HomeMy WebLinkAbout1977-0162.Jamieson.78-05-25.- _:
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162/77
CROWN EMPLOYEES 416/598 0688 Suite 2100
GRIEVANCE SETTLEMENT
BOARD . .
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: Ontario Public Service Employees Union
(Jamieson, Bell, Cooper, Rowe, Marshall,
Wood, Jermey)
And
The Crown in Right of Ontario
Ministry of Community and Social Services
Before: J. R. S. Prichard
E. A. McLean
I. K. Levack
;;!i;;;hairman
Member
For the Grievor:
Mrs. L. Stevens, Grievance Officer,
Ontario Public Service Employees Union,
1901 Yonge Street;.
Toronto, Ontario
For the Employer:
Mr. A. R. Rae, Personnel Services Branch,
Ministry of Community and Social Services,
Toronto, Ontario
Hearing: Suite 2100, 180 Dundas St. W.,
Toronto, Ontario
April Zlst, 1978
r
lb0 nunaas street west
TORONTO, Ontario
M5G lZ8
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I
The parties agreed that the seven grievances raise the same
issue and that they would be bound by the decision in the first of
the cases. Therefore, we heard evidence relating only to the grievance
of Mr. Bell but our decision is applicable to the seven grievances
before us.
II
The issue presented by the grievance is whether certain work
required of the grievor, a plumber at the Huronia Regional Centre,
is properly classified as "on-call duty" or as “stand-by:&@“.-The
resolution of this issue turns on the proper interpretation of
Articles 15'and 16 of the working condition collective agreement.
The relevant provisions are:
ARTICLE 15 - STAND-BY TIME
15.1 "Stand-by time" means a period of time that is
not a regular working period during which an
employee keeps himself available for immediate recall to
work.
15.2 Stand-by time shall be approved, in writing,
by the Deputy Minister or his representative
and such approval shall be given prior to the time the
employee is required to stand-by, except~in circumstances
beyond the Employer's control.
15.3 Where an employee is required to stand-by~for
not mere than the number of hours in his normal work day,
he shall receive four (4) hours pay at his basic hourly
rate.
15.4 Where an employee is required to stand-by
for more than the number of hours in his normal work
day, he shall receive payment of one-~third (1/3rd) of
the stand-by hours at one and one-half (l-4) times hi.+
basic hourly rate.
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ARl'ICLF 16 - ON-CALL DUTY
l6.1 "On-call duty" means a period of time that is
not a regular working period, overtime period,
stand-by period, or call back period, during which an
employee is required to be reasonably available for
recall to work.
16.2 On-call duty shall be approved prior to the
time the employee is required to be on call.
16.3 Where an employee is required to be on call
he shall receive twenty-five cents (256) per
hour for all hours such employee is assigned to on-call
duty.
The grievor claims that the required work should be
classified as "stand-by time" in that he alleges that he is required
to keep himself “available for immediate recall to work". The
employer argues that the work is properly classified as "on-call
duty" in that the grievor was only requiredl'"to be reasonably
available for recallLto work". The grievor seeks the differential
compensation paya,b)e for stand-by time for the time already worked
and a declaration that in future the work should be paid.at.the
stand-by rate.
III
The Huronia Regional Centre employs three plumbers and
four. electricians. The grievance arose from a decision taken by
the maintenance supervisor, Mr. Buller, to initiate a systematic
procedure for ensuring that a plumber and an.electricianwould. be
available for recall to work outside of normal working hours.: The
plumbers and electricians normally work Monday~to Fr~iday, 8fOf~a,m.
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to 4:30 p.m. Therefore the recall system was designed to meet the
needs of the Centre between 4:30 p.m. and 8:00 a.m. on weekdays'and
24 hours per day on the weekends.
Mr. Buller decided to rely on the on-call duty provisions in
Article 16 of the collective agreement. Under this scheme the grievor
would be on-call for a week at a time with the responsibility being
rotated weekly among the three plumbers, Similarly, the responsibility
would be rotated among the four electricians.
The requirements of an employee serving on-call duty were
explained to the grievors in a series of meetings in July and August,
1977 and the system was initiated on August 9, 1977. The requirements
were subsequently setout in a memorandum from Mr. Buller to each of
the affected employees on August 24, I977 (Exhibit #l):
Re: On-Call Duty
I wish to clarify the requirements of an employee during
on-call duty, so that there is no confusions as to what
is required in the event of an after-hours call back.
Each employee will be issued a pager for the duration
of his on-call duty which shall be considered as an
assist to maintain contact with the Facility.
It-is the employee's responsibility to advise the
Switchboard of where they may be contacted in the
event they are called back to work.
