HomeMy WebLinkAbout1985-0952.Bolton.87-09-16IN THE MATTER OF AN ARBITRATION
UNDER
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
BEFORE
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN :
OPSEU (S.Bolton)
BEFORE :
FOR THE GRIEVOR:
FOR THE EMPLOYER:
HEARING:
- and -
THE CROWN IN RIGHT OF ONTARIO
(Ministry of Revenue) .
J.E. Emrich Vice-Chairman
L. Robbins Member
M. O’Tools Member
J. Roland
counoe1
Gowling and Henderson
Barristers and Solicitors
S. A. Currfe
Staff Relations Officer
Humail~kesources Secretariat
0952f 85
Griever
Employer
Tne grlevor, i'ls. Snirley ~c?ron, &as classified as a Clerk 3
General with the Assessment Division of the Ministry of Revenue in
Brockvllle at the tlme the grievance was lodged on September SO, 1985.
Since 1981 the grievor has been working with visual display terminals
(V.D.T.) for word processing., In 1981 the Mohawk system was in .place,
but on July 8, 1985 the Employer converted to a different system known
as DASYS which did not have an anti-glare screen on the V.O.T. The
grievor stated that her job duties require her to work on a V.D.T. for
more than two hours and up to seven hours a day on a regular basis.
While workfng on the new OASYS system, the grievor began to experience
symptoms of eyestrain and consulted her ophthamologist, Dr. Edwards.
He prescribed glasses with anti-tint glare and~some correction for
a(yopfa and-astigmatfsm, The grlevor claimed reimbursement from the
Employer for the full cost of the glasses of $199.50. The Employer
took the position that vlsion care benefits were limited to $60
pursuant to Article 44.3 of the collective agreement and that amount
was paid to the grievor. The Union contends that the Employer is
liable to reimburse the grievor for the balance of the full cost of the
glasses pursuant to its obligations under Article 18.1 of the
collective agreement.
The relevant provisions of the collective agreement are the
following:
18.1 The Employer shall continue to make reasonable provlsions
for the safety and health of its employees during the
hours of their employment. It is agreed that both the
Employer and the Union shall co-operate to the fullest
extent possible in the prevention of accidents and in the
reasonable promotion of safety and health of all
employees.
I
13.2
18.3
18.4
18.5
18.6
18.7.1
:
The Employer shall provide safety eqiipment and
protective clothing where it requires that such shall be
worn by its employees.
The purchase of safety shoes or boots for on-the-job
protection of the purchaser shall be subsidized as per
the applicable practice in each ministry.
The current practices relating to the supply and
mafntenance of apparel for employees shall continue
during the term of thfs Agreement, subject to any changes
which may be entered into between the parties at the
local or minfstry level.
After each hour of continuous
operator shall be relieved of
ten (10).minutes.
operation of a VDT, a VDT
such duties for a period of
At the beginning of assignment to a MT and annually
thereafter, a VDT operator who Is regularly required to
operate a'VD1 for two (2) hours or more per day shall be
required to undergo an eye examinatfon by an optometrist.
or an ophthalmologist who is qualified to conduct the
following tests:
(a) unaided vfsuel acuity ('letter chart test)
Ib) refractive ffndlngs
(cl corrected visual acuity
Id) amplitude accomnodatfon
(el suppression
(f) muscle balance (near, one metre, distant)
(g) slft lamp biocnicroscopy.
The cost of the eye examination, not to exceed the OHIP
fee schedule for such examinations;shall be borne by the
Employer, and the VDT operator shall authorize release of
a copy of the examination report to the EmplOYer.
A pregnant VDT operator may request reassignment from VDT,
duties for the remainder of her pregnancy by forwarding a
written request to the Employer together with a
certificate from a legally qualified medical practitioner
certifvins that she is Dreqnant.
18*8 ..Video display termix: work stations shall be equipped
wrth tables or stands for the terminal to permit it to be
at a height appropriate to the circumstances of its use
and the seating avaflable for the operator. The chair
provided shall have a seat which is adjustable in height,
a back rest which is adjustable in height, and a foot
rest where necessary to accommodate a particular
operator. Where appropriate to the nature of the work,
paper stands or work'stands shall be provided.
44.3 Effective-September 15, 1982, the Employer agrees to pay
50% of the monthly premiums for vision care and hearing
aid coverage, under the Supplementary Health and Hospital
Plan, wlth the balance of the monthly premiums being paid
by the employee through payroll deduction. This coverage
fncludes a $10.00 (single) and $20.00 (family) deductible
in any calendar year and provides for vision care
(maximum $60 per person,in any 24-month period) and the
purchase of hearing aids (maximum $200 per person once
only) equivalent to the vision and hearing component of
the Blue Cross Extended Health Care Plan.
Mr. Chase Casagrande is Field Operations Coordinator with the
Assessment Division of the Ministry of Revenue. He was responsible for
the conversion to the OASYS system which was Implemented In the
Brockville Assessment Office in the months from May to July, 1985.
