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HomeMy WebLinkAbout1995-0120UNION97_03_06 \ ONTAfIIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2100. TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (418) 328-1388 180 RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (418) 326-1396 GSB # 120/95 OPSEU # 95U004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of the Environment & Energy) Employer BEFORE: N Dissanayake Vice-Chairperson J.C Laniel Member F Collict Member FOR THE R. Davis GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D Strang EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING October 30, 1995 November 2, 3, 10, 13, 15, 1995 May 30, 31, 1996 ( 2 DECISION This is a policy grievance wherein the union claims that the employer has contravened the collective agreement by paying employees in its after hours Emergency Response Program at the on-call rate under article 16 of the collective agreement It is the union's position that these employees are entitled to be paid at the higher stand-by rate provided by article 15 The relevant provisions of the collective agreement are ARTICLE 14 - CALL BACK 14 1 An employee who leaves his place of work and is subsequently called back to work prior to the starting time of his next scheduled shift shall be paid a minimum of four (4 ) hours' pay at one and one-half (1-1/2) times his basic hourly rate ARTICLE 15 - STAND-BY TIME 15 1 "StandBy Time" means a period of time that is not a regular working period during which an employee is required to keep himself (A) immediately available to receive a call to return to work, and (B) immediately available to return to the workplace 15 2 No employee shall be required to be on stand-by unless such stand-by was authorized in writing by the supervisor prior to the stand-by period, except in circumstances beyond the Employer'S control 15 3 Where stand-by is not previously authorized in writing, payment as per section 15 4 shall only be made where the supervisor has expressly advised the employee that stand-by duty is required 15 4 When an employee is required to stand by, he shall receive payment of the stand-by hours at one half (1/2) his basic hourly rate with a minimum credit of four (4 ) hours pay at his basic hourly rate 3 ARTICLE 16 ON-CALL DUTY 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 respond within a reasonable time to a request for (a) recall to the work place, or (b) the performance of other work as required 16 2 It is understood that a return to the workplace may not be necessary in all situations 16 3 It is understood that there shall be no pyramiding of premium payments and where work is performed as outlined in subsections 16 1( a) or 16 l(b) , call back pay or overtime pay shall be substituted, respectively, for the on-call premium 16 4 Should recall to the workplace be required the employee is expected to be able to return to the workplace within a reasonable time 16 5 No employee sha 11 be required to be on-call unless such on-call duty was authorized in writing by the supervisor prior to the on-call period, except in circumstances beyond the Employer's control 16 6 Where on-call is not previously authorized in writing, payment as per Section 16 7 shall only be made where the supervisor has expressly advised the employee that he is on-call 16 7 Where an employee is required to be on-call, he shall receive one dollar ($1 00) per hour for all hours that he is required to be on-call The employees are Environmental Offlcers, who partlcipate in the Ministry's after hours service known as the Emergency Response Program This after hours program was established oln 1986 malnly as a result of concerns that arose, when there was considerable delay In contacting an : 4 Environmental Officer following the discovery of a potentially hazardous fire at the Chipman Chemical plant in Stoney Creek, Ontario The matter became a high profile political issue, which resulted in the institution of an after hours emergency response program, whereby an Environmental Officer, known as the Emergency Response Person (hereinafter referred to as "the ERP") was designated for the full period outside the regular work hours, as well as during week-ends and statutory holidays Under this program, an ERP was so designated in each of the Ministry's 21 Districts Approximately 80 officers served as .ERP on a rotational basis covering the 21 Districts In the event of an environmental incident outside regular work hours, such as a chemical spill or fire, if deemed necessary, the ERP was available to be contacted The contact was made by the Spills Action Centre (hereinafter referred to as SAC), which operated on a 24 hour basis with a province-wide 1-800 telephone number to receive reports and complaints of environmental incidents from industries, local governments, various agencies and members of the public The manner in which the after hours program evolved since 1986 is not important to be detailed here It suffices to observe that for part of the after hours period, the designated ERP was paid at the on-call rate and for the other part at the stand-by rate This blended payment of on-callI stand-by payments spawned a number of grievances, which were determined by the Grievance Settlement Board For purposes of determining this grievance it is sufficient to review the factual background commencing from October 14, 1994, when the employer issued an interim policy on its Emergency Response Program The relevant portions of this policy ("the October 1994 policy" ) are as follows ~- l 5 INTERIM AFTER-HOURS ENVIRONMENTAL RESPONSE PROCEDURES October 14, 1994 1 Introduction: The primary purpose of this document is to specifically describe how the Ministry deals with spills and other urgent environmental matters outside of normal business hours It is important to recognize that Ministry plans and procedures for dealing with spills and emergencies focus on the environmental concerns and are subordinate to those plans and procedures that are required to deal with the protection of life and property It is not the Ministry's role to be the first responder at the scene of an occurrence Generally, the Ministry is the lead regulatory agency for spills which occur in the province of Ontario except where