The employee shall respond to such call-back in a
reasonable length of time, which has been defined
as two hours.
Trusting the above information will assist you.
(Signed)
G. R. Bullel
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As the memorandum indicates,the employees while on-call
are expected to keep the Centre's switchboard advised of where
they may be contacted in the event of a call-back to work and are
then expected to return to work within two hours. The employees
have been issued pagers to facilitate rapid comnunication between
the Centre's switchboard and the employees when the employees are
not near a telephone. The pagers have a range of 15-20 miles. At
the time the system was introduced Mr. Buller indicated that the men
could arrange to switch shifts with one another but only with the
prior approval of Mr. Buller himself.
From the point of view of the employer, the on-call system
has worked well. It has assured the Centre of access to a skilled employee
whenever an emergency arises at the Centre. The procedure at the
Centre is that when a problem arises after hours the boiler room
engineer is notified and he inspects the problem to see whether or
not he can remedy the situation himself. If he determines that he
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cannot, he then deems the situation an emergency and tells,the
switchboard to contact the on-call plumber or electrician, as the
case may be, and to ask him to return to work. In the great
majority of cases - probably 90 percent - the tradesman who is called
responds immediately and is back at the Centre in under thirty minutes.
It should be noted that Article 14 of the agreement assures the
employees of a minimum of four hours pay at time and one-half of the
basic hourly rate'for each time he, is called back to work.
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IV
As was stated at the outset, the issue to be resolved is
whether the time the grievors spend-awaiting recall to the work site
should be classified as "on-call duty" or "stand-by time". The
importance of the classification lies in the fact that while on-call
is compensated at 25c per hour, stand-by is compensated at essentially
one-half the basic hourly wage.
The employer argued that the memorandum of August 24 and
the preceding explanatory meetings made clear that the ,grievors are
not required to keep themselves "available for immediate recall to -
work" (stand-by definition) but rather are only required to be
"reasonably available for work" (on-call definition). The employer argued that
the employees have.clear ~instructions that they have up to two hours to return t)
work and that whi~le it is commendable that the employees respond more
quickly,they are not required to do so. In the employer's view, the
two hour period permits the employee to go to a movie, go shopping,
finish dinner and to engage in other similar activities without undue
interference. The pager is designed to facilitate, not restrict,
these other activities as it complements the normal system of
maintaining telephone contact with the Centre. While the rate of pay
for on-call duty may not be generous, it is the employer's position
that the collective agreement determines the remuneration and that the
agreement should be changed during negotiations if the employees find
it unsatisfactory.
The union takes a substantially different view of the system
.
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of recall instituted by Mr. Buller. Tt argued that while in form the
system may only require the grievors to be reasonably available for recall
to work, in substance they are required to be immediately available.
The union argued that the key element of the system is the requirement
that by means of telephone and pager the employees must maintain
constant contact with the Centre. The union described the two hour period
allowed for return as a "red herring" designed to distract attention
from the contact requirement and that the two hour period is of little
or any substantive value to the grievors.
The grievors: pointed..out that as skilled professionals with a
concern for the physical integrity of the Centre and the welfare of the patients
the two hour period is of little relevance once an emergency has been
brought to their attention. The rapid response times are some
indication of their professional commitment and are, in the employees'
view, evidence that the two hour period is a matter of form, not
substance. The union '5 in effect argued that the employer has been
able to take advantage of the employees' commitment to~obtain innnediate
recalls while disguising the scheme with the two hour period so as
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to be able to classify it as on-call duty.
The employees argued that the system is so restrictive of
their time while awaiting recall that it must be classified as stand-
by time. They'pointed out that it has significantly restricted their.
freedom of movement, prevented them from fully utilizing their
cottages which do not have telephones, and forced them to schedule their
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private lives around.their recall responsibilities, all for the sake
of a very modest rate of pay. In sum, the employees argued that the
system amounts to requiring them to keep themselves available for
immediate recall to work and as such the time should be classified
as stand-by.
We have considerable sympathy for the employees' view;
the system in its announced form is. restrictive of the employees
and there is no doubt that it has reduced their ability to utilize
fully their free time. Furthermore, we understand that the critical feature
of the recall system from their point of view is the contact
requirement,not the two hour period. In many cases, it will be
of little solace to the employees to be informed that there is an
emergency but then to be reminded that they have two hours to
respond.
The difficulty with the I'-' union's position, however, is
the provisions of the collective agreement. By providing both
Article 15 and Article 16, the parties have indicated their in-
tention to create two different statuses. To give the agreement
integrity in its interpretation we must recognize that by creating the
category of on-call duty, the parties must have intended to restrict
the application of stand-by time in Article 15 to situations where
there is little flexibility in the requirement that the employees
be immediately available. The on-call duty provisions must then
contemplate a relatively wide array of arrangements for ensuring
that employees will be available for recall.