Training on the new system was initiated in May and the system was
operational fran July 8, 1985. The traInin programme included
information concerning adjustments which could be made to the V.O.T.
to reduce glare through the controls for brightness and contrast and
for the angle, tilt and height of the screen. Mr. Casagrande had
each office reviewed for placement of the equipment in respect to
-windows and the provfsfon of proper tables and chairs to reduce the
discomfort for the individual operators arising from such factors as
posture and glare. He added that follow-up after Initial
implementation was conducted and memos were sent out advising of the
.
availability and method of ordering such supplementary aids as
anti-glare shields and lead aprons. The following memo was sent to Mr.
Baxter who had handled implementation of OASYS in the Brockville
office:
I realize that as of yet OASYS has not been implemented in
all the Reglonal Assessment Offices. However, I would like
all Assessment Commfssioners to note the following: -
Be advised that from now on purchases of antj-glare
screens, lead aprons or any other peripheral equipment
which may be used in conjunction with OASYS must first be,
authorized by Mr. Earl Winter, Director of Assessment
Field Operations Branch. *
This wfll not only give us a chance to Investigate the
product but will also give the opportunity to possibly obtain
volume discounts as well as assess the suppliers.
In fact, the grievdr's supervisor at the time, Mr. Sherman
Jackson, was not aware of the availability of antl-glare screens untfl
#ovember, 1986 when the matter was raised by the Unfoh's Shop Steward
and Occupational Health and Safety Representative, Mr. Ronald Miller.
Shortly thereafter, Hr. Jackson ordered the screens and they were put
in place on the OASYS V.D.T.'s In November 1986. Hr. Jackson holds the
positfon of Data Services Manager at the Brockvflle Assessment Office.
He explained that the Mohawk system in use prior to conversion to OASYS
came equipped with an anti-glare screen. He could not recall any
specific complaints being raised by the clerks at the Brockville office
concerning problems with glare with the OASYS V.0.7.. except with
respect to the location of one terminal which had been placed adjacent
to a window. The terminal was moved from this locatlon and to reduce
the glare problem. He was able to recall a meeting on September 5,
1985 when he met with the grievor dnd Mr. Miller concerning her demand
. until she :,,: to oe relieved.from assignments on the OASYS V.D.1
received her new glasses pursuant to 'Article 23(3a) of the Occupational
Health and Safety. Act. Mr. Jackson acceded to the grievor's position
and asked her to provide medical evidence to substantiate her refusal
to work on the V.D.T. Once the grievor obtained her new glasses, she
recommenced.V.D.T. assignments.
The grievor noticed that after she began working on the OASYS
system, she began to experience blurring of vision and persistent
headaches, even after making adjustments for brightness, contrast and
positfonlng of the screen which she had been taught in training. She
explained that she mentioned this at some point to Mr. Jackson along
with other clerks, but she admitted that she did not raise a specific
complaint to him in his,office until September 6, 1985. She decided to
consult the ophthalmologist who has cared for her since childhood, Dr.,
G. Keith Edwards of Ottawa on August 30, 1985. Dr. Edwards completed
the Ministry's standard Pow Eye Examination Report on that date, which.
was filed In evidbnce. On September 16th. 1985, he forwarded a further
report to Ms. Bolton In response to Hr. Jackson's request at the
September 5th. 1985 meeting with Ms. Bolton and Mr. Miller. The
relevant portion of the report reads as follows:
Thank you for your letter - the following is a report on your
eyes.
- Patient complains of eye fatigue and intermittent blur
while working on V.D.T.
- Patient has one weak eye - some astigmatism in the other
eye.
- Glasses were prescribed with tint and anti-glare coating to
reduce symptoms Of eye strain while working on the
V.D.T.
Gn Septem&r Z, 1965,~ the grievor filed her request for
reimbursement for the full cost of the tinted glasses prescribed by Dr.
Edwards of $199.50, less the $60 payment for vision care under the
Supplemental Health and Hospital Plan. .Mr. Jackson repli,ed in writing
on September 25, 1985 that there was no provision for canpensation
other than that provided under the Supplemental Health and #ospital
Plan. Following this reply, the grievor launched her grievance.
A further medical report from Dr. Edwards was filed at the.hearing
dated October 24, 1986 which provides a more complete history and
aidgnosis. The report was duly served in accordance with the
provisions of s.52 of the Evidence Act. The relevant portion of the
report reads as follows:
Hiss Bolton has been seen by me intermittently since Jan.
1964. As a child she presented with an ocular condition
called anisometropia In whjch visual acufty in her R eye was
weak. She was treated by use of spectacles and occlusion of
her dominant eye to increase visual efflcfency of her R eye.
In her teens she did not wear glasses. '
Miss Bolton was last seen by me Aug 28/85 on referral fraa
her family M.D. - Dr. Jones of Kemptville, Ont. At this
visit she complained of eye fatigue and intermittent blurred
. vision while working at V.0.T terminal. Dn examination of
her eyes at that time we found the following refractIon:
R eye - 225 + 550 x 90. L eye - ,025 + 050 x 180 giving
visions of 20/60 R and 20/20 L. This prescription means that
she is short sighted with astigmatism in the R eye and mild
degree of the myopia and astigmatism in the L eye. Assuming
her symptoms which occurred at V.D.T were probably related to
glare and reflections I ordered a balance lens for R eye and
a mild correction for short sight and astfgmatlsm L eye -
thts prescription was to contafn anti-glare tint for use
while working on the V.0.T as this type of help seemed to
relieve other patients with V.D.T. related symptoms. 1 have
not seen Miss Rolton since Aug. 85 and thus do not know if
her symptoms were relieved.
