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HomeMy WebLinkAbout1990-0572.Union.91-06-26 I "';/,1 . ,¡ ". ,," ,"", ONTARIO EMPLOYÉS DHA COURONNE ' CROWN EMPlOYEES DE L'ONTARro ~. .,' , ' , 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS lBO DUNDAS STREET WEST, sum: 2100, TORONTO, ONTARIO. MSO lZIl TELEPHONE ¡TÉU!PHONE,' (416) 326-1388 180, RUE DUNDAS OUéST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8 FACSIMILE.=fTtL~COPIE; (416) 326-1396 572/90 IN THE HATTER OP AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . Before , THE GRIBVANCB SETTLElŒNT BOARD BE'l'WEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Health) . . Employer BEFORE : B. Fisher Vice-Chairperson J. Laniel Member F. Reeve Member FOR THB I. Roland GRIBVOR Counsel Gowling, strathy & Henderson Barristers & Solicitors FOR THB J. Middlebro EMPLOYER Counsel Middlebro', stevens, & Marsh Barristers & Solicitors HEARING February 8 1991. I \ 1 , INTRODUCTION: This case involves the determination of whether or not ambulance attendants can be required to perfor.m certain tasks of a maintenance nature in relation to the upkeep of the ambulance premises. FACTS: There was virtually no dispute of the relevant facts, which can be conveniently listed as follows: 1. This qrievance involves three ambulance stations consistinq of one ~ach in Owen Sound, Port Elqin & Kincardine. The only relevant difference between the three is that both Port Elqin & Kincardine have lawns as pa~t of the station while Owen Sound does Dot. 2. The present Manual of Policy of Procedure describes the maintenance duties expected of the 'ambulance attendants. It-is set forth in full as Appendix nAil. In essence, it provides that all site maintenance, both inside and out,is to be done by the ambulance attendants. The ODe exception to this is snow removal which has special rules. In any event, the parties have aqreed that snow shovellinq is not a concern of this qrievance. 3. This practice of having the a.JDbulance attendants perform all the maintenance duties relating to the site bas qone on for quite a number of years, without any negative comment by the Union until this . ¡'c' , '. 'J -;¡ 2 grievance, which was dated Apri~ 26, 1990. 4. The ambulance attendants eat and sleep on the premises as most of them are on twelve hour shifts. As the station has kitchen facilities these meals are often prepared and served at the station. The meal periods are paid. s. The Employer has in the past purchased lawn mowers and similar lawn maintenance equipment. Each of these purchases have been approved by the xinistry of Health. . 6. The common practice in most small towns is to have the ambulance attendants perform all or most housek~eping duties. . 7. There is no.job description of Ambulance Attendant in the collective agreement. - 8. The Collective Agreement contains the following relevant provision: 1.03 Whereas the employer is qoverned, by the terms of The Ambulance Act, and requlations pursuant thereto, Revised statutes of ontario, 1980, c. 20, as amended and whereas it is agreed between the Parties that if there is any conflict in any way between The' Ambulance Act, and the provisions of this agreement then .the terms of The Ambulance Act and the requlations pursuant thereto shall govern. 4.01 The Onion recognize,s and acknowledges that the Management of the stations and directions of the working force are fixed exclusively with the Employer and without restricting the generality of the foregoing, the Onion acknowledges it is the exclusive function of the .Employer' to: 1 , 3 , (c) qeneral:ly to manaqe the operations and undertakinqs of the Employer, and without limiting the qenerality of the foreqoinq, make, enforce, and alter from time to time, reasonable rules and requlations to be observed by the employees covered by this agreement, provided that they are not inconsistent with the provisions of this aqreement, and provided' that they are exercised in a manner consistent with the provisions of this a<¡reement and in a fair and reasonable manner; (d) determine the nature and kind of business conducted by the employer, the kinds of locations of stations, equipment and materials to be used, the control of materials and parts, tbe methods and techniques of work, the content of jObS, the work schedules, the number of employees to be employed, the extensions, the limitatibns, curtailment, or cessation of operations, or any part thereof, and to determine and exercise all other functions and preroqatives whicb shall remain solely with the employer except as specifically limited by the express provisions of this ,aqreement." 