Should the Zone Inspection System be Eliminated? A significant rationale for the existence of the London Agreement is to provide an enhanced scheme of health and safety inspections at the College. Under. the London, Agreement inspection regime the College is divided into 10 geographic inspection zones. Each month, excluding July and August, a two person inspection team (one management member and one member of either Local 1 09 or 110) inspects one half of each zone. Therefore, the entire College is inspected a total of 5 times per year. The College proposes to completely revamp the inspection regime. It proposes that certain higher risk areas (laboratories, kitchens, maintenance and academic trades' areas) be inspected twice per year. All other areas in the College would be inspected once per year under the College's proposal. The College acknowledges that its proposal constitutes a significant reduction in the number of inspections currently undertaken. . However, it asserts that under its proposal, the effectiveness of inspections would be enhanced, thereby offsetting the reduction in the number of inspections. In any event, the College argues that the College is not a dangerous workplace and the current level of . inspection is not justified. 10 Some background facts are necessary to understand the rationale for the College's proposal. Panshawe College has approximately 1,000 full-time employees and approximately 10,000 students in 4 campuses. Each campus has its own joint health and safety committee. The President of the College is responsible for providing an annual report to the College's Board of Governors regarding the College's health and safety program. The College provided a copy of the 2002 report to me. Pollowing the presentation of the 2002 report, the College engaged an outside contractor, Stantec Consulting Ltd., to conduct an assessment of the College's conformance to the Board of Governors' health and safety policy. Stantec issued a report (the "Stantec Report") dated March 21,2003. The StantecReport, amongother thitigs, raised questions to the College about the effectiveness of its health and safety inspection system. The Stantec Report was provided to me and was relied on by the College in its argument. The following passages are relevant highlights of the report: 4.3 Internal Responsibility System The internal responsibility system is well supported.. Joint Health and Safety Committees (JHSC) are active at all Panshawe locations and these are provided with necessary support and time to exercise their responsibilities. The London Campus JHSC appears.small for the scope of responsibilities that they carry and consideration might be given to increasing the level of representation on the committee. The committee system is supported by many "zone inspectors" who carry out regular inspections throughout the London campus. These inspectors have received core certification training. 11 No formal recommendations were made by any of the JHSCs to senior management and this is a surprise to us given the amount of activity that is underway at Fanshawe. 5.1.2 Joint Health and Safety Committee The JHSC is active in inspection through the direct involvement of JHSC members, but more particularly through a network of twenty "Zone -.- Inspectors" who each spend five hours per month inspecting a geographic area of the college. The Joint Health and Safety Committee members interviewed demonstrated a genuine concern for the health and safety of staff and for students. However, the committee has clearly struggled to develop a consensus on the way forward for health and safety. Until recently votes were taken on key issues and mediation and arbitration has been resorted to as a way of resolving differences. Rarely does the committee establish a common understanding of concerns that need to be addressed to senior management for consideration. To an independent observer this dissonance is surprising as the fundamental values and goals for safety seem to be highly congruent amongst all JHSC members. The committee appears to be small for an organization of the size and' complexity of the London campus ofPanshawe College and with the participation of "alternates" on the l~bour side is imbalanced. The committee would almost certainly benefit from the additional' involvement, experience and viewpoints of more members. As a general guide, the committee should be large enough so the health and safety concerns of the entire workplace are represented. 