With regards to V.D.T.'s and eye problems in general there
have been many studies by various professional and scientific
groups. I will attempt to briefly summarize these voluminous
reports. The American Academy of Opthalmology has issued a
statement on V.D.T. The Academy does nit feel that organic
eye pathology result from V.D.T. exposure. The emissions are
well within international safety standards.
Aside from the question of pathology is the .question of
physical discomfort. A number of studies have suggested that
V.D.T. operators may experjence dfscanfort as a result of
their work. These complaints include visual discomfort,
backaches and muscular pain associated with posture. As is '
true in any workplace attention to type of lighting and
reflectance levels of work surfaces is important to improve
employee comfort and efficiency. The Academy states that
there is the capability to reduce ocular fatigue by using
filters or tints in eyeglasses or by coating the V.D.T.
screen wfth an ultraviolet and infrared screenfng material.
They state that further research in thfs area Is indicated.
The Canadian Opthalmological Society bulletin on V.D.T. gives
similar information and stresses the need for well designed
equipment, variety of tasks while working, and good
illumination. The Society also emphasltes that there may be
other factors fn creating the symptoms in V.D.T. workers such
as stress and general physical condition.
A report from the Dept of Health and Human Services Division
of the U.S. Food and Drug Administration suggests that the.
complaints of the V.O.T. worker may.be ,in the field of
ergonomics, i.e. the work environment, the demands of the job.
and the workers' physlcal condition. Studies have identified
the following ergonomic factors that may have a bearing -'
room lighting, glare from display screens, incorrect
equipment and layout.
With regard to filters placed over the V.D.T screens the
following is data from the Convnittee on vision put out by the
National Research Council 1983. They really did not come to
any final conclusion. They felt general filters are most
effectfve in reducfng dfffuse reflections rather than
specular reflections. This is unfortunate because specular
reflection cause the greater loss of contrast and probably
;o;t;lb;te more to the problems encountered in viewing
. . . . Filters do reduce glare land reflections to some
degree. Because their effectiveness is limited, filters
should be considered as a supplement ahd not as a repl,acement
for control of lfght and reflecting sources. There are trade
offs In the use of screen filters since some slightly reduce
glare but at the same time can reduce image quality.
In conclusion there are no hard and fast answers to the
visual problems associated with V.D.T. use. As a clinical
ophthalmologist and not a research expert I see many patients
who relate visual symptoms to V.D.T. use. These complaints
are seldom explained on the basis of any single factor. Many
i2,tt$ks are involved - for example quality o< er+ipaen:,
general health of the individual, ocular status, work stress,
illumination, reflections, etc., etc. Each patient has to be
individualfzed - in some cases a screen may suffice - in
others correction of reflective error and tinted lens - in
others modffications of room illumfnatfon - in others variety
in work load, etc.
The grievor found that the correction for refractive error with
tint and coating to reduce glare provided by her new glasses were
sufficient to alleviate her discomfort. She no longer suffered from
headaches and blurred vision. Although she tried to work without her
glasses once the anti-glare screens were.provided in November, 1986,
she found that.her symptoms returned. Ms. Bolton consulted Dr.
Edwards again for follow-up on May 19, 1987. He reported that the
griever had undergone nq change in her ocular state since August, 1985
and no change in prescription was made. He descrfbed the grfevor as
managing quite well by~wearing the prescribed glasses at work. The
grfevor explained that she only wears the glasses for tasks of more
than 15 minutes on the V.D.T. and otherwise does not wear glasses at
all. She was not aware'that the prescribed lenses corrected for
refractive error and astigmatism. She percefves herself as havfng no
difficulty wfth vision other than the problems she was experiencing
while working for lengthy periods on a V.D.T. without the prescribed
glasses.
Mrs. Lynda Heath holds the position of Health and Safety
Coordinator with the Human Resources Secretariat of the Management
Board of Cabinet. She gave evidence as to the sort of factors which
cause eyestrain for V.D.T. operators and the measures used to deal with
the problem. Her evidence was substantially consistent with the
summary of literature provided by Dr. Edwards in his report of October
21, 1986. Much to the same effect were the reports excerpr?C iron; ner
resource file on the .subject and filed in evidence. In general terms,
the reports indicate that prolonged operation of V.D.T.'s do not cause
eyesight to deteriorate per se. Visual symptoms such as blurred visSon
and systemi; symptoms such as headache and fatigue may be experienced
as a result of a number of factors - vfsual problems such as
uncorrected eyesight deficiencfes: eg. myopia, presbyopia, and
. astigmatism, design faCtOFs'Of the equipment such as brightness,
contrast, positioning of the screen and keyboard; work environment
factors such as the po;itioning of the operator in relation'to the
equipment, the ambient lightfng level; reflective properties of work
surfaces and proximity to windows and window coverings; task demand
factors such as frequency of rest periods, the nature and quality of
assignments performed and Indivfdual factors such as the individual's
overall level of physical fitness and psychological stress. The
ovenhelming weight of the expert oplnlon appears to be that radfation
emitted from V.D.T.'s or prolonged eyestrain do not~cause irreparable
damage to OF Irreversible alterations to ocular structures so as to
cause permanent injury to ocular OF visual systems. To promote the
V.O.1 operator's comfort, measures are taken first to reduce problems
in the equipment design and work environment itself through such
means as an anti-glare screen, reducing the reflective properties of
work surfaces, repositioning equipment, documents and the operator for
maximum comfort, and reducing the ambient lighting level. Rest breaks
assist to relieve from the intense concentration associated with uork
on a V.D.T. Eye examfnatfons are recommended to detect deficiencfes
which may be contributfng to the eyestrain experienced. If such
oeiiciencies can be CO,FFE!Cted by a prescri;:ior: Of~cofrective lenses,
such may be necesary to relieve symptoms of ocular or visual strafn an
individual operator may be experiencing from prolonged work on a V.D.T. '
Counsel for the Union argued that Article 18.1 was a substantfve
provlsion which captures the employer's concomitant obligation under
s.l4(2)1g) of the Occupational Health and Safety Act to take every
reasonable precaution for the protection of the Worker. He argued
that the grievor's SymptomatoTogy of visual disturbance and headache
are cons&on pFObT,emS associated with prolonged operatton of a V.D.T.
