HomeMy WebLinkAbout1990-1665.Ferrill et al.92-01-09 ONTARIO EMPLOYES DE La. COURONNE
CROWN EM,eL 0 YEES DE L 'ONTA RIO
GRIEVANCE C,OMMISSlON.DE
SE'I-I'LEMENT REGLEMENT
BOARD . DES GRIEFS
180 OUNOA$ STREET WEST, SUtTE 2100, TORONTO, ONTARIO. MSG 1Z6 TEt. EPHO~E/T~LEPHONE: (416) 326-~388
'~80, RtJE DUNDAS OUEST~ BUREAU 2 ~00, TORONTO (ONTARIO). MSG 1Z8 FACStMILE/T~.I..~COPlE : (# ~6~ 326-1396
1665/90, 224/91
IN THE MATTER OP AN ]%RBITRATION
Under
THE CROWN EMPLOYER8 COLLECTIVE B]~tG]~IHING ]tCT
Before
THE GRIBVANCB BETTLEMENT BOARD
BETWEEN
OPSEU (Ferrill et al)
Griever
- aad -
The Crown in Right. of Ontario
(Ministry of~ Health)~
(Alan R. Barker Ambulance Service)
Employer'
BEFORB: W. Kaplan Vice-Chairperson
D. Wintermute Member
M. O'Toole Member
FOR THE H. Law
GRIEVOR Grievance Officer '
Ontario Public Service Employees Union
FOR TEE M. Contini
EMPLOYER Counsel
Mathews, Dinsdale & clark
Barristers & Solicitors
HEARING July 18, 1991
october 7, 17, 1991
2
Introducti.on
By grievances dated September 7, 1990, Douglas J. Ferrill, Douglas A. Ryan and
Daniel B. Gallant, Ambulance Officers with the Alan R. Barker Ambulance
Service in Richmond, allege a violation of the hesLIth and safety provision of
the Collective Agreement. All three grievances seek the same remedy:
"Elimination of standby shifts, and implementation of a regular twelve (12)
hour shift." By grievances dated Apdl 1, 1991, Glen Kirkpatrick, Steven More
and Peter Vanderputten, Ambulance Officers with the Alan R. Barker
Ambulance Service in Oarleton Place, allege a violation, of the health and
safety provisions of their Collective Agreement. 'These three, grievors also
seek, by way of remedy, the elimination of shift work and the implementation
of a regular twelve-hour shift. All six grievances were consolidated, and
proceeded to hearing in Ottawa.
It is useful to set out the relevant, provisions of the Collective, Agreement,
covering the period April 1, 1990 to December 31, 1991
Article 9 - MANAGEMENT RIGHTS
9.01 The Union recognizes and acknowledges that the
management of the Company's business and direction of the
working force are fixed exclusively in the Company, and without
restricting the generality of the foregoing, the Union
acknowledges that it is the exclusive function of the Company to:
(h) determine the number of employees to be employed, the
hours to be scheduled, starting and stopping times, and overtime
required.
Article 12 - HOURS OF WORK AND OVERTIME - CARL. ETON PLACE
12.01 The following sections and paragraphs are intended to
define the normal hours of work for employees working at the
Carleton Place base and shall not be construed as a guarantee of
hours of work per day or per week.
3
12.02 The regular work week shall consist of forty (40) hours
'and the regular work day shall consist of eight (8) hours.
12.03 tn addition to his regular work week, each employee shall
be scheduled for forty (40) hours of standby in each successive
two (2) week period.
ARTICLE 13 - HOURS OF WORK AND OVFRTfME - RICHMOND
13.01 The following sections are intended to define the normal
hours of work for employees working at the Richmond base and
shall not be construed as a guarantee of hours o4 work per day or i
per week.
1'3.02 Employees at Richmond shall be regularly scheduled to
hours of work that average eighty (80) hours over each successive
two (2) week period. Regular work days shall consist of either
eight (8) hour shifts or twelve (12) hour shifts as scheduled by
the Company.
13.03 in the event that the Richmond base. is required to
· initiate a standby system, employees shall be scheduled for forty .
(,~0) hours of standby in each successive two (2) week period in
addition to their regular work week.
ARTICLF 2.~- SAFETY AND HEAl TH
23.01 The Employer will continue to provide healthy and safe
working conditions. The Employer agrees to comply with the
Occupational Health and Safety Act Of Ontario.
It should be noted at the outset that there:are some historical differences in
scheduling between the two bases, that is to say the relationship between
regular shifts and standby shifts. However, for the purposes of this award it
is not necessary to outline those differences. Suffice it to say that atlboth
the Richmond and Carleton bases, employees work-regular shifts, for which
they are paid regular rates, and standby shifts. The standby shifts at both
bases begin at midnight, and employees either remain in facilities provided by
the employer or, if they live close to the base, they can' return home. Upon
being called, employees on standby must be back at the base ready to make a
z~
call within five minutes. More will be said about this below, and more will
also be said about the other conditions of employment.