12 5.2 Inspection There is a considerable amount of health and safety inspection activity undertaken at Fanshawe-much more than we have ever experienced in other workplaces including those in high hazard industries. Some of this inspection is carried out by the HSSS (e.g., life safety equipment) and the JHSC. . . .However, the majority of inspections are conducted by "zone inspectors". Joint management/labour teams inspect areas of each often "zones" every month. Inspections are also carried out at night While on the face ofit, a lot of inspection mightbe regarded as a positive attribute ofthe College's Health and Safety programme, we believe that this is not the case at Fanshawe College for the following reasons: · The inspections are not focused and are. experientially based. The. inspectors, who generally have been provided with only Core Health and Safety Certification training, are not equippe~ with and do not use checklists or audit protocols to ensure that important health and safety concerns are identified. . · Findings from zone inspections are heavily weighted towards housekeeping concerns that may have little direct bearing on safety. Also inspections tend to focus considerably on "theme items" such as fmdings that office chairs only have four legs, rather than the preferred more stable five-leg. configuration. . Inspection often relate to repeat findings. Avery large number of findings are not followed up onand the backlogof findings is growing unmanageably. For example the list has grown to over 480 outstanding items in February of this year. . . As a consequence of the very large number of findings generated by the zone inspectors, and the growing backlog, important findings that may have a direct bearing on safety may go unrecognized resulting in persistent unsafe conditions. Zone 13 inspectors generally do not rank their findings by risk or importance. They raise issues but do not get at the root cause to prevent reoccurrence. . The considerable amount of unfocused inspections, generating findings that are widely acknowledged not to be of high significance, is having an adverse impact on the value placed on safety initiatives generally, and the credibility of safety management initiatives has consequently suffered. Stantec proposed, among others, the following changes to the inspection system: 1) Reducing the overall amount of inspection 2) Focusing the inspection on safety concerns by means of checklists or inspection protocols 3) Conducting assessments that are departmental or focused rather than zone inspections. 4) Ensuring thorough follow-up of findings 5) Making greater use of JHSC members in departmental inspections In view of the Stantec Report findings and recommendations the College seeks a fundamental change in the way that inspections are carried out. The College would like inspections to be much more focused so that inspectors can concentrate on real safety concerns and not just be overwhelmed by what Stantec called housekeeping issues. It argues thatits proposal would achieve this goal by permitting employees who actually work in a particular department, who would be more li~ely to be aware of real hazard . concerns, to conduct th~ inspections in their department. 14 The College also relies on other factors in support of its position. First it notes that sections 8(6) and (7) ofthe OHSA state the following: (6) Unless otherwise required by the regulations orby an order by an inspector, a health and safety representative shall inspect the physical condition of the workplace at least once a month. (7) If it is not practical to inspect the workplace at least once a month, the health and safety representative shall inspect the condition of the workplace at least once per year, inspecting at least part of the workplace in each month. Therefore, the scheme contemplated by the OHSA envisions that there'be two members for each side on the JHSC and these are the individuals who would conduct inspections required by the Act. Since Local 110 does not dispute that it would be impractical to inspect the College once per month under section 8(6) of the OHSA, it follows that the College is legally required to inspect its entire premises only once per year, inspecting part of the premises in each month. Since the current London Agreement provides that the entire premises are to be inspected five times per year, it is apparent that the frequency of inspection vastly exceeds that required by the OHSA. The divergence between what the OHSA requires by way of inspections and what actually takes place at . the College is particularly striking in view of the fact that the College is not a dangerous workplace. The College also asserts that its JHSC inspects its premises far more frequently than other colleges in Ontario. In fact, it asserts, no other college that it is aware of inspects its 15 premises more than once per year. In addition it points out that none of the colleges that reported had set release time for joint health and safety committee members or had employees, other than JHSC members, conduct inspections. In the College's view the current inspection system does little or nothing to actually improve health and safety in the College. The number of employees injured due to accident has essentially remained the same from 1998 to 2002. Local 110 argues that the current inspection regime should remain much the same Ulider the new London