Furthermore, Mr. Roland pointed out that the evidence had demonstrated
that the griever's symptoms were only relieved by the glasses~
prescribed and that these glasses were only required for her work on
the V.D.T. and for no other purpose. Thus It was contended that the
most efficient solution to the grievor's visual problem could be
obtained at a relatfvely affordable cost. Since the grievor required
the glasses oniy to perform her job duties on a V.D:T., it was
contended that the Employer is obliged to make reasonable provision to
ensure the, safety and health of I%. Bolton while operating the V.D.T.
by paying the balance of the cost of her glasses.
Ms. Currie, arguing on behalf of the Employer contended that the
onus was upon the Union to establish that damage to the employee
OCCurred, that the damage was caused by the requirements of her work
and that the employer had falled to take reasonable steps to-prevent
the damage OCCUFFing. Furthermore. MS. CUFFie pointed out that making
reasonable provisions to ensure the safety and health of employees is
to be distinguished from paying for a particular item of safety
equipment. In support of this distinction, Ms. Currie cited the cases
OPSEU (Davidson) and Ministry of Natural Resources GSB File #595/89,
-
,
OPSEU (Gillies)"and Ministry of Correctional Servi?es GS5 iile #339/82,
and OPSEU (Union Grievance) and MiniStFy of the Solicitor General GSB
File #1511/84. On behalf of the Employer, it was contended that
Article 18.1 envisioned a cooperative effort to promote safety and
health on .the part of both parties~to the collective agreement. It was
claimed that in the circumstances of this case, the grievor's
SU~~FV~SOF was afforded no real opportuntty to canvass alternative
solutions for dealing with the grievor's problems with glare from her
V.D.T. until he was confronted with her refusal to work and the
eyeglasses had already 'been ordered.' In these circumstances, it was
contended that the Employer had taken reasonable steps to ensure the
grlevor's comfort whfle operating her V.D.T. with attention to the
design features of the e.qulpment. the training provided and compliance
with the other relevant obligations specifically mentioned in Artfcles
18.5, 18.6, 18.8 and 44.3 of the collective agreement. It was
emphasized that it was not Incumbent upon the Employer alone to
eliminate from the work environment every possible risk to every
employee either under Article 18.1 or the Occupational Health and
Safety Act. The case of OPSEU (Alaksa, Polfer & Brown) and the
Hinistry of the Solicitor General GSB, File # 1130/84, 1136/84 and
1137184 was cited in support. The Board was invited to find that given
the care that was taken in conforming the work environment, task
demands and equipment design to the needs of the V.D.T. operators, and
given that the grievor was allowed to stay off V.D.T. assignments until
she obtained her eyeglass prescription, she had been afforded
reasonable provision for ht?F health and safety in accordance with
Article 18.1. If the Employer were to be required to pay for the
eyeglasses, a specific benefit for this purpose would have to be
ne;stiatz.. : Y.;:,. ;..CL cr;;iective agreement. According TV tnk ctirrt;;:
collective agreement, the Employer's vfsion care benefit obligation was
to pay $60 to the grievor under Article 44.3 and this obligation had
been met.
Having,reviewed thoroughly the evidence and argument, the Board is
of the view that the Employer's position should be sustained. The
evidence indicates that the grievor was suffering symptoms of eyestrain
that have been reported as coimnonly arising during prolong"ed operation
of a V.D.T. The cause of such discomfort has,been attributed to a
wltitude of factors fncluding factors associated with the operator,
such as uncorrected visual or ocular defects, psychological stress, and
general level of fitness; factors associated with the equipment design
such as brightness and contrast controls, detachable keyboard, tilt, .