In brief, the union took the position that the work schedule contravened
Ministry policy and the Occuoationat Health and Safety Act. Introduced into
evidence on the first day of hearing were copies of the schedule for both the
Richmond and Carleton Place Ambulance Services. These schedules indicated
that the combination of regular hours of work with standby service resulted in
employees being required to work for extended periods of time. '
The schedule for the Richmond Base was divided into a four-week cycle. In the
first week of the cycle, one employee would be required to work the day shift
(8:00 a.m. to 4:00 p.m.) on Saturday, followed by the afternoon shift (4:00 p.m.
to 12:00 a.m.) followed by a standby shift (12:00 a.m. to 8:00 a.m.) followed by
another day shift on Sunday. Simply stated, the employee would have begun
work on Saturday morning at 8:00 and worked through to Sunday at 4:00 p.m.
Whether or not the employee was able to rest during his standby shift would
depend on the number of calls received at the base.. The uncontradicted
evidence of the union indicated that Saturday night was one of the busiest
nights of the week, making it likely that the employee working this particular
schedule would.work without interruption for a thirty-two hour period. Other
examples of extended shifts of this kind during the four-week cycle at both
the Richmond and Carleton ambulance bases were reviewed with the Board.
introduced into evidence was a Ministry of Health Memorandum dealing with
shift schedules. Dated March 18, 1991, the memorandum from Mr. Blake
Forsyth, the Regional Manager of the Emergency Health Branch, reads as
follows:
It has come to. our attention that employees are working regular on
site shifts in excess of twelve hours.
Emergency Health Services Branch cannot approve such schedules, as
it is contrary to our position with regards to extended work hours.
We believe that any shift longer than twelve (12) hours in duration
could have detrimental effects in the work environment on patient
care and the oCcupational health & safety of the ambulance drivers,
attendants.
On May 17th, 1982, a Coroner's Jury regarding the death of a Mr.
James O'Neill recommended that the Ministry of Health take a more
active involvement in ambulance service by regulating the maximum
hours of work to be 12 hours, with the minimum hours of rest to be
-12 hours.
A second Coroner's Jury on December 11th, 1987 ,regarding the death
of Mr. Dane Thomas Hawkins recommended that consideration should
be given to the number of hours worked by the ambulance
driver/attendants. The Jury felt that shifts of'twenty four (24)
hours w0u[d'certainly hinder their performance and should not be
worked except in extreme emergencies,
in addition to the above two inquests there has also been numerous
studies conducted regarding extended shift schedules which have all
indicated possible increased risk .for accident and injury as the main
health and safety issue.
If you or your employees feel that sixteen (16) and twenty four (24)
hour shifts are not detrimental to patient care and the health and
safety of alt employees, that is your prerogative, HoWever
Emergency Heaith Services Branch does not share the same
philosophy that you may have taken.
We want to assure you that Emergency Health Services Branch has no
intention of interfering with your labour relations. We simply have
a moral obligation and an obligation under the legislation to ensure
the safe and appropriate delivery of ambulance service to all the iii
and injured patients.
In closing we hope that we have clarified our position in this matter
and please do not hesitate in calling should you have any. questions
(emphasis not ours).
Another Ministry of Health document introduced into evidence stated: "[W]e
believe any shift longer than 12 hours in duration could have detrimental
effects in the work environment on patient care and the occupational health
and safety of the driver attendants," al'though this letter went on to clarify
that what it was referring to was working more than 1'2 hours on a regular
shift rotation.
After reviewing the schedules and the March '18th, 1991 memorandum, the
Board indicated to the parties that it found aspects of the work scheduling
excessive, in particular~those double shifts of :sixteen regular hours fo[lowed
by a standby shift and then a day shift. Employer counsel conceded this point,
and agreed to appropriate revisions that were also to provide for at least eight
hours of rest after any regular shift foilowed by a standby shift. Accordingly,
new schedules were PrePared and introduced into evidence on the second day of
hearing.
The outstanding matter to be determined was whether or not these revised'
schedules constituted an infringement of the Collective Agreement and/or of
the Occupational Health and Safety Act. The union took the position that a
serious threat to the grievor's safety remained and that the Board should issue
a declaration that the grievors not be required to work mere than 12 hours and
that each 12-hOur shift should be followed by at least 12 hours of rest. For
its part, the employer took the position that there was a real distinction to be
made between regular and standby duties, and that it did not infringe upon the
safety of the grievors to work eight hours of regular duty followed by eight
hours of standby duty. Moreover, employer counsel took the position that this
case was not about health and safety, but about work schedules and that, as a
result, the Board was without jurisdiction with respect to it.
The Union Qase
Mr. Douglas Ryan testified first. Mr. Ryan has twenty years of experience in
the field, and has worked at the Richmond base since 1985. Mr. Ryan lives in
Almonte, which is approximately fifty kilometres away from the Richmond
base. Some of the other ambulance officers live in Richmond, and others do
· not. Employees l!ke Mr. Ryan who do not live near the base must stay at the
base during their standby shifts because when called on 'standby, ambulanCe
officers must be in the ambulance on the way to the scene of the call' within
five minutes of receiving the call.