9. Requlation 14 under the Ambulance.Act contains the followinq relevant provisions: - "1. In this ~equlation, unless the context otherwise requires, (c) "driver attendant" means a person who, in the course of providing ambulance service to a patient in ontario, (i) operates, drives or otherwise has the actual care of control of an ambulance, or (ii) attends, assists or renders first aid or emergency medical care, but does not include a physician, intern, nurse,nursinq assistant, respiratory technologist or other skilled and duly qualified medical technician who attends on at least two ambulance service with at least two driver attendants for the purpose of renderinq specialized health care services to a specific patient; /~ ) 4 22. (1) Every operator of an ambulance service shall maintain every ambulance in his ambulance service and the equipment required by section 19, (a) in a safe mechanical condition; (b) in a clean and sanitary,condition; and (c) in proper working order. 36. (1) Ivery operator who receives funds from the Province of ontario for ambulance service purposes shall use such funds only for purPoses directly related to the provision of ambulance services. (2) Where' the Province of ontario provides funds to an operator and directs that such funds shall be used for a particular purpose, the operator shall use such funds only for the purpose so specifie'd. (3) Where the Province of ontario provides equipment, SUPPlies or other tangible property to .an operator, an operator shall use such property only for purposes directly related to the provision of ambulance services unless the Director has approved some other disposition thereof. (4) Where funds provided by the Province of ontario are used by an operator to acquire equipment, supplies or 'any other property, he shall use such property so acquired only for purposes directly related to the provision of ambulance 'services unless the Director has approved some other disposition thereof. 60. No operator may require or permit any time employee while the employee is on duty in the ambulance service to perform any duties which are not directly related, Ca) to the provision of ambulance services; (b) to a dispatch centre; (c) to the maintenance, repair or preparation of ambulance service equipment; (d) to the care and security of persons receiving care in a health care facility; (e) to the communications need of a health care facility; or \ 5 , + (f) to public service activities related to emergency health care. In addition, schedules 1, 2 and 3 prescribe the ambulance accessory equipment and the medical equipment that the ambulance service is required to provide. 10. The Ambulance Act describes "ambulance service" in section l(b) as follows: ....ambulance service" means a service held out to the public as available for the conveyance of persons requiring medical attention or under medical care and includes the service of dispatching ambulances." UNION'S ARGUMENT: Section 60 of the Regulations limits the job functions of an ambulance attendant to those duties specially listed. The use "of the term "directly relate~'~ indicates that an ambulance attendant cannot be required to perform tasks that do not relate to his core duties, as defined by Section l(C) of the Regulation which is to operate an ambulance and to provide emergency medical care. The provision of housekeeping services is therefore not permitted by Section 60. The Regulation clearly contemplates that an ambulance attendant would be responsible for the maintenance of the ambulance and . ambulance equipment as this is specially listed in Section 60(c). By specially referring to maintenance of ambulance equipment it must 'be excluding - maintenance of items Which are not ambulance equipment, i. e. kitchens, grass and trash cans. Furthermore, to simply say that housekeepinq duties form part of lithe provision of ambulance services" as set out I . lec ~c ") 6 in section 60(a) would be to offend the rule regarding general and specific enact.ments, which was summarized by the ontario Court of Appeal in R.V. Township of North York and Beckett 50 DLR (2d) 31 at page 37: liThe general rules which are applicable to particular and