HomeMy WebLinkAbout1978-0001.Jermey et al.78-07-17l/78
IN THE MATTER OF AN ARBITRATiON
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Eefore
THE GRIEVANCE SETTLEMENT BOARG
Between:
Before:
Fork the Grievor
For the Employer
Hearing
Messrs. Jermey, Cooper, Bell, Marshall - The Griever
Vernon & Rowe
And
Ministry of Community and Social
Services
- The Employer
Professor M. 5berts - Vice-Chairman
Mr. G. K. Griffin - Member
Mr. R. Cochrane - Member
Mrs. L. Stevens, Grieyance Officer
Ontario Public ServiceEmployees Union
1901 Yonge Street
Toronto, Ontario
Mr. A. R. Rae, Personnel Services Branch
Ministry of Cormnunity & Social Services
5th Floor, Hepburn Block
Queen's Park, Toronto
June 15th, 1978
Suite ZiOO, 180 Oundas St, West
Toronto, Ontario
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The grievors are plumbers (Messrs. Marshall and
Bell) and electricians (Messrs. Jermey, Cooper, Rowe and
Jamieson) in the maintenance department of the Huronia
Regional Centre. Their grievance is the sec~ond to come
before this Board as a result of the institution in August
1977 of an On Call Duty Schedule in the maintenance depart-
ment at the Centre. Dealing with the first grievance,
the Board held in decision Re X2/77 OPSEU (J~~~EWII et al) and
crown/Ontario fCommunity s social services] that the On Call
scheme was governed by Article 16 of the Collective Agreement,~
dealing with "On-Call Duty" rather than by Article 15,
dealing with "Stand-by Time." Under Article 16.3, an
employee is to be paid 25c per hour for every hour of
on call duty (except when actually called back and working);
under Article 15, stand-by duty is to be paid either at the
basic'hourly rate, or at one-third the basic hourly rate,
depending on how long the employee is required to stand-by.
Except in emergency situations;stand-by time requires the
approval in writing of the Deputy Minister.
In this grievance, the plumbers and electricians
call into question not just the classification and rate .
of pay of the On Call Duty Schedule, but its essential
validity. They allege that it is in violation of their
rights under Article 8 of the Collective Agreement, which
states:
There shall be two (2) consecutive
days off which shall be referred to
as scheduled days off, except that
days off may be non-consecutive if
agreed upon between the employee and
the Ministry.
Basically, because the On Call Duty Schedule requires each
person to be, in the words of Article 16, "reasonab1.y
available for recall to work" every third (plumbers) or
fourth (electricians) week, including weekends, the
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grievors contend that it denies them their regularly
scheduled days off, Saturday and Sunday, whenever they
are on call. As a result, in their view, it offends the
Collective Agreement and should be discontinued.
The issue presented is thus the simple, if
far-reaching one, of whether the practice adopted in
the maintenance department is permitted by Article 16
notwithstanding Article 8. The representatives of
both grievor and employer presented to the Board an
agreed statement of facts and confined their oral
presentation at the hearing solely to questions about
the interpretation of the Collective Agreement. This
approach was ideally suited to the nature of the case,
and all concerned are to be warmly congratulated for
using it.
The grievors argued that Article 8 was clear
and unambiguous, in stipulating two consecutive "days off"
during each week. There was no exception contained in
Article 8 itself which would permit incursions into days
.~ off for on call duty; the only exception .related to permis-
sion to have non-consecutive days off. While admitting
that provisions,for overtime (Article 13) and Cal] Backs
(Articlq:l4) could conceivably cut into the days~ off
provision, the grievors argued that thel'se~riousness of
the incursion was compensated by the premium pay provided
by Articles 1.3 and 14. Reference was also made to the
Holiday Pay provisions of Article 19, which allow time
and one half with a minimum credit of hours for working
on a recognized holiday. The grievors argued that it would
be unreasonable to interpret Article 16,.as overriding
Article 8 so that scheduled time off would be worth only
2% per hour, on an:on call 'situation whereas overtime,
holidays, and call-backs are valued at.time and a half.
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The grievors also pointed to Article 11, providing for
a shift premium for hours worked between 5,:OO p.m. and
7:OO a.m., and Article 23, allowing credits for travelling
time outside working hours, as further illustrations of
the Agreement's intent to safeguard the leisure time of
employees. This respect for leisure time, they argued,
was violated by the employer's On Call Schedule and the
Schedule was accordingly in violation of the agreement.
The grievors maintained'that Article 16 should be read
subject to the guarantee of two days off in Article 8,
so that on call duty could be required on regular
working days but not on scheduled time off. In this
case, the On Call Schedule required that a plumber and
an electrician be reasonably available one week at a time
for recall from 4:30 p.m. to 8:00 a.m. on week nights
and on weekends from Friday at 4:30 prm. to Monday at
8:00 a.m. According to records filed as exhibits 14 to
19, a considerable proportion of the actual call-backs
during the on call periods occurred on the weekends rather
than in the evenings.
The employer argued that.Article 16 brovided ample‘
authority for the on call practice it had instituted.
Nothing in the Agreement, it argued, prevents such a scheme.
This argument focused on a number of points. It was
contended that Article 16.3 did provide a type of 'premium,'
pay for on call, of 2% per hour. If the employee was
called back, Article 14 would govern time actually worked,
providing for a minimum period of four hours at time and .~
a half. It was also argued that the on call employee does
have Saturday and~,Sunday "off" in an on call week; the
requirements for an on call worker is to be "reasonably
available" for recall, and reference was made to some
flexibility in .arrangements for.contacting and, bringing in
employees. The employer also stated that no employee had
been disciplined for refusing to come in response to a call,
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a feature of its scheme which it regarded as important.