Mr. Ryan described his work to the Board, and the different types of calls
received. These calls range from routine transfers of patients during the day,
to emergency calls involving life-threatening incidents received in the middle
of the night. During the daY shift, approximately 80 percent of the calls are
routine, and the remainder urgent. During the afternoon shift, approximately
80 percent of the calls are urgent and 20 percent routine. After midnight,
generally all the calls received are urgent. While it can vary, Monday, Tuesday
and Wednesday are the quietest nights of the week, ~nd Thursday through
Sunday are the busiest.
Mr. Ryan testified about some of the risks inherent in the job. There a, re risks
from driving fast, and there are risks from patients, such as psychiatric
cases, individuals threatening' suicide, patients in diabetic emergencies acting'
irrationally, violent spouses of patients, and patients with communicable
diseases. Mr. Ryan has been attacked by patients and threatened with a gun.
Mr. Ryan testified that he receives one to eight calls on every second standby
shift, with the weekends being much more active than 'the week. Calls can
range from thirty minutes to three hours. All the calls received on standby are
8
urgent. While there are cots at his b~se, Mr. Ryan does not sleep very well
during standby, 'and he testified that on on busy nights he often does not feel
fit for work. Since August 1990, Mr. Ryan's sick time has increased, and one
reason is the fatigue he feels as a result of working standby.
~n cross-examination, Mr. Ryan testified that he does not tike to work standby,
and believes that it does not do him or his patients any good. Mr. Ryan also
indicated that he would gladly give up the extra standby pay he earned in
exchange for regular shifts followed by at least twelve hours of rest.
With respect to his health, Mr. Ryan was asked some questions about a
business he owns and operates, and he testified that he probably spends
between eight and twenty hours a week working on it. He also works
part-time for the Kanata Ambulance Service, where he works approximately
one shift per month. Some of these shifts at Kanata have followed shifts at
the Richmond base, with the result that there have been periods when Mr. Ryan
has worked for some time without any rest.
Mr. Ryan was asked some questions about the risks of the job, and he agreed
that ambulance officers are instructed not to take any unnecessary chances.
He maintained, however, that the job was risky. For example, even though
there was less traffic after midnight, there was more risk because it was
darker and hard to see. He was also tired when he responded to calls because
he had to wake up in the middle of the night, and also did not have enough
recovery time between shifts. This was another factor increasing the risk.
Mr. Ryan could not recall ever going two standby shifts without receiving a
call. Mr. Ryan has not had any compensable injury as a result of incurring any
of these risks.
Mr. Daniel Gatlant also testified with respect to the Richmond grievance. He
has worked at the Richmond base for five years, and has been full-time since
1988. He lives in Richmond, approximately 1.8 kilometres from the.base, and
in fair weather it takes him six to seven minutes to respond tO a call, even
though he is required to be at the base within five minutes.
When on standby, Mr. Gallant stays at home, and sleeps partly dressed in his
uniform, He told the Board that he does not sleep very well on standby, and
that when his pager goes off his whole family, including, his infant, wakes up.
He is not very fit when calied to work on standby because of being awakened
suddenly add having to move very quickly. Mr. Gallant does not work part-time.
In cross-examination, Mr. Gallant was asked about his failure to report for
duty within the required five minutes when called on standby, and he agreed
that it was a reasonable rule, but that he had made it to work within five
minutes only twice in the last three years. Mr. Gallant generally agreed with
Mr. Ryan's evidence about the volume and nature of calls received on the
different shifts.
Mr. Glen Kirkpatrick testified with respect to the Carleton Place grievances.
He too has significant experience in the'ambulance industry, and he also
worked for a number of years for the Metro-Toronto Ambulance SerVice. In
general, Mr. Kirkpatrick agreed with Mr. Ryan's evidence about the nature and
extent of risks associated with ambulance work and the standby shift. Mr.
Kirkpatrick has been pushed around by patients, and testified that any of the
'benefits of tess traffic at night are outweighed by poor night-time vision and
the need to travel at high speeds given the urgent nature of the calls received.
Mr. Kirkpatrick lives in Carleton Place,. and stays at home during his standby
10
shifts. By "pushing it" he can respond within five minutes. Mr. Kirkpatrick is -.
not as fit on standby as he is during his regular shift because he is more
fatigued, and because it is the middle of the night. This was not the case when
he worked in Toronto, because the service in that city operates on twelve-hour
regular shifts, with at least twelve hours rest between shifts. As a result,
even when working nights, Mr. Kirkpatrick always had enough time to recover
between shifts. Mr. 'Kirkpatrick works with Mr'. Mclssac, who is the
owner/operator of the Barker Ambulance Service and wl:,o is also an ambulance
officer. Mr. Kirkpatrick testified that Mr. Mclssac told him that he agreed that
twelve-hour shifts were superior to regular and standby shifts.