angle and height of the V.D.T. screen; factors associated with the work
environment such as the level of ambient lighting and reflection from
work surfaces; and factors associated with the work ‘tasks. In the
instant case, the Board ffnds that the evidence indicates that the
griever's discomfort arose from two primary sources: uncorrected
visual defects that did not disrupt the acuity,of her vision until she
was requfred to work for prolonged periods on the V.D.T. and secondly
the glare associated with the V.D.T. itself. Although the grievor's
supervisor ought to have been aware sometime in late August 1985 that
anti-glare screens were available to reduce the problem. of glare fran
the screen,.Mr. Jackson was apparently unaware of the availability of
such screens until a complaint concerning the lack of such screens was
raised by the Union in November 1986. Once the complafnt was made, ihe
Employer responded promptly <o provide the anti-glare screens requested
by Mr. Miller. In the circumstances pertaining to this grievance, it
, -,
is apparent mat r'iE :.:;1:oyer took measures to desjgn the work station
in accordance with Article 18.8. The Employer trained the grievor to
use adjustments for position, contrast and brightness of the V.D.T.
screen and took care to place the terminal at locations in the office
in relatfon to windows which reduced glare. No allegation was made
that the grievor was unable to take the rest periods described in
Article 18.5 and the grievor was required to undergo the eye
examinatton specified in Article 18.6, the cost of which was borne by
the Employer. When it was made known to the Employer that glasses were
prescribed to the grievor for use whfle operating a V.D.T., the
sixty dollar benefit specified in Article 44.3 of the collective
agreement was paid. The Board is satisfied on the evidence that even
if an anti-glare screen had been made avallable to the grievor from the
time she uas required to work on the OASYS system, her problem with
eyestrain'may not have been solved. The Board accepts that the
solution which proved effective was the prescrlptton of glasses with
corrective lenses for refractfve error and astigmatism, and anti-glare
tint. In any event, the Employer allowed the grfevor to be relieved
from work on the Y.D.T. for the short period of time it took for the
grievor to have her eyeglass prescription filled. The Board Is
satisfied that the eyeglass prescription was designed to assist the
grievor while working on the V.D.T. and that otherwlse the grievor's
problem with refractive error and astigmatism does not present her with
any problem detectable by her.in carrying out her usual functions. The
evidence is clear that she wears her prescribed glasses.only for work
on the Y.D.T.. Ms. Bolton leaves her glasses at her work station and
does not wear glasses to carry out other activities.
tiavln; :&en the measures it did to relieve the grievor.of the
discomfort she was experiencing after prolonged operation of the OASYS
V.D.T.. ought it to be found that the Employer has failed to make
reasonable provision for the safety and health of the grievor and that
In order to'do so, the Employer must pay to the grfevor the full cost
of her eyeglasses?
The Board accepts that Article 18.1 is not mere surplusage. but
Imports substantive obllgatfons fallfng upon the Employer to make
reasonable provisions for the safety and health of its employees during
the hours of their e&loyment. For example, In the case OPSEU
(Gonneau) and Ministry of the Attorney-General GSB File #227/81, the
Employer was held to be In breach of Article 18.1 by its failure to
maintain free from icefhe parking lot which it controlled and to which
its employees had access. The grievor had damaged her car and another,
car, into which she had collided, owing to the icy condltIons of the
parking lot. The Employer was held liable to pay damages in the amount
of one hundred dollars to cover the deductible portion of the cost of
repairing the grfevor's car. The grlevor was not held accountable for
contributing to the cost of snow and ice removal, the burden of which
would fall upon the Employer.
However Article 18.1 also stipulates that it falls jointly upon
the parties to the collective agreement to cooperate to the fullest
-extent possible In the reasonable promotion of the safety and health of
all employees. This joint responsfbflity was noted fn the case DPSEU
(Davidson) and Ministry Resources, (GS8 f/595/801 at p.11 wherein the
effect of the Occupational Health and Safety Act was considered upon
the content of responsibilities in Article 3.10, which is identical in
--
.,;::~,in.; ;; ;\r:i.cle 18.1.
The Board commented uixr~;::iti Imeaning of tne
Occupational Health and Safety Act as follows:
The purpose and intent of the legislation is clearly to place
responstbtlity both on the employer and the employees for
health and safety in the workplace.
The Board concluded that Article 3 specifically excluded Article 18
from applicability to unclassified employees. Furthermore, the Board
held that neither the Occupational Health and Safety Act, nor Ministry
policy, nor the wording of Article 3.10 imposed an obligation upon the
Ministry to supply safety footwear. Rather, It was found that
reasonable provision for safety and health could be made by ensuring
that safety footwear was worn where necessary.
At p-11, the Board made the follaring observation:
The Unionargued that it would not make sense for the
employees to have to supply theft own footwear because then
they mtght have to supply their own fire extinguishers, and
other equipment ~prescrfbed by the Act. The answer to this Is
that the question of who supplies the equipment is a matter
of bargaining between the Union WI the MfmlsUy. The
Mlnlstry must ensure that the prescrfbed equipment, materials
and protective devfces are provided (section 14il)(a)). The
employees shall use or wear these articles (section
17(l)(b)). The question of who Is to pay for the equipment,
materials and protective devices is not covered in the Act.
If the employer provides the items. then he must ensure that
they are iuafntafned in good condition (section 14(l)(b)), and
are used as prescribed (section 14(1)(d)). But it is not the
employers obligation to.supply all the prescribed equipment,
materials and protective devfcec Indeed, the parties have
recognized this for employees who are civil servants (Article
18.3 in the Collectfve Agreement), whereunder the purchase of
safety footwear is "subsidized".
