HomeMy WebLinkAbout1985-1281.Bedard et al.87-08-12File Nos.
128ll05 to 1294185
IN TBB MATTER OF AN ARBITRATION
UNDER
THE CROWN FM'LOYBES COLLECTIVE BARGAINING ACT
BEFORE
THE GRIEVANCE SETTLBMBNT BOARD
BETWBEN:
OPSEU (Bedard et al)
- and -
TRE CROWN IN RIGHT OF ONTARIO
(Ministry of Health)
BEFORE:
FOR THE GRIEVOR:
FOR THE EWLOTER:
RRARING:
G. Brandt Vice-Chairman
J. McHanus Member
A. Stapleton Member
S. Goudge
Counsel
Gowling and Henderson
Barristers and Solicitors
L. n. McIntosh
Counsel
Crown Law Office Civil
Ministry of the Attorney General
June 30, 1987
Griever
Emp layer
DECISION
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The grievers in this case are 11 driver attendants and 3 shift
supervisors all of whom are classified as Ambulance Officers and all of whom
are employed by the Ministry of Health which operates an ambulance
service in the city of Cornwall, Ontario. Their grievance is over an issue as to
whether or not, in respect of certain services which they provide for the
Employer, they are to be treated as ;on call” or as on “stand- by”.
The relevant provisions of the collective agreement are Articles
and 16. I which defiie “stand-by time” and “on-call duty” respectively.
15.1
15.1 “Stand-by time means a period of time that is not
a regular working period during wbicb an employee keeps
himself available for immediate recall to work
16.1 “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.
‘Employees who are on “stand-by” are paid 4 hours pay at the basic
hourly rate (if the period of time is less than the number of hours in the
normal work day) or one third of the stand-by hours at one and one half the
basic hourly rate (if they are required to stand by for more than the number
of hours in the normal work day). Employees “on call” receive 25 cents per
hour for all hours assigned to on-call duty.
There is no significant disagreement on the facts. The grievers.
including the shift supervisors, are ambulance drivers who service the city
of Cornwall. In this regard they respond to calls to pick up patients and take
them to either of two Cornwall hospitafs. In addition they may be called
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upon to take a patient who is in either of the hospitals and whose condition
is such that it can not be properly attended to at the hospital to a hospital in
the city of Ottawa.
The normal Monday to Friday schedule provides 3 vehicles (each of
which is staffed by 2 officers) from 8.00 a.m. to 4.00 p.m. From 4.00 p.m. to
8.00 p.m. 2 vehicles (each with 2 officers) are provided. From 8.00 p.m. to
8.00 a.m.the schedule provides only 1 vehicle with 2 officers.
The issue in this case concerns the policy which is in effect between
8.00 p.m. and 8.00 a.m. This is a policy which permits the? service to answer
emergency (eith& Code 3 or Code 4 calls) at a time when the one scheduled
vehicle is answering another call
According to this policy the shift supervisor identifies the names of
offkers who are willing to make.themsefies available for duty on the
particular night in question. These names are given to the dispatcher and
the officers in question are expected either to remain at home to answer the
telephone (or. if they will not be at home, to inform the dispatcher of a
tilephone number where they can be reached) or to take a pager which is
provided for them.
If they are called by the dispatcher they are obl$ed to report to the.
base where the vehicles are kept and to attend to the call. The calls may be
Code 3 calls (“limb threatening” calls requiring “prompt” attention, or Code 4
calls We threatening” calls requiring “urgent” attention). Transfer calls. i.e.
calls requiring the movement of a patient from one hospital to another are
classified as Code 3 calls since the patient is aaxmpaPiied by a health
professional from the transferring hospital.
The expected response time is IS minutes from the time the officer
receives the call to the time he reports to the base. The majority of officers
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report withIn that time. Some, who live close to the base, are able to report
within 7-8 minutes. Others have, on occasion, exceeded the 15 minute
guIdelIne but the maximum response time that has occurred has been 20
minutes.
Non officer is under any obligation to put his name forward for this
duty. If he does and finds that he cannot serve it is his responsibility to find
a repiacement or. failing that. advise the shift supervisor that he cannot.
answer any calls. In that event it is the responsibility of the shift supervisor
to find another officer, faIlIng which he may have to do the duty himself. No I
officer has ever been formally discipliaed for faIIure to put his name on the
list or for asking to be removed from the List after having agreed to serve.
Indeed, the policy even permits, suprisingly in our view, an officer who has
agreed to serve and who has been called on to answer a call and report to
the base, to refuse to accept the calI without fear of dis&line. Nor has
anyone ever been formally disciplined for faIltire to report to the base
with&the 15 minute period expected.
The issue in this case is very narrow. Simply put it is this: were the
grievors required to “keep themsehres available for immg!U& recall to
work” or where they required “to be reasonably available ~for recall to work?