Mr. Kirkpatrick testified about the ratio of routine to urgent calls on the
different shifts. On standby, virtually all calls received are urgent, with the
weekend nights being the busiest and most demanding. In preparing for the
grievance, Mr. Kirkpatrick compiled some statistics setting out the number and
nature of calls received on the standby shift for a period of time beginning in
January 1990 and ending in June 1991. It was agreed by the parties that these
statistics and those prepared by the employer could be used up to July 1991,
at which time this matter began to be heard. The statistics prepared by Mr.
Kirkpatrick indicate that calls were received approximately every other night,
and that they were generally urgent. On some occasion:s, ambulance officers
on standby responded to two calls or more per night.
In cross-examination, Mr. Kirkpatrick testified that his job in Toronto was
less fatiguing than that in Carleton Place, but that it was equally as stressful.
The increased fatigue in Carleton Place was the result of the standby shift,
and Mr. Kirkpatrick reported that his sick time has .increased since coming to
work in Carleton Place, although he has never made a compensable claim for
fatigue. Mr. Kirkpatrick agreed that his statistics demonstrated that the
11
average standby calt was Under one hour in duration, and that on average, there
were. thirteen to fourteen calls a month. Like Mr. Ryan, Mr. Kirkpatrick worked
part,time, from time to time, in Almonte. So did some other employees.
The Employer's Case
As the owner/operator of the Richmond and Carleton Place Ambulance
services, Mr. Mclssac testified with respect to all the grievances. Like'the
grievors, Mr. Mclssac has considerable experience in the industry, and still
works as an ambulance officer. Mr. Mclssac told the Board about some of the
changes that were made in the Richmond schedule as a result of receiving
increased hours from the Ministry of Health. As previously noted, these
changes are not material to the issue before the Board, and so it is not
nece. ssa;ry to review them here. Mr. Mclssac testified that the schedule in
place prior to the first day of hearing had been in place, with only minor
changes, for years.
After the first day of hearing, the schedules for both Richmond and Carleton
Place were changed. There are still regular shifts followed by s~ndby shifts,
but in such cases, there are now at least eight hours between the end of a .
standby shift before the start of another regular shift;
AS far as Mr. Mcfssac is aware, the employees who stay at home during their
standby shifts respond within five minutes. When he works standby he
responds within five minUtes because he is well organized. Employees who
remain at the base can sleep on the cots that are provided. There are other
facilities as well, including a washroom and shower, crew area, televisions,
VCR's, etc. Mr. Mclssac testified that the emptoyees are free to come e. nd go
as they wish. During standby shifts, employees have no duties to perform.
During regular shifts, employees have a number of base duties.
If called out on a standby call, employees must, upon their return, ensure that
the ambulance is equipped for the next call. They do no1, in contrast to the
regular shifts, have to wash it or perform other associated tasks. Whether on
standby or not, employees must, following calls, fill out various forms.
Mr. Mclssac testified that in general, employees at Carleton Place are called
out on standby approximately every other night. In Richmond, the cali rate is
slightly higher, with an average of twice ever), three nights. In preparation
for the grievance, Mr. Mclssac reviewed the relevant statistics and a number
of charts and diagrams were introduced into evidence, and these documents
indicate the volume and duration of calls. In April 1990, for instance, at the
Carleton Place base, there were 14 standby calls, with the average call lasting
48.9 minutes. In May 1990, there were nine ,.standby calls, with the average
call lasting 68.2 minutes. In October 1990, there were 11 standby calls with
the average call lasting 76.3 minutes. In Richmond,' in August 1990, there
were 18 calls with the average call lasting 49.. 1 minutes. In October 1990,
there were 29 calls with an average call lasting 49.9 minutes. In December
1990, there were 25 calls, and the average call lasted 67.2 minutes. A chart
introduced into evidence indicated that standby calls constitute a fraction of
the total number of calls received, while a pie graph displayed this
information somewhat differently, showing the number of staffed hours
versus the number of standby hours.
Mr. Mclssac testified that in the last few years he was not aware of any
injuries that were related to fatigue from excess hours worked, and there
were no compensable claims made for fatigue.
In cross-examination, Mr. Mclssac agreed that a high proportion of standby
13
calls were emergency calls. He atso agreed that if a major clean-up of the
ambulance car was required 'after making a Call, it might not be reflected in
the average number Of minutes per call.
The second and final witness for the employer was Mr. Blake Forsyth, who is
the Regional Manager for the Emergency Health Services Branch for Eastern
'Ontario. Mr. Forsyth was asked about the memorandum cited earlier in this
decision, and he testified that it was sent as a result of information received
from the Canadian Centre for Occupational Health and Safety. In Mr. Forsyth's
view, the information about the advantages and disadvantages about extended
work days and night shifts was equivocal, but he felt a responsibility to 'bring
that information to the attention of the ambulance services in his region. Mr.
Forsyth was asked why the word "regular" in his memorandum was underlined,
and he testified that he considers regular to be those times that an employee
is scheduled to be at his or her place of work performing his or her job. This ..
was, in his view, to be contrasted with standby work.