Agreement. The only amendment it requests is an increase of release time to compensate for the increase in duties occasioned by the fact that the workplace has dramatically grown since the negotiation of the current London Agreement. In that regard the College's building space has increased from 850,000 square feet in 1989 to 1,243,045 square feet expected by 2004, an approximately 46 per cent increase over the relevant period. Local 110 asserts that in an interest arbitration a party must meet a strict test in order to justify a proposed change to an existing agreement. It relies on Dufferin County Board of Education and OSSTF,.an unreported decision dated March 19, 1979 where arbitrator Kennedy stated at page 10: ". . . an arbitrator or. final selector must set strict standards to be met before ruling that the clause be imposed on the reluctant party. .. . the party proposing the 16 clause [must] establish firstly that there is a demonstrated need for the provision desired and secondly that the proposed solution will in fact, deal with the need which is stated". Similarly, in Niagara Regional Board of Commissioners of Police, an unreported decision dated July 19, 1979, arbitrator Barton stated at page 23: "I am reluctant to tamper with an existing provision unless there is some concrete evidence as'to why I should do so". Local 110 argues that the College has not met the onus on it to establish a demonstrated need to make signifi~ant structural changes to the London Agreement. It also asserts that, in any event, the College's proposals would not resolve the issues that it says need addressing. Reducing the number of inspections will not lead to more focused inspections ,or a safer workplace. '~X8~e~i'9bll~Hletatl()p.'o~!~~1Jarti~S" .arg@ri~l1tslcon91ud~ ~harthezon~ipsp~cti<in \sy~tem~p...,.,,~,~~C,ltet1ia.iitiJ.lgla~~,\Vithsom.echa$.gesto reflect' thefa~ttha.ttheCollege h~ ~~ . '~""':f-' < >' ;.', - " -;- ;~. , ~11Q!"e~~4i1l.,~i:zg\~A,tb~~(jl1~ge's c()ncemsregarditjg. the ,fr(lquency (}finsp~ctiQns. Tlj ,€,:\?D:}:i"(>;:,::_\/'t,~-.>--;--".-.>.,-;--,--.,, ,"-",". '-, " "':' "', ,-"'.-,' , . .,-' ',-", ," follQwihgare the re~$oi1slorthat d~cision. ~':;;,::.'C, '"':,",, '..):,.': '" :' :: "..c, ,", ',',' , " ,,', ,.. The primary reason for my decision is that the College has not convinced me that there are fundamental problems with the current system that would be resolved by the implementation of the College's proposal. The purpose of inspections in clear: 17 inspections protect the health and.safety of workers by identifying hazards in the workplace. It may well be that the inspectors have, under the current regime, been identifying too many housekeeping and other unimportant items which are really not health and safety concerns and this has had an adverse impact on whether hazards are actually dealt with. InJ~~t;'\1le'Y;t1)ispr()blemisprimarily a training issul It is not a function of the number of inspectors or the zone inspection system. I have no reason to . think: that moving to a department inspections system and reducing the number of inspections will result in more focused inspections. Therefore, the College's proposal would not in my view solve the College's concerns with the current system. As noted the College relies on injury statistics to support its argument that the zone inspection system is not working. In my view the statistics are virtually worthless as evidence for the College's proposition. The number of injuries caused by accidents at the College is extremely low. For example, the total number of recordable injuries in 2002 (as it has been for four of the years reported) was eight, one injury which resulted in lost time and seven that required medical attention only. No pre London Agreement statistics were provided as a comparison. In any event, at such low accident levels it is impossible to make any conclusions about the statistics becatlse chance just plays too much of a role. Even I were to find that the accident statistics could provide meaningful information to inform my decision making, I do not accept that one could say, based on the accident statistics, that the current inspection system does not work. While it is true that the number of total injuries has remained relatively constant over the past four or five years 18 (while the zone inspection system has been in place) one needs context to understand how that is not a disappointing result. Most importantly, the College's physical space has expanded over that same time period. Therefore, the fact that the number of injuries has remained relatively the same, eventhough the potential for injuries (based on increased College space and increased student enrollment), has substantially increased is actually a positive result. Moreover, an argument can be made, based on the injury statistics, that there <has <actually been itnprovementover the five year period. An analysis suggests that even though the total number of