It did not, however, go so far as to argue that the
employer could not discipline employees who-~were on call
and refused to come in to work. Nor does 'it appear from
the materialfiled or from argument that the employer
has clearly communicated to employees their ability to
refuse to come in to work.
The employer's argument also dealt with the
language of Article 16 itself, which defines "on call
duty" as
a period of time that is not d
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.
It was argued that this language is wide enough
to cover weekends or other scheduled time off as well as
evenings.
It is with some-reluctance that this Board accepts
the contention of the employer. There is no definition in
the Collective Agreement of "regular working period",
which seems to be one of the key phrases in Article 16.
It is used in only one other place that we could discover.
Article 13 defines "overtime" as
an authorizeh period of Work
calculated to the nearest half
hour and performed on a scheduled
working day in addition to the
regular working period, or per-
formed on a scheduled day(s) off.
This appears to suggest that a "regular working
period" cannot occur on a scheduled day off, but only on a
scheduled working day.
In the context of Article 16, it could indicate that on call
duty in "a period of time that is not a regular working :
period" could not, therefore, ever take place on a scheduled
day off. While this interpretation would tend to support the
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grievors' argument, we do not feel that it is, in the
end, available. Article 16 defines on call duty with
reference not only to "regular working period" but also
with regard to overtime, stand-by and calls-back periods,
all of which could occur on a seheduled day off.
This seems to bring scheduled days off within the reach
of Article 16 and the on call provision. It would seem,
therefore, that the employer can support its plan with
reference to Article 16, in spite of the provisions of
Article 8. Furthermore, although 25& per hour may be a
very low premium for leisure time, it is nonetheless some
recognition of the cost of invading employee leisure and
cannot be said to be.at odds with this basic approach of
the Agreement.
Assuming that the employer maintains some flexi-
bility and generosity about employees who cannot comply
with a call into work during anon call phase, it cannot
be said that the employee is deprived of regularly sched-
uled days off. The critical element does seem to be the ~,
nature of employer response to requests not to be scheduled
for a particular week (or weekend) and to refusals to respond
to a call during the on call period. The tighter the control
the employer seeks to exert on the employee's disposition of
leisure time the closer the employer may come to depriving
the employee of rights under Article 8 in a particular case.
It is not inconceivable that employer discipline of an employee
for refusing to be scheduled, or refusing to respond, could
givq rise to a legitimate grievance, depending on the circum-
stances.
The employer offered a number of reasons why it
had been necessary,to institute an On Call Schedule in the
maintenance department, when all other departments continue
to operate on a voluntary on call system: i.e. the switchboard
calls all persons in the department until someone is found
who can come in. The employer also explained why, in its !'
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view, it was difficult to arrange for.some people in
the maintenance departmen~t to work, on a regular basis,
over the weekend (say, Thursday to Monday each week).
Without criticizing the validity of these reasons, or
evaluating them in detail here, we would note one thing
that seemed to us conspicuous by its absence: signs of
consultation with the maintenance employees not just about
whether the on call system was necessary but whether it
was the best possible in the circumstances and how it
could be made to work more conveniently (perhaps through
volunteers) if it was agreed to be neces'sary. The
system seems to have caused a lot of bitterness, witness
the generation of two grievances. Consultation might, we
hope, alleviate some of. these difficulties. If consultations
between employer and employees were not successful at this
time in resolving these conflicts, then one would hope that
an occasion to do so would arise in formal contract negotiations,
should the need for a solution be as strongly felt at that time.
This Board thinks that the on call system is an unfortu-
nate, if strictly speaking permissable, imposition on employees.
While it may be true that an on call employee can refuse to
attend to a particular call and still be regarded as "reasonably
available for re~all,'~ it is also true.that an on call require-
.ment of one weekend in three or four - or more frequently where
illness or vacation disturb the roster - is a substantial
constraint on the individual employee. That it is such a
constraint would, it is hoped, be taken into account in inter-
preting "reasor~able~' availability for recall. Unfortunately,
the question of the frequency of required on call duty did not
come up for consideration in the prior grievance arising from ' ' ~.
this scheme. Vice-Chairman Prichard's panel considered only
whether the employee was required to keep himself at any one time
"available for inmedidte recall" (Article 15) or "reasonably
available for recall" (Article 161.
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Although the wording of Articles 15 and 16 almost
,dictates that the issue be considered this way, one loses
an important dimension ofthis problem by not viewing the
demands made on the employees over time as well as in
particula~r instances. The existence of regularly recur-
ring requirements for on call duty, coupled with the much
lower rate for on call than for stand-by duty, the absence
of a requirement of Deputy Ministerial consent for on call
duty, and the omission of "immediate" from the "recall to
work" provision of Article 16 all would suggest the wisdom
of flexibility and generosity in interpreting the phrase
':reasonably available for recall" in Article 16. Given its
absence from Article 15, the term "reasonably" can‘be regarded
as a material one in Article 16. -The employer's communication
to employees of its readiness to be flexible about reasonable
availability is, in turn, an important element in any finding
that on call duty does not, in fact, unduly impinge on an
employee's days off. Because we were not, in this grievance.
dealing with employer discipline of an employee for refusing
to respond to a call-back during an on call period; and
because we had no evidence before us to contradict, as to
these grievors, the employer's assertion that no one has
been disciplined for refusing to respond, we could not enter
into's consideration of the exact balance that must be
maintained between employee freedom to use scheduled days
off and employer rights under Article 16. It is for this
reason, and with an appropriate caveat, that we,find the
employer On Call Schedule as described.to us to be permissable
under Article 16.
Dated at Toronto this 17th~day of July, 1978.
Mary Ebe s Vice-Chairman
I concur
G. K. Griffin Member
I co*cu.r
Ron Cochrane Member