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HomeMy WebLinkAbout1992-1351.Union.95-09-28 c-~ \ '''~~:~\*'. EMPLOYES DE LA COURONNE It; 'l"'1:'"4,..I'!tijf:).'~"1~~"",," ONTARIO "~;r"",,,,8J;".t"!~, >.>c CROWN EMPLOYEES DE L'ONTARIO ~t... \,~~'\'~.~'" ""~A . \j{'~ :,t~~ .";""",.,<<c.4",,,'t'-I,".. GRIEVANCE COMMISSION DE II_SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE.2100, TORONTO, ONTARro. MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388. 180,RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG IZ8 FACS/MflE/TElECOPIE (416) 326-1396 GSB # 1351/92 OPSEU # 92F167 IN THE MATTER OF AN ARBITRATION " Under THE CROWN EMPLO~EES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Health) District of Halton & Mississauga Ambulance Service Ltd Employer BEFORE 0 Gray Vice-Chairperson I Thomson Member - M O'Toole Member FOR THE S Philpott GRIEVOR Counsel ~Koskie & Minsky Barristers & Solicitors FOR THE B Baldwin EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING May 26, 1993 January 18, 1995 --- , ~. if Decision The Distnct of Halton & Mlsslssauga Ambulance Semce Ltd. (hereafter, "the employer") operates an ambulance service from 8 ambulance stations in various locations in and between Burlington and Mississauga, IncludIng Its head office in OakVllle. In 1992, In response to a requirement of the Mlmstry of Health, the employer Instituted a mandatory hfting training program. The employer required that employees take this training, but gave them a choice whether to do so during or outside of their regularly scheduled hours of work. The employer told employees that if they took the course otherwise than during 1 I theIr regularly scheduled hours of work, they would eIther be paId for the additional time so spent at their regular hourly rate or given banked tIme off, at the employee's option. More than half of the affected employees chose to take the tralmng outside theIr regular hours of work. The union filed this grievance dated August 14, 1992 STATEMENT OF GRIEVANCE We grIeve that the employer IS ill vIolatIOn of the collective agreement artIcle 13'03 regarding mandatory lUting training program. SETTLEMENT DESIRED That all employees that have or mtend to attend these mandatory trammg programs be paid at the premlUm rate of 1 Y2 trmes theIr hourly rate, If attended on their own time. The employees who receive the trainmg while on duty will be compensated Y2 time their hourly rate of pay The traimng proceeded as planned. Mfected employees were paid as the employer saId they would be. The grievance was referred to arbitration. Issues The fundamental issue raised by this grievance is whether, as the UnIon contends, employees who attended these tralmng programs outSIde of their regular hours should have been paid at a premium. rate for that time. (The UnIon dId not pursue the claIm In the last sentence of Its gnevance that those who attended the training durIng theIr regular work hours were entitled to a J .. -" ~......-.'- Ll - 2 - premium rate) The union says that time spent at traImng reqUIred by the employer is work time, and relies on Article 13 03 of the collective agreement: 13.03 Where an employee works in excess of his normal weekly average (forty hour 01: forty-two hour average as the case may be), he shall be paId for each hour worked m excess of the normal weekly average an amount of one and one-half (1~) tunes hIS regular hourly rate. The employer relies on ArtIcle 2301. ARTICLE 23 TRAINING 23.01 The Company will endeavour to schedule in-house trammg seSSIons and AL.S. traming during regular workmg hours. In the event that thIS IS not feasible, and such traming occurs outside regular hours, the employee will have the optIon of receIving his regular straIght tune rate of pay for each hour of such trammg or the banking of such hours to be used at a tune mutually agreeable to the employee and Company, \ but in any event, .before the end of the fiscal year (i.e. April 1 to March 31), m which the hours were banked. This understandmg .does not apply to any tune spent by an employee in obtaining the followmg' E.M.C.A, C.P.R., First Aid CertIficate, Driver's LIcense, or any recertification including AL.S. procedures. The union says that Article 23 01 does no more than confirm that employees wIll be paid for the tIme spent at any m-house training (a m~tter which might otherwIse be m dIspute m the case of traImng which IS not mandatory) and that Article 13 03contmues to govern what employees are paId when the traImng IS mandatory The umon also says that ArtIcle 23 01 does not does not apply m the CIrcumstances of thIs case because these were not "m house training sessIOns" and also because the employer dId not endeavour to schedule them