recordable injuries has remained relatively the same, the frequency of more serious injuries, those involving loss of work time, has decreased. The College also relies heavily on the Stantec Report's conclusions and recommendations. However, it is unclear why Stantec recommended that the College reduce the amount of inspection and conduct inspections departmentally rather than using the zone inspection system. Stantec believed that there was too much unfocused inspection which identified too mariy "housekeeping and repeat findings" which in turn means that there is not enough focus on significant safety issues. How reducing the amount of inspection and conducting inspection on a department basis resolves these issues is not made clear in the Report. In total then, I have difficulty in accepting the College's argument. In my view reducing the number of inspections will not, by itself, focus the inspectors on more significant safety issues. Instead, unless other changes are made, like the implementation of better training, fewer inspections will just mean the same poor identification of issues just less 19 often. That is no solution. On the other hand if the inspectors are better trained and the inspection schedule is maintained relatively stable, the inspection process call be more effective. There is also very little rationale contained in the Stantec Report for the College's proposal to abandon the zone inspection system. The College's argument at the hearing was based on the assertion'that those who work in a department ate best equipped to """' > '.. identify hazards in that department. There is merit to this aspect of the proposal. On the other hand, health and safety inspections have traditionally been conducted by persons who are not necessarily working in the part of the workplace under inspection. The employees who work in the workplace can identify hazards on a daily basis while the inspectors can usefully bring a neutral and fresh eye to the process. I conclude that the London Agreement should maintain a zone inspection system because I ani not convinced that a department inspection system has advantages over the current model. Nevertheless, I encourage the parties to discuss the issue now that the other outstanding issues are resolved. It may be that the parties could agree that department inspections would benefit the College, although I am unable to conclude that based on the evidence and argument before me. Although I am unable to agree that the current inspection system requires change that is not the end of the matter in an interest arbitration, which is a substitute for negotiations. 20 It is apparent that the College has a substantial concern with the number of inspections required under the London Agreement. Quite simply, it believes that it is unnecessarily engaged in far more inspections of its premises than any other college. It proposes that inspections of high risk areas occur twice per year and of other areas once per year. The College's reliance on a comparison ofPanshawe to other colleges in Ontario is 'difficult to evaJtiate: "" Fitst, hot all ofthecolleges in the ptovincearelisted in the "material . provided by the College. Second, it is unclear how the sizes of the colleges and the courses offered by each of the listed colleges compare to each other. These are certainly relevant factors in assessing inspection needs. Nevertheless, Local 110 did not point me to any other college which has a comparable inspection regime. The materials, therefore, do at a minimum suggest that Panshawe has a substantially more extensive inspection regime than many other colleges. I am satisfied that the evidence, even as limited as it is, supports the College's position. In contrast, the College's arguments regarding the OHSA are ofless assistance to its position. While it is true that the minimum inspection frequency under the OHSA is one inspection per year, I cannot ignore the fact that is only the minimum. It is apparent that under the OHSA workplaces ar~ ideally to be inspected once per month. However, the legislature saw the impractically of that requirement for larger employers and did not want to burden the JHSCs in such workplaces. In the London Agreement the parties reached a compromise which in my view was intelligent and practical. On the other hand, I must acknowledge that the College is not a dangerous workplace on the whole 21 and that the annual inspection requirements of the OHSA apply to all workplaces including the most dangerous. It is not surprising that the College questions the benefits of the current inspection regime in its workplace. The final consideration is the subjective position of the parties. Local 110 wishes the existing system to continue' except in an enhanced form. It is clear that the College is dissatisfied with the existing system.T believe, intheahsence of a demonstrable and significant connection between current inspection frequency and safety at