general enactments in statutes are very clear, the only difficulty is in their application. The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the . general enactment must be taken to affect only the other parts of the statute to which it may properly apply: Pretty v. Sally (1859), 26 Beav. 606 at p. 610, 53 E.R. 1032. . '. See also .De Winton v. Mayor etc. of Drecon (1859), 26 Beav. ,533, 53 B.R.l004, and craies on statute Law, 6th ed. p.221. The union also relied on a private sector case involving an , ambulance service entitled Royal City Ambulance Service Ltd. and OPSEU , LOèal 1231 (unreported decision of R. Verity Q.C., dated February 22, 1990). This case arose ou~ of a strikingly similar set of facts, however, it only pertained to the aspect of grass-cutting as an appropriate assignment, not the full 'range of housekeeping duties present in this case. Xn that case it was held that grass cutting was not an assignment directly related to the provision of ambulance servi~es and thus was contrary to section 60 and the relevant collective agreement. EMPLOYER'S ARGUMENT: Under Section 36 of the Regulation, the Province only funds purchases for IIpurposes directly related to the provision of ambulance !. / 7 ,). services". Under this provision the Province funded the purchase of a lawnmower and therefore the provision of grass cutting services must - be a function directly related to the provision of ambulance services, therefore it is proper for ambulance attendants to perform these duties under section 6O. . In fact Section 60(a) is broad enough to allow tbe Employer to require ambulance attendants provide a whole range of duties, if asked, inclUding bookkeeping functions related to the operation of the station. , . , The purpose behind Section 60 is to ensure that ambulance . operators do not receive funding from the Province which they then use for other businesses and that ambulance attendants are ready at all times to go out on emergencies. Therefore, it would be improper for the-Employer to require their ambulance attendance to sell magazine subscriptions on the telephone while at work. Similarly, it would be - improper for th~ Employer to require an ambulance attendance to do the employer'S banking as this would necessitate the attendants from be~ng unavailable to respond to calls promptly. As the requirement that attendants do housekeeping duties offends neither of these criteria, it therefore doesn't offend section 60 nor the collective agreement. DECISION: Both parties agree that the essence of this case is to determin~ . / ~\ 8 when do the duties of an ambulance attendance cease to be directly related to the provision of ambulance services, or in the words of Arbitrator Verity in the Royal city Ambulance service Ltd. case "In other 'words, where does one draw the line?" Mr. Roland, for the Union, would have us set the standard as the "office workers standard" which seems to consist of little more than the requirement to look .after one's immediate living space on a daily basis, with the expectation that someone else would take care of the . cleaning and janitorial duties. Therefore, Mr. Roland would say it was permissaÞle to insure than an employee cleaned off the counter if he spilled something, but not sweep the floor on a reqular basis. similarl:Y~ it is perfectly proper for an ambulance attendant to put his kitchen garbage in the garbage can but he shOUld not have to carry, the garbage out to the curb. Wiping the sink in the washroom is ()kay, but cleaning the toilet is not. , . Hr. Middlebro, for the Employer, would have the ambulance attendants being janitors, accountants, repairmen and carpenters, as long as the work was related to the provision of ambulance services and they could quickly jump into an ambulance if necessary. . It is interesting to note not only where Arbitrator Verity drew the line, but also his following comments at pages 10 and 11 on what properly was an ambulance attendant's duties: "It is understandable, we think, that driver attendants are responsible for performing tasks to keep the interior of the stat.ion neat and tidy. Those t.asks are amenities for t.he driver attendants : ~, , 9 L - amenities which go with the provision of ambulance services and which flow naturally from the duties of a driver attendant. However, once one gets to the maintenance of the site, such as cutting grass, beyond the requisite