The Davidson case was considered in two other cases cited to the
Board - Re OPSEU (William Gillies) and Ministry of Correctional
Services (GS8 #339/82) and Re OPSEU (Union grievance) and Ministry of -
the Solicitor General (GSB #1511/841. In the Gillies case, the grievor
claimed that the Employer had breached Article 18.1, 18.2, 18.3 or 18.4
i
of the collective agreement by failing to proviae felt-l!nec saiary
boots,to the gtievor for an outdoor assignment in cold weather. At
p.5, the Board noted that at a minimum Article 18.1 requires compliance
with the Occupational Health and Safety Act, but further imposes
obligations not specifically covered by that legislation. citing the
Gonneau case in support. At. pp. 8 and 9, the Board finds that neither
Artfcle 18.1 nor the more specific Articles 18.2 and 18.3 oblige, then
Employer to provide safety boots of any description, Rather, the
oblfgation to make reasonable provisfon for health and safety in
Article 18.1 was held to be satisfied by the Employer ensuring that
safety footwear was worn by employees exposed to the hazard of foot
injury. In the Gillies case, the grievor had requested felt-lined
safety boots after starting his assignment. The employer was unable to
respond to the request before the grlevor's short-term assignment had
concluded. The Board held that any obligation to cpntinue its CUrtent
practice of supplying felt-lined safety boots when requested pursuant
to Artfcle 18.4 had been satisfied.
In the union grievance case, GSB #X11/84, unclassified employees
working as V.D.T. operators claimed entitlement to eye examinations
pursuant to Article 3.10 (non 3.11) of the collective agreement. The
eye examinations sought to be provided were the same as those set out
in Article 18.6 for classified employees.- At p.14 of GSB File
-#1511/84, Ms. Knopf writing the unanimous decision of the panel draws
the following conclusion from the meaning of the Davidson case, GSB
File #595/80:
Ftnally, the case ts instructive In that it points out that
the question of promoting and ensuring safety ought to be
distinguished from the question of who bears the cost of
‘i ,,
saitry'equipment. The cost of safety equipnehr r(as said
to be a matter of bargaining. In addftion the reference to
Article 18.3, although not specifically stated as such, must
be understood to imply that where a specific benefit is
obtained for the classified staff, the absence of such a
benefft in Article 3 must be taken to indicate that the
benefit does not apply to the unclassified staff.
In the instant case, the Board was not directed to any provisions
of the Occupatlonal Health and Safety Act which would require the
Employer~to compensate classified employees for eyeglasses required
when ustng a V.D.T. Thus, the question remafns whether such a specific
obligation of the Employer can be implied from the general requfrement .
to *make reasonable provfsfons for the safety and health of Its
employees during the hours of their employment'.
The Board notes that Articles 18.5 to and including 18.8 give
specific content to obligations more generally captured in Article
18.1. That is not to say that Article 18.1 Is thereby emptied of
content by the more specific provisions. However. a sp%clfic
obligation to pay the cost of prescription eyeglasses impliedly flowing
from the general obligation to make reasonable provlsion for the safety
and health of employees during *orking hours is qualified by analogy to
the other'specific obligations associated with the general obligation
in Arttcle 18. In this case, it is to be noted fran Article.18.6 that
where a specific cost is to be borne by one of the parties, it is
expressly stipulated by whom it is to be borne. Article 44.3
stipulates when and to what extent the Employer's carrfer is lfable to
pay costs of vision care for general use. Articles 18.2, 18.3 and 16.4
when read together and in light of the interpretation given in the
Gillies case, GSB File #339/72 and Davidson case. GSB File #595/80.
0
seem to relegate to the realm of joint bargaining $he subj.::; r,att+r of
which costs are‘to be borne by the Employer in respect to items of
safety apparel or equipment needed for use during working hours. The
parties have specifically addressed the requf rement of undergoing eye
examinations and by whom the cost of such examination is borne. The
purpose of such a provision presumably is to encourage employees to
obtain a professional assessment of any underlying visual or ocular
defects which could affect their ability to operate a V.D.T. wfthout
discomfort and eyestrain. As the literature indicates. up to 30% of D
the clerical population may have such defects which were hitherto
undetected but which cause problems for the intense visual
concentraMon required of's V.D.T. operator. In many cases, a
prescription for corrective lenses with or without an anti-glare tint
could be prescrfbed for use during working hours as a result of the eye
examination conducted, although Ms. Heath indicated that most.operators
find that the antl-glare screen suffices. The parties have addressed
the issue of the Employer's obligation to pay for general vision care
benefits in Artfcle 44.3 and that benefit has been pafd to the grievor.
The fact that the parties have specifically ,addressed those benefits,
gives rise to the implication that the parties did not intend that the
full cost of eyeglasses required for use during operation of a V,.D.T.
at work is to be borne by the Employer, However in assessing whether
reasonable provfsion has been made for the safety and-health of
employees at work, regard should be had to all the relevant
circumstances. It should be borne In mind that the Employer has taken
other measures through choice of the equipment design and location,
training the operators on methods to reduce V.D.T. glare, providing
anti-glare ~.:w~!~nr wnc: r;isjr availability was madg known (although too
late for the grievor). Furthermore, the Employer relieved the griever
from V.D.T. work In the short interval between her eye examfnation and
.
the fllling of her eyeglass prescription, to protect her from the
effects of Dlare. As the memo dated August 26, 1985 from Mr.