the College, which is not present here, that I should take the College's dissatisfaction into accountin determining the appropriate number of inspections. The College, perhaps unwittingly, gave up substantial control when it agreed to interest arbitration to resolve a new London Agreement. But for that agreement, the College, if it desired, could simply have reverted to the minimum inspection provisions of the OHSA. It would be wrong in my opinion to simply ignore the College's clear dissatisfaction with the current system particularly when the benefits of such an extensive inspection regime in a workplace like the College are so debatable. I therefore find it appropriate to reduce somewhat the amount of inspections at the College.. The reduction will occur with respect to the least dangerous areas of the , _ College. That is not to say that I am satisfied, as the College alleges, that the current system does not work. There is insufficient evidence before to support the College's assertion. However, in a workplace like the College it is very difficult to assess what role 27 LONDON JHSC AGREEMENT Fanshawe College and Local 110 agree to the following regarding the structure of the London Joint Health and Safety Committee and the time release associated with the work of the committee, task forces and its inspection structure. 1. The London JHSC shall be composed of eight members with 4 appointed by the ~ . . ... '...~" ..... "-.' college, ,2 by Locall 09 and 2 by Local 11 O. Local 11 0 shall appoint one committee member and one alternate member with a workload release of9.5 hours per week plus an additional 6 hours per week for the worker co-chair. The college shall appoint up to two management members and two alternate members. Local 109 shall be invited to appoint one committee member and one alternate. Release time and/or compensation, if any, for Loca1109's members who engage in committee and/or inspection activities are not determined by this Agreement. A quorum of the London JHSC shall be comprised of four, six or eight members with equal representation from the College and the two Locals. 2. As defined by the OHS Actor as determined by the London JHSC, the responsibilities of the worker members include attendance at monthly meetings to ,~,~~imum?!.~h, preparation for the meetings, research, attendance at Ministry of Labour visits, attendance at testing, investigation of complaints, accidents, incidents and critical injury investigations, as well as investigation of work refusals and participation in task forces, training programs and conducting workplace inspections as outlined in section 4 below. The London JHSC shall make recommendations to the President. 3. The London JHSGshall strike task forces of up to 3 hours per week total (this time allocation being included in the total 9.5 hours per week for London JHSC members). The first task forces shall be ergonomics (1 hour per week) and training (2 hours per week). The task forces may be changed as determined by the London JHSC. The time of three hours per week includes time for preparation, meetings and other activities. Should a decision be made by the 22 an inspection regime plays in a safe workplace. Given the experience at other Colleges and the nature of the workplace I do not find that safety requirements dictate the frequency of inspections which occur under the current regime. I also do not find, despite the increase in the College's size, that it is appropriate to increase the compensation and release time for inspectors. I conclude that an appropriate result, in consideni.tion of the positions of both parties can be fol1i1dby maintaining the current release time and compensation and by reducing the frequency of inspections for the least dangerous spaces of the College. ")iij(}Ud(:}n.JFISCi \ A;;~!,~'.Jll~~f'i'1~f~e~~~a16~ci-~S}(areal.p'k \ m ~ ~Membersof Local 11 0 who conduct inspections will retain the same release as in the :;~~,:~~ll,b~i1}Spected !\Vice per .' '&"""'"..", ". ...."..". .... ....', "., '.,' .,'" .. ~ be~~.Ag-u~t~4:9ncepeJ;" D;lollthe](:c1uding . July and Augu'st. j current Agreement. There is no reduction in release time as a result of the reduction. in .. lower risk area inspections. That is because of the increased size of the total space inspected occasioned by the College's growth. The parties will note that I havy not established an inspection schedule. I do not have sufficient information to do so. I anticipate the parties will be able to come to an agreement on this issue. It may be that the parties can agree that in each month ~ of the higher risk areas will be inspected and in each month 1/4 of the low risk areas will be inspected. However, the parties are in the best position to determine that issue. I will remain seized if the parties encounter difficulties. 