buildings and driveways, then it becomes questionable whether any such task can be said to be directly related to the provision of ambulance, services. It does not escape the attention of this panel that maintenance can be a service depending on the context in which it is used. However, in the context of s. 60(a), in our view, cutting the grass would generally be considered as maintenance of the site rather than directly related to the provision of ambulance services.1I . In other words, Arbitrator verity seems to draw a distinction between those duties relating to the cleaning and maintenance of the station house itself and those relating to the upkeep of the surrounding lands. This lIinside-outsidell distinction is a useful one for the following reasons: 1. It is relatively easy to distinguish between which tasks fit into which category, wherea9the Union's distinction between wiping the sink but not cleaning the toilet would þe difficult to administer on a daily.basis as to the distinction is quite arbitrary. Moreover the distinction is based very much on one's own subj ecti ve opinion as to what degree the average office worker is responsible for cleaning their own workplace. Similarly, the employer'S suggestion that the ambulance attendants could do bookkeeping while not driving an ambulance but would not be required to pour concrete for an addition to the station house lacks a cohesive underlying rationale from I" , ~ \ ì 10· ~ which the parti es could reasonable predict how to categorize other duties. . 2. Insofar as the employees both eat and slept at their workplace, the analogy to an office worker is not that appropriate for generally speaking office workers do not eat or sleep at their workplaces. One would normally expect a higher degree of involvement in the Cleaning process when you eat and sleep at a premises than if you simply put in a regular eight hour shift and you eat and sleep away from the work location." 3. The obligation to maintain the garage can very clearly fit , wi thin section 60 (c)' in that the ambulance and its 'equipment would constitute lIambulance service equipment". The ~bligation to keep the garage itself clean and tidy relates directly to the obligation to keep the ambulance and equipment in a proper state of IllÌlaintenance, repair and preparation" as it would, be difficult to do so unless the relevant storage areas were not also kept in a proper state of tidiness. We therefore find that, for the reasons set forth above, the POlicy and Procedure on Maintenance of the Station/station Duties sets forth duties contrary to the collective agreement insofar as it requires the ambulance attendants to perform maintenance duties, on the lands surrounding the station. We note that this decision is in no way to, constitute a comment on the employer's policy on snow removal, which we are expressly not commenting on at the request of the parties. Therefore, a declaration is he~eby issued that the said policy . I ~ 11 f and procedure is valid, save and except the followinq provisions, wbich are to be deleted from the policy: 1. paqe 1, Procedures, Item 2/A: Delete lIand grounds" from the last sentence. 2. paqe 2, Owen Sound station, Specific Duties - Day Crews: Delete "Friday - when weather permits, sweep and wash asphalt areas at front and side of station". 3. Page 3, Port Blqin & Rincardine stations - Specific Duties: Delete "Friday - when weather permits, sweep and wash asphalt areas at front and side of station" Delete. IIDuring the sprinq, summer and fall, crews are responsible for the yard maintenance, includinq the cuttinq of the grass and rak.ing of leaves," etc." DATBD at Toronto this 26th day of June , 1991. ISHER . . ONTARIO EMPLOYËS DE LA COUROÑNI: CROWN EMPLOYEES DE L'ONTARIO ~ 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G rZ8 TELEPHONE/TELEPHONE: (4 '6) 326-1388 180, RUE OUNOAS OUEST, BUREAU 2100, TORONTO (ONTARIO}, M5G lZ8 FACSIMILE/TEt..ECOprE .