Mr. Forsyth testified that in writing this memorandum he was. concerned about
sixteen hour regular shifts, as well as about twenty-four shifts being
discussed in some communities. Mr. ForsYth told the Board that his"
memorandum was not directed at periods combining regular work with standby
work. Standby work was an important part of the ambulance system in
Ontario. For every three hours of regularly scheduled work in Ontario, there
was one hour of standby work. Not including Metro-Toronto, each year some
· 1.5 million hours of standby is scheduled, compared with 5.4 million hours of
regular'work. Twenty-four of the the thirty ambulance services in the Eastern
Region incorPorate standby with regular shifts. Many of these different
services provide standby with schedules similar to those at the Richmond and
Carleton Place bases, and Mr. Forsyth testified that standby is an economical
14 t
way of meeting a need; for these bases receive a call volume not meriting
provision of full-time service. If the call volurne of a service increases to the
point where full-time service is more economical than st~ndby service
(because of the increased overtime) then the service is funded for full-time.
In general, a service would have to receive two calls a standby shift to
warrant funding to provide for full-time regular service. In Mr. Forsyth's
view, the revised schedules for the Richmond and Carleton Place bases do not
pose a health and safety threat to either the employees or the public.
In cross-examination, Mr. ForsYth insisted that his memorandum covered only
regular work hours, and was not intended to apply to a case where regular
hours were combined with standby hours. Introduced int:o evidence were two
documents from the Canadian Centre for Occupational Health and Safety,
dealing with the extended work day and rotational shiftwork. Mr. Forsyth told
the Board that he had read these documents and that he did not dispute their
contents or their conclusions. Various sections of the documents were drawn
to Mr. Forsyth's attention. For example, the documerlt dealing with rotational'
shiftwork states that lack of sleep may aggravate decline in performance, and
that performance levels are lowest between 3:30 a.m. and 5:30 a.m. Mr.
Forsyth did not disagree with this. He was then asked what effect might be
anticipated if an employee worked the afternoon shift anti then went on
standby and was called in to work in the middle of the night. It was put to Mr.
Forsyth that this might present a threat to the health and safety of the
employee and the public. Mr. Forsyth did not agree with this suggestion,
however, testifying that the example must be placed in context, and that
context was a schedule that provided for rest periods, not to mention the
intensity and frequency of the standby work. Mr. Forsyth was asked other
questions along these lines, and his answers were generally to this effect. Mr.
Forsyth testified that ambulance operators are responsible for the labour
15.
relations of the ambulance services, and that his responsibility was limited to '
bringing relevant information to their attention.
Mr. Forsyth was asked whether he agreed with the recomm, endations in the
Coroner's Jury referred to in his memorandum suggesting that twelve hours of
work should be followed by twelve hours of rest. He replied that he was of the
view that there should be at least eight hours of rest in a twenty-four hour
period, but that there were some ambulance services in his jurisdiction, such
as the one at Osgoode, which combined a twelve-hour regular shift with a
twelve-hour standby shift. The reason Mr. Forsyth wrote his memorandum was
to address the problem of shifts of sixteen and twenty-four hours. Mr.' Forsyth
will not accept shifts of sixteen and twenty-four hours; he will, however,
except shifts such as those now provided for in this case, and one reason for
this was the difference between regular work and standbY work.
Mr. Forsyth was questioned about that difference, and his evidence can be
summarized to the effect that the main difference between the tWo, when
employees are actually called out to work, is that employees called out on
standby are not required to do base duties or to wash the ambulance after.
returning to base. The frequency of calls on standby is alSo much less. Insofar
as responding to ca[is is concerned, the duties are exactly the same.
Union Argument
Union counsel argued that the employer has violated Article 23 of the
Collective Agreement, and was also in contravention of section 14 (2) (g) of
the Occupational Health and Safety Act. which provides that an employer shall
"take every precaution reasonable in the circumstances for the protection of a
worker." Counsel noted that the scheduling system in use prior to beginning of
this hearing contravened the Ministry's suggested policy. -As that scheduling
system was changed at the direction of the Board, it is not necessary to
review counsel's submissions with respect to it.
In counsel's view, even after the scheduling system changed, the employer
remains in contravention of both the Collective Agreement and the
Occupational Health and Safety Act because it is not taking every reasonable
precaution for the health and safety of its employees. In the union submission,
the Ministry of Health has indicated that twelve hours of work should be
followed by twelve hours of rest, and this was not taking :place in the instant
case. Twelve hours on followed by twelve hours off was the reasonable
precaution that should be taken in this case. In some cases, the new schedule
provided for an employee to work a regular eight-hour st'..ift followed by a
standby shift. This employee would then have only eight hours off before being
required to return to work. In 'these circumstances the employee would not be
receiving the rest he or she required, and depending on 'the 'call volume an
employee could easily end up working more than sixteen hours at a time.