The Employerrelied heavily on the fact that the system was very
flexible, that officers had the choice as to whether or not to participate In the
first Instance and the right to opt out at any time even at the point where a
call had actually been received. Furthermore it was noted that the 15
minute period was only an expectation or a guideline and that no officers
were formally disciplined . if they exceeded it. .
In this regard the Employer argued that this case was distinguishable
from Jggt&n 162/77 and Novak and I4 l/8 1 where the ,
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employer had Instituted a rotational system according to which employees
were scheduled to provide this kind of “on-u or “stand-by” service,
On behalf d the Union it was submitted that, on any reasonable view
of the matter, an expectation that employees report to work within IS
minutes, having regard to the fact that some of that time will of necessity be
consumed by travel time back to the base, is a requirement to keep oneself
available for imt&&,g recall to work withio’the meaning of Article 1 f.1.
Once the caII is received there ,is no choice but to respond then and there to
. the call: the response must, of necessity, be immediate.
The difficulty with Articles 15 and 16 of the collective agreement is
that they applyin a wide range of diierent.situations some of which involve
more urgency than others: The parties have recognhzd this by establishins
two different types of duty: an immediate “stand-by” duty which applies to
more urgent situations, and a-less urgent (and more flexible) ?&calf duty
which is measured In terms of “reasonable avai&lIty”.
The determination of which one applies In a particular case wIII
~necessarIly be a function of the particular circumstances of the case and the
nature of the duties involved. As the board observed in Walker
4 17/82,4 18182 (In an award which reviewed the other cases which have
interpreted these articles) the important question is that of determining the
“real requirements of the duty as ascertained by examining the
circumstances of the job and the written and verbal instructions to the
employees.”
We believe that a key consideration in this case, one which bears on
the circumstances of the job, is that the duties performed by the grievers
relate to the protection and preservation of human life and physical well-
being. In this respect they approximate more closely the duties of the
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grievers In Walker who drove an OPP Command Trailer used for
emerge&es such as trail derailments and airport disasterathan those of the
grievers ln JgmMm (plumbers and electricIansI or in Novak
(conservation officers).
We agree with the suggestion of counsel for the U&m that Articles 15
and 16 should be seen as describing a continuum which seeks to relate the
relative immediacy of a required response to a call for some pub& service to
the nature of the pubIic interest that is threatened.‘Thus. where as here the
service needed is directed at the protection of human life, the called for
response is, and should be, immediate. To approach the matter this way is
simply to echo what other panels of this board interpretI!@ these ‘articles
have said, viz, that each case must be decided on its own facts.
We do not entirely discount the relevance of ‘TlexIbIlIty”. which was
clearly a factor regarded as relevant by the Board in its decisions in
Jg&gxt and in Nwak However, an examination of’those
cases Indicates that the kind of flexibility there referred to was flexibility as
to how quickly employees were expected to respond to a calI. Thus, In
raLpieson. employees had up to 2 hours to respond to a call, time in which
they could complete whatever task they were then engaged in (es. shoppIng
before answerhrg the call In Novak the Board indicated
there was some ambiguity In the Instructions as to the speed with which
employees were required to answer calls.
None of that obtains here. The expected.time for response here is se
short that there is no flexibility in responding to a call. While it is true that
the avaUabIlity of a pager adds to the flexibity that officers enjoy in terms of
permitting them to engage In other activities while they are “on-calf or on
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“standYby”, once the call comes In they must, of necessity, respond
3 immediately.
Nor do we regard the fact that the system is voluntary as significant to
the issue as to how then duties should be characterized. It is to the credit of
the parties that .they have been able to make it work without the imposition
of any formal disciphne either for failure to participate In the first Instance
or failure to respond whhin the time expected. Rvidently the service in
Cornwall his staffed by a complement of responsible professional employees
and by supervision which is sensitive to employee needs and i&rests.
However, we do not believe that the presence or absence of a mandatory
schedule backed up by varying degrees of discipline should be the
benchmark for deciding issues arisIng under these articles of the collective
agreement. Rather, the key consideration is the nature of the job and the
duties &oIved In it. Where, as here, off&s are expected to respond
immediately to threats to human life, they are providinga service which :
deserves to beg rewarded at the rate appropriate for “stand-by” services.
In the result the grievances are allowed.
It should be noted here that, by agreement of the parties, the.
grievance of Tim Rose was selected as representative of that of all of the
grievers and it was agreed that the disposition of that grievance would be
treated as disposing of all of the others.
The Board remains seised of jurisdiction in respect of any issues~that’
may arise out of the Interpretation or implementation of this award.
Dated at LONDON, Ontario this 22A day of hem , 1987
: iL.
G. J. Brandt, Vice chair
. ,..i
/&I3 fi.&L
. A. Stapleton Member