during regular workmg_ hours The Facts - Although the. employer had previously offered voluntary traImng, tlus lIftmg traImng was the first tram~ng that employees had been reqUIred to take. The lIftmg traImng program was announced in a memo to employees from Peter Dundas, District SupervIsor, dated June 23, 1992 It is mandatory that all staff partIcIpate m the Luting Program developed by the Ministry of Health. Dates have been selected to conduct trammg seSSIons. The dates selected are on both A and B sides of the shut schedules and there are two sessions on each date (one at 08:00 hours and the other at 13'00 hours) Attendance at a trammg session will be under the same condItions as previous traming and review sessions (i.e. replaced on shift u ~ ~ j - 3 - ,tJ possible It will not be possible to replace on shut during July and August, straight trme overtune or heu tune) } Morning (commencmg at 0.8:00 hours) and afternoon (commencing at 13-00 hours) seSSIOns will take place on the following dates: July 20 & 21 August 17 & 18 ) September 22 & 23 October 20 & 21 Spaces for each class is limited to eight. Conflicts that arise will be settled l ") based on seniority All employees must indicate which session they will be attendIng by no later than July 15, 1992. Employees who cannot attend must supply the undersigned with Written documentation as to reasons why they cannot attend. Please notify the DIStrict Supervisors office as to the session you will attend. QuestIons and/or concerns wIth regards to the above can be drrected to your immemate SupervISor The training was conducted by members of the employer's supervisory staff at the employer's head office m Oakville, where It has a traImng room, spare eqwpment and other facihtIes it needed to provide- the traImng TraImng J sessIOns took an average of two to 3 hours each. Mr Dundas testified that some of the employer's ambulances are operated on weekdays dunng the day only, by crews of driver/attendants worlung 8 hour shifts 5 days per week, while other ambulances are operated 24 hours per day, 7 days a week by crews rotating through 10 hour day slufts and 14 hour mght shifts on a 4 day on, 4 day off schedule whIch averages 42 hours of work per week over a 32 day cycle. He said that the pairs of course dates listed in the memo of June 23 were selected so that for employees worlung 4 day on, 4 day off schedules one day of each pair was a scheduled work day and the other was a scheduled day off. Employees who normally worked out of the Oakvllle location could take the course dunng theIr normal worlung hours wIthout bemg replaced, but ran the nsk of bemg called away (as some were, m fact) and havmg to complete the course on another occasIOn. Employees who normally worked out of other locations could take the course dunng worlung hours only if they could_be replaced by part-time workers, which was not possible dunng July and Aug'USt. Mr Dundas testified that although some employees had to have course / dates assigned to them, the majority of employees responded to the memo of ~ June 23, 1992 by advising management of the day on whi~h they would like to take the course In the result, about 20 employees took the course durmg theIr regular worlung hours and were replaced, whIle over 50 chose to take It on a day ---------- .~. -~ ,-~ \\ - 4 - off. Of the latter group, 3 banked time off m heu and the rest were paId at theIr straight time rate. So far as Mr Dundas knew, no. employee had complained about not getting the dates he or she wanted. In cross-exammation, Mr Dundas acknowledged that the schedule set up m his memo of June 23 was not dIctated by the MImstry of Health. When asked what he took into consIderatIOn in setting those dates, he said he selected them so that all ~hose workmg 4 day on, 4 day off cycles had an equal opportumty to chose between takiIlg the course durmg regular hours and taking It outSIde of regular hours. ,- In the course of submIssIOns made at the conclUSIOn of the eVIdence on the first day of hearmg, issues arose m respect of which counsel for the employer asked for an OpportunIty to reopen its case and introduce additional evidence. We granted that request, and set another heanng date Th,at date was later cancelled by the parties, who some months later then asked that It be rescheduled. On the rescheduled second day of heanng, Ron Liersch, the employer's assistant manager and part owner, gave evidence about the employer's past practice m applying regular and premium pay rates in a vanety of circumstances. In the course of lus testimony he noted, as Mr Dundas had earher, that when voluntary traIning relatmg to ALS recertIfication had been scheduled employees had been gIven the same offer they