Depending on the shift schedule, this could happen for three or four days in a
row. Given the inherent risks associated with the job, and the increase in
those risks during the night shift, counsel argued that there was enough
evidence before the Board to demonstrate a health 'and .'safety violation of the
Collective Agreement and the Act.
Counsel referred to some of the information from the Canadian Centre for
Occupational Health and Safety dealing with rest deprivation, and applied this
information to the evidence provided by the union witnesses about what it was
like being awakened in the middle of the night to attend 1:o a standby call. Not
only did the ambulance officers sleep poorly while on standby, they were
required to jump into action, and in some case drive at breakneck speeds to
arrive at the base within five minutes, and thengo out on a call which was
17
almost certainly an emergency of one kind or another. And all of this was done
after working a regular shift, which was to be contrasted with the situation
where an employee is scheduled to work a regular rotational shift.
In counsel's submission, it was obvious that the grievors were not receiving
quality sleep, and this was having an effect on their health and safety.
Counsel referred to Mr. Kirkpatrick's evidence about how he was more fatigued
working in Carleton Place then he was working in Metro-Toronto. In Counsel's
view, the Ministry's policy was clear, that employees should receive at Feast
twelve hours of rest between shifts which should b~ no more than twelve
hours in length. White Mr. Forsyth testified that rest could be consistent with
standby service, union coUnsel urged the Board to find that this could not be
the case, particularly when standby service can, on some occasions, turn into
regular service depending on the number of calls received.
Counsel noted that in his evidence, Mr. Mclssac did not say that standby
service was safe, and argued that it was money, not health and safety, that
was in issue 'in.this case. In counsel's submission, the union need not show
actual harm to make out a heatth and safety violation; all it need show is an
unacceptable risk of harm, and referring to several authorities, including
Union Grievance 1190/89 (Stewart) and S.tockwetl 1764/87 (Wilson), counsel
argued that this test had been met. Counsel argued that the risks to the health
and safety of the employees and the public by the standby shifts were well
established by the evidence, and it did not matter that no serious accident had
yet occurred. What was important was that the schedules created the real
possibility of such accidents taking place. In short, by requiring standby
shifts, the empl°yer was not taking every reasonable precaution for the health
and safety of its employees, and union counsel urged the Board to issue a
declaration to that effect.
Emplgyer Argument
Counsel for the employer began his submissions by noting that it was not an
easy matter to determine whether a work schedule raised a health and safety
risk, and he observed that the onus was on tile union to ,demonstrate that it
was. In counsel's view, the union had not met its evidentiary burden.
Counsel argued that there was no evidence before the Board that the work
schedules in this case caused real health and safety problems, and in this
regard he noted the absence of any claims for compensable injuries or
accidents said to be the result of an excessive schedule.. In counsel's
submission, the union must, in circumstances of this kind, come forward with
medical or scientific proof to prove its case, and it referred to the Alaks~
1130/84 (Brent) case as an authority on point. In counsel's view, it is not
enough for the grievors to say that they feet tired or. fatigued; the union.must
demonstrate a nexus between the schedule and the alleged risk, especially
given the evidence in this case that a number of the employees are not so
fatigued so as to preclude additional part-time work. Counsel argued that the
personal observations of interested parties do not meet the required standard
of proof.
Counsel observed that much of the time on standby will be spent at rest, and
counsel noted that on the revised schedule there were only six times in the
four-week work period that an employee had less than twelve hours off
between shifts, notwithstanding the fact that each employee worked 10
standby shifts in that four-week period. Counsel also referred to the evidence
detailing the number and frequency of calls on standby, and argued, given the
Iimited number of calls and their relatively short duration, that it could not be
said that a health and safety risk was occurring. On aw.~rage, employees in
Carleton Place end up working once every second standby shift, while
1 9
employees in Richmond end up working a little more than once every second
standby shift.
In counsel's submission, Mr. Forsyth's evidence was extremely relevant, and he
noted that the work schedules at issue in this case were not out of line with
work sChedules throughout the region. In counsel's submission, some clear
proof was necessary before the Board should issue an order setting aside a
practice as prevalent as the one in issue here. Counsel noted that the
impugned schedules were not some new employer initiative, but had instead
been in operation for many years. Moreover, counsel argued that there was a
difference between regular and standby work, and suggested that Mr. Forsyth's
memorandum should be read with that difference in mind.
Turning to the Collective Agreement, counsel argued that the emptoyer in this
case has the right to schedule hours, and he pointed out that the. union appears,
by the wording of Articles 12.02, 12.03, and 13.'02, 13.03, to have accepted the
predecessor schedule which, was even more onerous in terms of standby
requirements and extended shifts then the revised schedule. In counsel's
submission, the union agreed to its members working standby shifts, and the
Board had no basis for setting aside the terms of this agreement. Moreover,
counsel pointed out that at the same time the union agreed to standby shiftS,
it also agreed to a provision that stated that the emploYer "will continue" to
observe the Occupational Health and Safety A(;t. This suggested, counsel
submitted, that at the time of negotiating and signing this Collective
Agreement the union, did not consider the schedules now in' issue to be a
contravention of either the Collective Agreement or the Act. In these
circumstances, counsel argued that a material change in the work schedule
should be required before a grievance could be established. There being no
such change, except for the better, counsel argued that the grievances should
20
be dismissed.