Unfortunately little assistance on the proper interpretation
. .
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of contact. The initial contact by tel~ephone or pager will almost
always be as soon as possible after the emergency or trouble arises;
that is the very nature of a recall system. Therefore, the classification
of the system must include a consideration of all the circumstances
including the time allowed employees in responding. In this regard,.
we were also influenced by the fact that while the situations at
the Centre requiring a call-back are deemed to be"emergencies", in
many cases "trouble situations" might be a more accurate description.
The second factor causing us to hesitate was the absence
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of evidence as to the working conditions of persons classified as on
stand-by time while working at the Centre. While there was undisputed
testimony by Mr. Bell that certain counsellors at the Centre receive
stand-by pay, there was no evidence of what is required of these
counsellors. Such evidence could readily be adduced by management to
contrast it with the system in question in this case. While the failure
to do so is not fatal to the employer in this case, it may well be in
some future case.
The third factor which caused us to hesitate in reaching our
judgment was the disparity between the written memorandum of instructions
and the oral evidence offered by Mr. Buller. We have accepted Mr.
.~Buller's testimony that the system is more flexible than the memorandum
may imply and that it has been a problem of communication between him
and the employees which has led to their failure to understand the
full range of flexibility available to them. However, it is important
that we record the flexibility that Mr. Buller has testified to in
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of the respective scope of Articles 15 and 16 can be derived from
dictionaries, arbitral authority or judicial authority. Indeed,
case authority may serve to confuse rather than clarify the Articles
in that in numerous situations "immediate" has been held to mean
"within a reasonable time". (See, for example, Page Y Pearce' (1841)
8 MG W 677 at 678; 37 Halsbury's Laws (3rd edn.)l03). In addition,
we are not aware of any previous case calling for an interpretation of
these particular provisions.
In our view, each case of this kind will require a judgment
based on a consideration of all the relevant circumstances and in
recognition of the fact that the parties have created the two separate
statuses. The particular arrangements will vary from workplace to
workplace and a decision in one setting may not be readily transferable
to another. In this case, after some considerable hesitation, we
have concluded that the arrangements are properly classified as on-call
duty as defined by Article 16 and that the grievance must therefore be
dismissed.
Our hesitancy in reaching this conclusion has been caused
by three factors. First, even in its most favouiable 1ight;'the
recall system instituted by the employer comes very close to the
dividing line between stand-by and on-call. We consider the system
to be relatively restrictive and that in substance it nearly amounts
to requiring the employees to be innnediately available for recall to
work. At the same time, however, we recognize'that any system of
recall will necessarily involve an element of immediacy in the means
.
, ’
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that without it our conclusion would very likely have been different.
Furthermore, if that flexibility is not available in future, we would
expect that the outcome of a new grievance would very likely be
different from this one. In particular, Mr. Buller has indicated
that the two hour period need not be strictly enforced and that
extensions of it up to three or three and one-half hours are possible
if the employee.informs the Centre's switchboard in advance of his
location and his unavailability. Second, Mr. Buller indicated that
contrary to his initial instructions, the employees are free to
arrange to switch responsibility among themselves without prior
authorization by Mr. Buller as long as the switchboard is informed
of the switch. Third, some reasonable arrangement can be made
regarding charges for long distance calls required to maintain
the necessary degree of contact between the switchboard and the
employee. Fourth, the pager is designed to assist the employee by
maximizing his freedom of movement during his on-call periods but it
need not necessarily be carried at all times as long as the employee
makes some reasonable arrangements for ready contact with the Centre's
switchboard.
In sum, Mr. Buller stressed the flexibility in the system
and we have relied on this flexibility in reaching our decision.
Furthermore, the flexibility will be of critical importance in the
sumer months during which the employees find the restrictions on their
freedom o! movement to be particularly burdensome. We hope that the
hearing has contributed to a better understanding and~definition of the
system and that in future it will be more satisfactory for both parties.
We are aware that part of the difficulty with the system in the past may
relate to the frequency of scheduling of the on-'
call duty and we understand that that problem is the subject
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of a separate grievance. Without in any way judging the merits of that
matter we are hopeful that the resolution of that grievance will contribute
to the satisfactory application of on-call status.
In conclusion, therefore, the grievance is dismissed. This
dismissal should, however, be read in light of our full decision in
that it relies substantially on the assumed flexibility of the recall
system.
Dated at Toronto this 25th day of May, 1978.
7i-Rdbe ?.; a~
J. Robert S. Prichard
Vice-Chairman
I concur
E. A. McLean
Member
I concur
I. K. Levack
Member