23 Given my decisions, I doubt whether the College will continue its position that the size of the JHSC be increased. If my assumption js not correct and the parties. cannot agree how many persons should be on the JHSC, I will remain seized to determine this issue. Should the Agreement Contain An Interest Arbitration Provision? The parties vigorously disagreed on this issue. The College asserted that I have no jurisdiction to impose an agreement which contains an interest arbitration provision. The College relied on essentially the identical argument that it made in the first phase of this proceeding. That argument is that the Colleges Collective Bargaining Act and Article 7.03 ofthe collective agreement mean that an agreement can only run for the life of the . . collective agreement and then must terminate. The College urges me to include only a mandatory mediation provision. I reject that argument for the reasons given in my decision on the jurisdictional issue. In short, an interest arbitration provision does not extend the Agreement it just determines how a new Agreement, if any, can be finally settled. That reasoning is equally applicable to the College's argument on this point. I am satisfied that I have the jurisdiction to make an Agreement which contains an interest arbitration provision, but should I? In general, and as noted above, I am of the view that I should have good reasons to change the parties' agreement. I .also believe that there are good reasons for interest arbitration in these circumstances, including the difficulty the parties have clearly been 24 having, as evidenced by the Stantec Report, in creating a properly functioning JHSC. Under these circumstances, fundamental change can only make matters worse. However, I am also mindful ofthe College's objection to interest arbitration especially in the Colleges Collective Bargaining Act environment. In Ontario Nurses' Association v. Haldimand-Norfolk (Region) Health Unit [1983] 2 S. C.R. 6 the Supreme. Court of Canada considered this issue in an appeal of the judicial.. _. , review of the decisions by two Boards of Interest Arbitration which imposed in a subsequent collective agreement the right to refer any disputed items to interest arbitration; The Supreme Court rejected the view that to permit the inclusion of such a. - term meant that the parties could no longer resort to collective bargaining including the possible resort to economic sanctions, which in our labour relations system, influence such bargaining. The clause in the agreement which gives me the authority to impose a new agreement is legally similar to those at issue in the Haldimand case. I see nothing in that decision which restricts my jurisdiction to determine that it would be appropriate to include a mediation/arbitration provision as in the current agreement. Nevertheless, Iani mindful of the fact that the Court quoted with apparent favour the decision of Adams in Re York Regional Board of Health and Ontario Nurses Association (1978) 18 L.A.C. (2d) 255 at pp. 264~5: In our view, however, the fact that the parties have been subject to this system since either 1971 or 1973 and the fact that the employer made no 25 objection to the reimposition of the provision last year constitutes such guidance and justifies reimposition of the provision for one. more agreement. Had the provision been in the agreement for a shorter period of time or had the employer either objected to the clause last time or demonstrated a substantial problem with the results of the preceding award, we would have acceded to the employer's request. For the general reasons outlined above we believe that in such situations provisions of this kind should not be continued without the express consent of both parties. .. .- Free collective bargaining is too .important to be done away with . . inadvertently. However, the interest arbitration system at bar has been in place for some considerable time; But we stress that if the parties resort to arbitration for a third time next year and if the employer once again objects to the procedure of arbitration, we are ofthe opinion that a board of arbitration would be most unwise to reimpose this provision once again. The fundamental principles reviewed above 'support this view. Provisions of this kind, no matter how long theyhave been in an agreement, do not mean the parties have agreed to the system of interest arbitration forever. I see no reason why arbitrator Adams's comments are not applicable to the matter b~fore me. I share that Board's concerns about the impact on collective bargaining where, as here, the collective agreement that permits a local health and safety agreement contemplates that such agreements should be for the duration of the collective agreement. However, under all of the circumstances the imposition of interest arbitration for one more Agreement is justified and in my view will assist the parties in maintaining a healthy and safe workplace. Accordingly, I include an interest arbitration provision in the new London JHSC Agreement. . I am also strongly of the view that if it is