Union ReDly
In reply, counsel disputed the evidentiary burden suggested by the employer,
and argued, moreover, that this was not a case where the union alleged actual
harm. In such a case, the union might be required to establish that harm.
Rather, this was a case where the union alleged the possibility of harm, and in
such a case the evidentiary burden was different. Instead of having to prove
the harm, all the union had to establish was that the possibility of harm was
real, and that it established a violation of the Collective Agreement. In this
regard counsel referred the Board to .Bai.n 1102/87 (Ratushny). Counsel argued
that this threshold set out in this case was met. Counsel submitted that the
union was under no obligation to lead expert evidence on the possibility of
harm. Put another way, where health and safety is concerned, the Board need
not hear evidence of an ambulance officer falling asleep at the wheel to
conclude'that the possibili{y of that taking place is real.
Counsel also argued that just because the Collective Agreement contained
language to the effect that the employer "will continue" to provide for health
and safety does not mean that the union has waived it.~; right to bring
grievances alleging an infringement of this provision. Counsel noted that the
parties are not entitled in law to contract out of the Occupational Health and
Safety Act, and that if a provision in the Collective.Agreement is in violation
of that Act, whether or not the Agreement says the employer "will continue" is
of no consequence. Counsel noted that circumstances change, and he referred
to the evidence of Mr. Mcissac that call volume was increasing at both bases.
Counsel argued that changes like that provide a basis for grievances like this.
21
Decision
After carefully considering the evidence and arguments of the parties we have
come to'the conclusion that these grievances'must be denied. Before turning
to the facts, it is useful to briefly discuss the evidentiary burden that must be
met.
In Bain_ the.Board distinguished the Alaksa decision:
If we were to apply the test of requiring the Grievers to establish
that their health problems were "definitely" attributable "only" to
the shift schedule, we would be imposing an impossibly high burden
upon the Grievers which is not supported by the wording of Article
18.1. We are of the view that the Board in Alisa used the words
"definitely'' and "only" in relation to the evidence and arguments
presented in that case. However, the operative words for the
interpretation of Article 18.1 are to be found in the earlier part of
the passage cited above, i.e. "the Union must establish a causal
connection on balance of' probabiIities."
A 'causal connection" may be established by proof that the schedule
is one factor as opposed to the "only" factor causing health'
problems. Moreover, proof on a balance of probabilities does not
require that the proof be definitive. It merely requires tha~t the
causal relationship be "more likely than not." However, even if the
Griever meets this test, that does not end the matter since Article
18.1 does not speak in terms of "causal connection" or "balance of
probabilities."' Rather, it speaks of the Employer making
"reasonable" provisions for health and safety and of reasonable
co-operation between the Employer ~tnd the Union for the promotion
of heaith and safety ....
The end result, therefore,, is that where there is a factor.or where
there are factors which generate the anticipation of risk to the
health and safety of employees, the employer must act reasonably,
in all of the circumstances, to reduce such risk. In the grievances
before us, the evidence clearly established that att shift work
inevitably has an adverse effect on Sleep patterns and that health
problems may occur as a result. Obviously, this does not mean that
shift work must 'be abofished. On the other hand, where there is a
clearly identifiable factor which, on balance, increases the risk to
22
health by more than a marginal degree, the Employer should be ~'
required to take steps to eliminate or neutralize that factor
provided that it is reasonable to do so (at p. 9).
This finding is in genera[ accord with the rationale of the U_niqn Grievance
case cited above where the Board said the "Union is not required to prove
actual or real harm in order to establish that reasonable provisions for the
health and safety of employees have not been made" (at pp. 18-19).
We are in agreement with the reasoning in both the UniQrt Grievance and
cases. Moreover, like other panels of this Board, we are of the view that
"reasonable provision" does not mean "every provision." And we are aisc of the
view that what is reasonable will depend greatly on the facts of each case,
and must involve a balancing of interests of the employees and the employer.
One relevant consideration in the balancing of these interests may be the
terms and conditions of the Collective Agreement Where.
Obviously, the fact that no employees have been injured or have submitted
compensable claims is not determinative of this case. It is a factor that can
be considered, but the absence of injury is not probative of anything other than
that particular fact. The evidence in the instant case is uncontradicted that
the grievors feel less alert while on standby duty, and that the risks of the job
increase at night and on weekends. Materials from the Canadian Centre for
Occupational Health and Safety indicate that night-time work can have
negative effects on workers. There is really no question about any of this, for
it is a matter of common sense that an employee called out of bed in the
middle of the night to respond within minutes to a serious medical emergency
will not be as alert and able to perform his or her duties as an employee
working a regular shift. However, the question that must be asked is whether
this evidence, simpiy stated, is sufficient to maintain the grievances alleging
a health and safety violation and to support an order directing this employer to
eliminate these longstanding standby shifts. Our answer to this question is
both yes and no~ ~ '
We find that the work schedules in effect at the time the grievances were
fi[ed violates the health and safety provisions of the Collective Agreement.