Casagrande indicates, anti-glare screens,.lead aprons and other
equipment peripheral to the V.D.T. and its work station are. being
supplied by the Employer, which can purchase such~equlpment at a volume
discount for general use by V.D.T. operators. On the other hand, the
type of prescription eyewear required and its attendant cost would have
to be highly individualized to correct the particular defect identified
thrrJgh an eye examSnat<on of the sort contemplated by Artfcle 18.6.
In light of the other measures which the Employer has taken to protect
the health and safety of its V.D.T. operators, the wording of the
entirety of Article I8 and 44.3, and bearfng in mind the case law which
has drawn a distlnction between ensuring that proper protective devices
are worn and supplying and paying for such equipment, the Board
concludes that the partles did not intend that the Employer should pay
the full cost of prescription eyewear tailored to reduce glare and eye
fatigue from operation of a V.D.T. during working hours. In the
result, the Board concludes that no violation of Article 18.1 of the .
collective agreement has been established from the Employer's failure
to pay the full cost of the griever's eyeglasses.
In consequence, the grievance Is dismissed.
I’::EC t:-KingSron, this 16th
day of September. 1987.
vir man
“I DISSENT” (see attached)
Larry Rotmins, Member
.pTJ&j&&c &3ii-&
Michael 0’ ioole, member
i 0
IN THE HATTER OF THE ARBITRATION
BETWEBB: CROWN IN RIGHT (MINISTRY OF REVENUE)
- and -
O.P.S.E.O.
IU THE MATTER OF THE GRIEVAWCE OF S. BOLTON - GSB PILE 952/05
DISSEUT
I have reviewed the Award of the Chairman in this
matter and with respect must dissent from it.
I would agree at the outset with the statement that
Article 18.1 is not mere surplusage, and that it import5
substantive obligations on. the Employer to make reasonable
provisions for the safety and health of its employees and that
this obligation exists over and above the other specific clauses
in Article 18.
I
- Page 2 -
. .
The issue in this case is whether. the Employer's
obligation to make 6UCh reasonable provisions for health and
safety requires that they pay for the cost of Hs. Bolton's
glasses in the circumstances of thi6 case. We heard some
evidence on .the other measures that the Employer took in setting
up the new OASYS System &nd~ in responding to Ms. Bolton's
complaint originally. I would agree that there was nothing
particularly.unreasonable in .the rest of the Employer's actions
(although a fifteen month delay in placing anti-glare screens on
the equipment leaves something to be desired, to say the least).
But, in any event, what’ever else the Employer did is irrelevant
for the purposes of this case.
Because of the nature of Ns. Bolton's problem, the only
way that she could operate the system 'in a safe and healthy
manner was to wear the special glas,ses. These were glasses
required solely for use on the V.D.T. machine. If you like, it
was as if the griever required a special V.D.T. screen which in
her case rested on the bridge of her nose rather than on the
equipment itself. The test that must be answered is whether the
Employer's refusal to pay is. reasonable in all of the
circumstabces. If not, it would be a violation of Article 18.1.
i
- Page 3 -
Regrettably, the Chairman has relied to some degree on
making a distinction between the provision of safety equipment
and the obligation to pay for it. In my view, that distinction
can be a highly artificial one. Clearly the Employer has an
overall obligation to make provision8 for health and safety and
that obligation imports with it a cost. To use the Gonneau case.
(GSB File 227/Sl) as an example (a case concerning snow removal
which was relied upon by the Union), the Employer could hardly
suggest that the employees themselves take a collection to pay
for the cost of the snow removal. Similarly, it would be absurd .
to have the employees in this case pay for the anti-glare screens
yet they were clearly a further example of health and safety
equigs5eot with a similar purpose to M. Bolton’e eyeglasses. It
would therefore be very wrong to assume that
Article 18.1 does
not also entail certain costs even if they are not covered by
some other clause in Article 18.
To be fair, it’s not fully clear how far the Chairman
is going with this distinction. If all that she is.saying is
that the obligation to pay for certain equipment may not flow
automatically from every Employer act ion in carrying out its
responsibilities to provide a health and safe working
. h
:
- Page 4 -
environment, I could not disagree with that. But, if the,
inference is that one should not find any obligation to pay for
safety equipment unless it is spelled out in the most specific
language of one of the other clauses, then I would vehemently
disagree.
The Chairman relies as well on two other cases, namely:
OPSEU (Davidson) and Ministry of Natural Resources - GSB 595/80
and OPSEU (Union Grievance) and Ministry of Solicitor General-
GSB File 1X1/84. Both of those cases appear to adopt a similar
analysis, however, they both dealt with matters which were
specifically covered by one of the other clauses in Artfcle 18,
in one case clause 18.3 re safety boots and ia the otber clause
18.6 re eye examinations. In each of those cases, the Union was
seeking the benefit in question for unclassified staff covered by
Article 3 in the face of clause 3.15 whi ch makes it very clear
that the clauses in question applied only to the classified staff
and not to those employees covered by Arti cle 3. Presumably it
would have been a simple matter for the parties to say that those
sub clauses (18.3 and 18.6) applied to unclassified employees a5
well;
But the case at hand is not of the~same character at
all. We are dealing with a matter that is not dealt with in the
specific provisions of Article 18. None of thoee provisions~ say
that the Employer will pay for the costs of glasses in carrying
out its health and safety obligations; on the other hand none of
them say that the Employer will not pay.