- (416) 326- 1396 November 29 1991 AKBNDMBN'r RE: 572//90 OPSEU (union Grievance) and the Crown in Right of Ontario (Ministry of Health) Please attach the enclosed Appendix A to your copy of the above noted decision. Joan Shirlow Registrar JS/dbg Encl. . . APPENDIX tI A" Owen Sound Emergency Services Inc. I HANUAL of POLICY and PROCEDURE Policy Humber:ÛP120 Date of Last Revision:03/24/90 Page ** 1 I Approved By:Dean Wilkinson - KAIMT,"AMCR qp_~KR ~T^ITnMJSTATIOR·DUTTRS PURPOSE: To ensure that a clean and safe workplace is maintained and that all staff are aware of their responsibilities for same. APPLICATION: Hanagement,Service Duty Officer~Statian Supervisors~Ambulance Officers REFERENCES: The Ambulance Act PROCEDURES: lilt is the responsibility of each and every· employee to maintain a safe and clean station at al¡ times. .' U 2/A schedule in regards to routine maintenance of the ambulance station is posted upon the bulletin board in each statioh a1)d is inc luded as an appendix to this policy.A Daily Station Duty Log will be signed off by the crews to denote that their daily duties have been completed.From time to time,manageDent~the service duty officer or the station supervisors may add additional duties as may be required to Ilaintain the station and grounds. 3/50011 shovelling shall be sufficient to ensure accessibility for the vehicles to and froll the station and, relloval of snow froll around II an doors~fire escapes and on sidellalks,including public sidewalks in front of the stations.Crews will also be responsible to see that salt is spread on all icy surfaces such as driveways~ parking lots. sidewalks and paved areas in front of the station doors. 4/Crews will report in writing on an Incident Report-General,any damage or required repairs to their station and will submit salle to their station supervisor,who will forward it to . manaaoment. 5/Station Supervisors will be responsible for see in, that the ellployees aSII i,oed . to their stations co~plete the assigned station duties. Owen Sound Baergency Services Inc. STATION MAINTENANCE/DUTIES ONEN SOUND STATION GBMHRAL CLEANUP A general cleanup will be completed by the duty crews in the station at 0645 and 1845 hrs. daily.The general cleanup will consist of dusting furniture,wiping tables and chairs, cleani~g the kitchen counter,ensuring all dirty dishes have been washed and put sway, discarding of old newspapers and vacuuming the rugs. SPECIFIC DUTIBS DAY CRRw.£ Wednesday & Saturday - clean garage.wash garage floors & squeegee dry,vacuum & straighten up storage room, clean sink, straighten cupboard above sink, wash floor mats and hang to dry. return floor mats to appropriate locations once dryJensure that garage is orderly and that all equ ipllen t is stored safely and in the proper locations. Friday - when weather permits, sweep & wash asphalt areas at front and side of station Sunday - clean all station windows inside & out,wash/clean garage doors IUJi.HT ~RF.W~ Hcndays.Wednesday. . Fridays - wash kitchen, bathrooll , rear hall floors Tuesday,Thursday , Saturday - vacuum stairs Sunday - clean fridge . microwave Washroolls will be cleaned nightly. ALL r.RF.WV)'fJ. ~HI FTS During the winter months. snow shovelling is the responsibility of all crews on all shifts as per Procedure 3 of Policy Number:OP120, Kaintenance of the Station/Station Duties STATIOR SUPBRVISORS,the SIRVICK DUTY OPPICKR OR HARAGRHBIfT HAY ASSIGR SPBCIAL DUTIBS OR A AS RlQUIRBD BASIS. Owen Sound ¡aergency Services Inc. STATION MAINTENANCB/DUTIES PORT BLGIN . KINCARDINE STATIONS GENERAL CLEANUP A general cleanup will be completed each day prior to 2000' hrs. The general cleanup will consist of dusting furniture, wiping tables and chairs. cleaning the kitchen counter. ensuring all dirty dishes have been washed and put away, discarding of old newspapers and sweeping/damp mopping the floors. SPBCIFIC DUTIES Washrooms will be cleaned on a daily basis. Monday, Wednesday & Fridays - floors 1n the quarters. hallways & washrooms to be washed. Wednesday &: Saturday - clean garage. wash garage floors and squeegee dry. clean sink. wash any floor mats and hang to dry, r'e tu rn f~oor Bats to appropriate locations when dry, ensure that all equipment is stored safely and in the proper locations. Friday - when weather permits,' sweep & wash asphalted areas of the station prop~rty. Sunday - clean all station windows inside & out. wash/clean garage doors. clean fridge & Ilicrowave. " Durin, the winter months, snow shovelling is the responsibility of all crews as per PROCEDURE 3 of Policy NUllber:OP120. Maintenance of the Station/Station Duties. During the spring, summer and fall. crews are responsible for yard Inain tenance including the cutting. of the grass and raking of leaves. etc. STATION SUPBRVISORS.the SERVICB DUTY OFFICBR or HAlAGBHBNT HAY ASSIGN SPBCIAL DUTIIS OM A AS RBQUIRED BASIS.