were gIven here that they could either take the training during their regularly scheduled working hours or take it outside of theIr regularly scheduled workmg hours and receIve pay for the traIning time at theIr straight time rate or banked time off m heu. It is unnecessary to recount Mr Liersch's other testimony because nothing turns on It m VIew of our conclUSIOn on the Issues to wmch It was dIrected. Argument Counsel for the UnIon argued that because tlus hftmg. traimng was mandatory, attendance for and partIcipation in It constituted work for whIch employees were entitled to be paid. Re Ajax and P7,ckenng General Hospaal and Nurses' Assoc~at~on of the Ajax and P7,ckenng General Hosp~tal (1975), 8 L.A.C (2d) 440 (Weatherill), Re Allwd Chem~cal Canada Ltd. and Umted Automob~le Workers, Local 89 (1975), 8 L.A.C (2d) 26 (O'Shea) and Re Stemberg Inc. and Umted Food and Commerc~al Workers Umon. Local 486 (1985), 20 L.A.C (3d) -.....:.......:......~".. ; .', ,~ ~ ..i - 5 - It 289 (FOISY) She submItted that Article 23 01 did no more than confirm that employees would be paid for the tIme spent at the tralmng (a matt~r which mIght otherwise be in dispute in the case of training WhlCh IS not mandatory) and that Article 1303 continued to govern what employees were to be paid when the training is mandatory Union counsel further argued that these were not "In house traInlIig sessions" of the sort contemplated by Article 2301 because (except for workers who worked out of the OakvIlle base) the tralmng did not take place at the base from which workers ordinarily worked. She also argued that Article 23 01 dId not apply because the employer had not endeavoured to schedule tralmng sessions during regular working hours. Counsel for the employer argued that these were "In house training seSSIOns" within the meaning of ArtIcle 23 01 because the tralmng was provIded by its own forces on ItS own premises. He submitted that there was no basis for a finding that the employer had not satisfied the reqwrement of ArtIcle 23 01 that it "endeavour to schedule in-house traimng sessions during regular workIng '\ hours," and saId that the word "feasible" In the second sentence of that artIcle merely meant "convement." He argued that even if the employer did fail to make the reqwred "endeavour", the artIcle stIll governed the pay rate for the tralmng time. ;He submItted that the artIcle went beyond confirming that traimng tIme would be paId time and expressly determined the rate at whIch that tIme wIll be paid. To the extent that ArtIcle .23 01 appeared to conflict wIth ArtIcle 13 03, he said, the conflict should be resolved by resort to the well known rule that a specIfic proVIsIon .prevaIls over a ~general one. Brown and Beatty, Canadtan Labour Arbttratwn (3d) at ~4.2100, Re Canadtan Westmghouse Ltmtted and Um~ed Electncal, Radw & Machme Workers, Local 512 (1955) L.A.C 2101 (Hanrahan) at 2104, Re Hoover Co Ltd. and United Electncal, Radw & Machme Workers of Amenca, Local 520 (1981),29 L.A.C (2d) 162 (McLaren) at 167, and, Re Partek Insulatwns Ltd. and Canadtan Automobtle Workers, Local 456 (1989), 5 L.A.C (4th) 253 (Palmer) at 255 By way of example, counsel for the emp~oyer referred to the award in Re Alberta Housmg Corporatwn and Alberta Umon of Provmctal Employees (1982), 4 L.A.C (3d) 228 (Taylor), where a collectIve agreement prOVISIon that travel tIme be paId for at straIght tIme rates was held to determlIle the rate of p~y for travel time even though the board there found = , ~ - 6 - I that the hours m questIon otherwise amounted to "authonzed overtIme worked" withIn the meaning of a more general provision which specified that authorized overtIme worked was to be pai~ for at one and a half times the regular rate Decision ~ Time spent by employees taking traimng that their employer reqUIred them to take was work time for whIch they were entitled to be paId. The issue here concerns the rate of pay for that work tIme. Without addressmg whether there could have been any appeal to a statutory standard m that regard, or suggesting that there should have been, we note that there was none here The , dispute we are to resolve is solely about what rate of pay the collective agreement required in the circumstances of this case If no specific provisIon of the agreement addresses the rate at which an employee is to be paId for time spent at the mandatory traIning m Issue here, then that time must simply be treated as work time and ArtIcle 13 03 wIll apply to the hours by whIch the total work tU:J1e in the relevant penod exceeds the / I applicable weekly average. We agree with the employer that the traIning here was so conducted and provided as to bnng it withIn the ordmary meaning of the phrase "in-house traIning" m ArtIcle 2301 We also agree that the second sentence of ArtlCle 23 01 goes beyond merely specifymg that traIning time will be paid tIme, and also fixes the rate of pay for trammg t~me to wh~ch a appl~es at the employee's regular rate. We agree as well that when an employee's work m a pay perIOd consists of hIs or her full w~ekly average hours spent at other duties plus some addItIOnal hours spent at traImqg to whIch the second sentence of ArtIcle 23 01 applIes, none of those hours wIll attract the premIum rate contemplated by Article 13 03 it would defeat part of the bargam struck m ArtIcle 23 01 If ArtIcle 13 03 were applIed so that that sort of traImng time m effect transformed any of the employee's other regularly scheduled hours in the same pay perIOd mto overtime hours for whIch a premIum rate must be paId. Mr LIersch's eVIdence was offered In support of other answers to the umon's contrary argument on thIs pomt. As we noted earlIer, our conclusIOns on this pomt make It unnecessary to assess those other answers. I >~ 1.! 7 - ? Although we accept much of the employer's position, we cannot accept It I in its entirety Our difficulty wIth domg so arises out of the italIcised words m the followlIig quotation from Article 23 01 23.01 The Company will endeavour to schedule in-house trmmng sesswns dunng regular worktng hours. In the event that thu; LS not feasible, and such training occurs outside regular hours, the employee will have the option of recelVmg hIS regular straIght time rate of pay for each hour of such trainmg or the banking of such hours In order to have the second sentence of Article 2301 prevail over Article 1303 WIth respect the rate of pay for an employee's hours of work "outsIde regular hours," the employer must show that that sentence applies to the CIrcumstances in question. The artIcle reqUIres that the employer endeavour to schedule in house traImng durmg regular working hours. By ItS own te~s, the second sentence applies only "[i]Ii the event that thIs IS not feasible." In a context such as this, "feasible" means "convement" only m an objective sense better captured by such words as "practicable", "possible" or "manageable." \ There IS no eVidence that It was not "feasible" m that sense to schedule this training so that each and every affected employees receIved It durIng hIS or her regularly scheduled hours of work. (While the eVidence does suggest that thIS would probably not have been feasible dunng July and August, there IS no evidence that it was necessary to conduct any part of the traimng dunng those months.) There IS no eVidence that the employer endeavoured to schedule the traimng m that way Indeed, the emplqyer's eVidence IS that It endeavoured to I prOVide each employee WIth the opportumty of taking the traImng eIther durmg regular work hours or outSIde regular hours, as he or ~he chose. WhIle there was certaInly nothIng Improper about the employer's offenng such a chOIce, its having done so dId not gIve it the right to umlaterally' alter the application of the collective agreement to the results of the chOIces employees made. It was not entitled to bargam directly with employees about how they would be paId. Its agreement with the union was that It would endeavour to schedule traImng during working hours. The union's concomItant agreement to a straIght time rate for what mIght otherwIse attract a premIum rate only applIed to training which could not feasibly be scheduled durlIig working hours. The employer did not secure the unIon's agreement that thIs would also apply when the employee chose to take the traIning outSIde of regular hours. The fact that ! ~ .1 . ., t - 8 - the umon had not preViously complained about employer's haVing dealt wIth voluntary training this way m the past dId not amount to a waiver or give nse to an estoppel concerning the applIcation of the collectIve' agreement to payment for time spent on mandatory traImng. - For those reasons, the grievance succeeds. Each of the employees who attended the employer's mandatory lifting training program during 1~92 outside of hIs or her regular hours of work was entitled to have the hours so spent added to his or her other hours worked during the relevant pay period, and to be paid at the premium rate specIfied in Article 1303 for the hours by which the total exceeded the applicable average. All such employees must now be paid any further amount to whIch they are thus entitled, with interest. We remain seised with and wIll determine any issue which the partIes are unable to resolve concermng the Implementation of this decision. ~ Dated this f 8 t hday of September, 1995 J~---~ /1. Thomson, Member 1/ '- ?nr G) / 7~ M. O'Toole, Member "- ~ )