Before considering Article 18 in more detail I should
deal briefly with Article 44.3, which I see as peripheral to the
matter at hand. That clause makes reference to the vision care
provisions of the Supplementary Health and Hospital Plan which is
one of the benefit plans cover ing all employees. It has nothing
to do ritb health and safety at the work plate, ~ and really sheds
no light on the grievance. Article 44.3 simply makes it clear
that vision care is part of the benefit package of employees. If
this clause was not in the collective agreement it would hardly
make He. Bolton’s case stronger. Clearly the .parties were not
thinking of Article 18 at all when they were negotiating benefit
plans which are the standard plans commonly found in collective
agreemiznts. In the matter at hand, we are not dealing with
benefit coverage or an Insurance Carrier. The question is simply
one of considering a direct Payment made necessary by Article 18.
Turning to Article 18, the Chairman has relied
heavily on certain of the other clauses in ~that Article
and by
drawing analogies to those other clauses has decided that the
parties did not intend to provide the payment in question in this
case- With the greatest respect, I find that approach to be far
to analytical.
I would agree.of course, tBat one must look at Article
18 as a whole and not simply take one clause in isolation.
Article 18.81 sets out an
important general obligation on the
Bmployer. Article 18.82 to 18.08 all provide various specific
obligations.
Some of those latter clauses deal directly with
questions of cost and other do not. But, surely the intent of
those other clause8 is not to lfmft the efficacy of Article 18.01
but only to deal with certain specific matters. There is a good
zeason for this. prom a labour relations perspective, it would
require an Article 18 as long as the telephone book to clearly
set out every specific obligation which would be necessary for
the Employer in fulfilling the general requirements of Article
18.01. Referring again to the Gonneau case, note that there is
no speci-fit clause dealing with snow removal, however that matter
was found to be covered by Article 18.01. To use another
example, there is no specific clause under Article 18 dealing
with the procedure for frisk searching inmates in correctional
institutions.
- Page 7 -
However, in another Union Grievance, that matter was also found
to be covered b’y the general language of Article 18.01 (see Crown
in Right of Ontario (Ministry of Correctional Services) and
Ontario Public Service Employees Union, R.J. Roberts, 27 LAC
(3rd1, Page 233, November 28/86.) In the case of eyeglasses,
the need’ for the glasses is based on the specific facts of the
~case. The Union has ndt argued that the Employer is required to
pay for the cost of eyeglasses for all employees who use them in
operating V.D.T. Terminals. The reaeonablenee6 of Me. Bolton’s
claim is founded essentially on two factors:
1. The fact that she did not require glasses at
all prior to the introduction of tbq 08SYS
system.
2. The fact that she used the glasses solely
while she was working at the V.D.T. Terminal,
and that she never even took the eyeglasses
home with her.
It can be readily seen that it would be difficult to
even write a clause into the collective agreement that would set
out all of the circumstances where the Employer would pay for
eyeglasses and those where they would not. For that reason, I
don’t view the absence of a specific clause as showing the
intention of ‘the parties not to pay for eyeglasses ever.
Similarly, Article 18.6 which deals with eye examinations is in’
no way inconsistent with the Union’s position in this case. x,t
may be that Ms. Bolton’s need for the eyeglasses first became
apparent to her during an eye examination covered by Article
18.6. But it hardly follows that the mention of payments for eye
examinations should be seen as an intention not to pay for eye
glasses. That type of reasoning, which I suppose.is an example
of the Latin principle espressio unius exclusio alterius is well
known as being a particularly unreliable legal tool for
collective agreement interpretation.
The key question from a labour relations viewpoint is
on whom is it reasonable for the cost of eyeglasses to be borne.
I would note that the cost ior the Employer in this case for Hs.
Bolton’s eyeglasses would be minimal (specifically, 8139.50).
Moreover, it is not at all clear that there are hundreds of
employees out there with identical.circumstances to that of the
grievor. Mrs. Lynda Heath testified ,that, from her experience,
the placement of anti-glare screens on the equipment and the
a3justing of the equipment had resolved .pretty well all such
problems, and this was the first case that she had heard where
those measures were,unsuccessful and where the glasses were in
fact required.
On the other hand, the cost is not particularly minimal
for a relatively low paid clerical worker. As Ms. Bolton
requires the glasses to work at the V.D.T. Terminal, a new system
put in place by the Employer, and as she has no other use for the
glasses, it would seem eminently reasonable to me for the
Employer to pay for the costs in the circumstances of this case.
Therefore, the "reasonable provisions" which the Employer should
have made as per Article 18.1 should have. included payment for
the eyeglasses based on the facts of this case. For all of tbese
reasons 1 would have allowed the grievance.
Dated at Toronto, Ontario this 16th day-bf September I-987.
All is respectfully submitted,
/ LARRY ROBBINS
UNION NOMINEE