necessary to appoint a 26 mediator/arbitrator to settle the next London JHSC Agreement that individual would be most unwise to include an interest arbitration provision in that Agreement *** Having regard to the foregoing reasons, a copy of the London Joint Health and Safety Committee Agreement is attached. I remain seized to deal with the issues I have describeoWhichmay remain outstanding and any problems implementillgt,his,f:l~ard. Dated at Toronto the 27th day of February, 2004. Brian McLean 27 . LONDON JHSC AGREEMENT Fanshawe College and Local 110 agree to the following regarding,the structure ofthe London Joint Health and Safety Committee and the time release associated with the work of the committee, task forces and its inspection structure. 1. The London JHSC shall be composed of eight members with 4 appointed by the . ~ . .~ '-' . ;--~"" - college, 2 by Local 109 and 2 by Local 11 O. Local 11 0 shall appoint one committee member and one alternate member with a workload release of9.5 hours per week plus an additional 6 hours per week for the worker co-chair. The college shall appoint up to two management members and two alternate members. Local 109 shall be invited to appoint one committee member and one alternate. Release time and/or compensation, if any, for Locall09'smembers who engage in committee and/or inspection activities are not determined by this Agreement. A quorum of the London JHSC shall be comprised of four, six or eight members with equal representation from the College and the two Locals. 2. As defined by the OHS Act or as determined by the London JHSC, the responsibilities of the worker members include attendance at monthly meetings to a maximum of 3 hours each, preparation for the meetings, research, attendance at Ministry of Labour visits, attendance at testing, investigation of complaints, accidents, incidents and critical injury investigations, as well as investigation of work refusals and participation in task forces, training programs and conducting workplace inspections as outlined in section 4 below. The London JHSC shall make recommendations to the President. 3. The London JHSC shall strike task forces of up to 3 hours per week total (this time allocation being included in the total 9.5 hours per week for London JHSC members). The first task forces shall be ergonomics (1 hour per week) and training (2 hours per week). The task forces may be changed as determined by the London JHSC. The time of three hours per week includes time for preparation, meetings and other activities. Should a decision be made by the 28 London JHSC to add additional task forces that exceed the 3 hour total, the college shall treat this as an additional assignment. The task forces shall make recommendations to the London JHSC. 4. Every month 2 worket: reps and or alternates shall join different area inspection teams to conduct a workplace inspection. 5. The college shall be divided into 10 inspection zones. The College and Local 110 shall appoint one area inspector for each zone. Local 110 may appoint as up to one half of its inspectors members of Local 109. Each inspection team shall be comprised of one worker rep and one management rep~ Higher risk areas - (kitchens, labs, maintenance and academic trades areas) in each zone will be inspected 5 times per year. Non higher risk areas will be inspected a total of2 times per year. The parties shall determine a schedule of inspections. If they are unable to agree to a schedule the issue will be referred to the interest arbitrator. Local 110 members shall have a workload release of 1.25 hours per week. The findings of the inspection team. shall be reported to the London JH~C, area supervisor and the OHSS. The purpose of this group is to perform inspections and to promote health safety awareness in their area. There shall be one co- ordinating meeting per semester of the inspection sub-committee with the London IHSC. Local.l10 inspectors shall receive WHSC certification training at a total cost not to exceed $2000. 6. Should there be more than one morithly meeting of the London JHSC, or should the regular monthly meeting exceed 3 hours, the additional time plus equal preparation time shall be regarded as an additional assignment. 7. The term of this agreement shall be identical to the term of the academic employees collective agreement, which is negotiated following the expiry ofthe September 2001- August 2003 collective agreement. A review ofthe London JHSC Agreement shall be conducted by the London JHSC. The London JHSC shall make recommendations to continue, change, or dissolve this Agreement to the parties by the end of its term. Where agreement cannot be reached by the London JHSC, the parties will meet and.attempt to resolve the issues. If the parties cannot agree then the matter shall be referred to mediation/arbitration. If a 29 mediator/arbitrator cannot be agreed upon, either party may request that the CRC (or its successor) appoint one.