The extended work periods of those schedules more.than satisfied the union's
burden of proof. No expert evidence was necessary to establish that a shift of
32 hours raised the real possibility of occupationa~ harm. Acc0rdinCy, the
grievance is granted in part and we declare that the health and safety
provision was, prior to the hearing of this matter, infringed. That situation,
however, changed on the first day of hearing and the old schedule is no longer
in effect. It remains for us to determine whether or not the revised schedules
constitute a violation of the Collective Agreement.
While we find. the grievors' evidence about fatigue and levels of alertness.
credible and relevant, we do not find that the new schedule places the grievors
in a position of risk requiring elimination of standby duties. Given the
frequency and duration of standby service, as indicated in the evidence and
discussed in this award, it cannot be said, as it could be with respect to the
32-hour shift, that the health and safety of the grievors have been placed in
unnecessary risk, some risk being part and parcel of ambulance officer
positions. We are not satisfied that the standby shifts are "more likely than
not" to lead to an inc"eased assumption of unnecessary risk.
Our conclusion in this matier is buttressed by the terms and conditions of the
Collective Agreement. That document clearly sets out the agreement of this
employer and this union, that members of the bargaining unit will work
standby shifts. In agreeing to standby shifts, the union agreed to some
adverse impact on sleep patterns. That being so, has the employer discharged
its obligation to take reasonable precautions for the health and safety of its
employees? We find in this case that the ernployer is now discharging its
obligation to its employees as a resuft of it having revised the work schedule.
The revised schedule significantly limits the length of time that an empfoyee
may be required to work, as wetf as ensures at least eight hours of rest, and
generally twelve, between shifts, Moreover, appropriate facilities are
provided for the employees.
We agree with the submission of union counsel that the parties cannot
contract out of the Occupational Health ¢n¢ Safety A~;t. We also agree with
union counsel that just because the Collective Agreemertt states that the
employer "will continue" to provide healthy and safe wor~;ing conditions does
not mean that conditions, such as work schedules, in effect at the time the
Agreement was entered into are "frozen" and cannot be subject to challenge
under Article 23.01. The facts of this case indicate that such a'position
cannot be maintained because the old schedule c{early presented occupational
health and safety concerns, and we have made a finding to this effect.
Nevertheless, it is our view that this Agreement explicitly contemplates that
standby shifts will be worked, and for grievances calling for the elimination
of those shifts to succeed, given this explicit provision ancl given the fact that
the schedule has now been significantly revised, the union must persuasively
demonstrate that the schedule and working conditions will more likely than
not result in the possibility of unnecessary risk to the health and safety of its
members, it must also show that the employer has nOt taken reasonable
precautions. This evidence need not be given by "experts", but what evidence
is brought forward must be compelling, particularly where 1:he union has, as it
has in this case, agreed in the Collective Agreement to the performance of the
subsequently contested work.
25
Simply put, neither.the evidence provided in this case of the impact of standby
on these grievors, nor the frequency, character and duration of standby calls,
persuades us that' the revised schedules now in question are more likely than
not to result in the possibility of unnecessary risk. Nor does this evidence
satisfy us that the employer has failed to take reasonable precautions, all
things considered.
In the' final result, the grievances are diSmissed.
DATED at Ottawa this 9~:~,day of Ja.~a~, t992.
am Kaplan
Vice-Chair
'! Concur" see addendum
D. Wintermute
Member
'Toofe '
Member
! have read the Chairperson's award, and concur. However, I also
wish =o add the followin~.
I mu. sC stress ~he Board's conclusion as s~:a~ed on page 23 o~
award. These grievances have been &11smd in par~, and ~he Board
declar.es. It was obvious ~o us =haC a schedule .~ha~ required
ch~r~y =we (32) hours of work; wh~ver the, combinat~on o~
on-s~Ce hours and s~and-by ~ime, cleac'ly viola=ed both
Collective Agreement and the 0ccupa~ional Health and S&~ecy
=he Board's determina~on on the original ~chedules before us, it
was too early for us Co be able Co a~sess evidence under tho new
schedules ~nd =heir ~acc on health and safe~y. Pur~hermor~, while
the Union may have agreed Chac members of ~he barga£nin~ uniC will
work s~and-by ehl£ts, ~he 9azaLea canno~, con,fac= out o~
OcCUpa=ional Heal=h and Safe=y AeC. I= ~her~fore =emains Co be seen
w~at effect ~h~ revised schedules will have~ and whether in
prac=ice ~hey violate =he Collea=lve A~ee~nt and =he 0~cupaCtonal
Heal=h ~nd Safety Au=.
Da~ed a~ Toron~o, ~h~B 23~. day of ~~r, 1991.
Union