federal jurisdiction may apply Police, fire or health officials normally provide the lead for incidents involving threats to health, safety, life or property In these situation the Ministry may be required to perform a support agency role In addition to normal business hour capabilities, the Ministry is committed to providing an immediate service for receiving, accessing and coordinating responses to spills and other environmental occurrences that are reported during the off-hours For this purpose the Ministry's Spills Action Centre (SAC) operates a province-wide toll-free system which is staffed by trained environmental officers on a 24- hour rotating shift basis The Ministry is also committed to maintaining a network of additional resources, including hazardous substance expertise, air or water modelling/monitoring and laboratory testing capabilities All of these resources can be accessed by SAC when required to help deal with an environmental occurrence If the Ministry's presence is required at the scene of an after-hours occurrence, an initial field response can generally be provided within a reasonable time (but not immediately) by an on-call District Office Environmental Officer who is called out at SAC's discretion 2 General Principles A number of fundamental principles form the basls of the after-hours on-call duty Environmental Response I 6 Program (ERP) These principles provide for consistency of program delivery across the province and the flexibility to meet the geographical considerations of the various ERP areas 2 1 The Ministry's primary spill-related role is to assess the environmental impact of spills and as regulatory agency enforce the duties and provisions under any applicable legislation administered by the Ministry During an emergency involving a discharge or potential discharge to the environment, the Ministry will provide support and advice to those agencies that deal directly with the emergency 2 2 The Spills Action Centre's Environmental Officers are responsible for receiving and evaluating all occurrences reported during the off-hours and determining what type of response action is require This may include contacting a range of other agencies or potentially affected parties as required or initiating a field response by contacting the local ERP Environmental Officer (for the purposes of this document to be referred to as the "ERP" ) 2 3 The role of the ERP is to provide the Ministry's initial on-site field response within a reasonable time after being called out by SAC During normal on-call duty the ERP will not be expected to provide an immediate response When sent out to an occurrence the ERP is expected to verify and investigate the details of the occurrence and appropriateness of the actions taken 2 4 District Management staff are directly responsible for administering ERP procedures in their ERP area and for ensuring ERP staff are familiar with the information contained in this document Regional, District and SAC management staff are responsible and accountable for the consistent interpretation and application of the procedures outlined in this document with respect to Articles 13, 14, 15 and 16 of the Collective Agreement 7 4 3 SAC Procedures When Reauesting ERP ReSDonse. When a SAC Environmental Off icer determines that a Ministry field response is required to deal with an after-hours occurrence, this response is initiated by calling the appropriate ERP at their home telephone number or at an alternate contact number provided to SAC by the ERP When the ERP is successfully contacted by SAC, the SAC EO is required to advise the ERP of the relevant occurrence details and the need for the ERP to respond to the scene of an occurrence SAC staff are also required to ask the ERP provide The estimated time they will be in the ERP vehicle to begin their response to the scene; and An estimated time of arrival at the scene SAC requires this information in order to advise other parties (e g discharger or other agencies}when they can expect the ERP to arrive If the ERP is not able or prepared to respond within a reasonable time, the SAC EO will contact Regional, District or SAC management staff as outlined in section 6 1 4 4 SA~ Actions When Unable to Contact ERP. If the SAC is unable to contact the on- eall duty ERP within one half hour and the need for a Ministry field response persists, SAC staff will attempt to contact the on-call ERP in an adjacent ERP area The ERP contacted in thls scenario will then be requested to respond to the incident 8 When contacting an on-call ERP in an adjacent ERP area is NT reachable due to distances or if the adjacent ERP is responding to a separate incident, SAC will attempt to contact the ERP scheduled for on-call duty for the following week and so on This ERP, however, will NT be under the same obligation to respond as an on-call duty ERP Should SAC be unsuccessful in contacting an ER that has indicated they will respond to the incident within a reasonable time the SAC ill contact Regional, District or SAC management staff as outlined in Section 6 1 If the ERP cannot be contacted and SAC has contacted an alternative ERP and/or management staff the SAC will attempt to contact the ERP to determine why contact was not possible This will ensure any communication problems are rectified The priority for this follow-up by SAC will be secondary to other duties associated with co-ordinating the Ministry's spill response activities 4 5 SAC Actions When ERP Indicates Unable To Respond. As outlined in section 5 6 the ERP has an obligation to immediately inform District Office management staff during office hours, and SAC during the after- hours periods, if they are experiencing serious illness or injury which would prevent them from responding to a request from SAC If in an exceptional case, when the ERP is contacted by SAC and the ERP indicates they will be unable to respond due to serious illness or injury SAC staff will follow the procedures outlined in section 4 4 Should SAC be unsuccessful in contacting an ERP that has indicated they will respond to the incident within a reasonable time the SAC will contact Regional, District or SAC management staff as outlined in section 6 1 9 5 Roles and Responsibilities of the ERP Environmental Officer 5 1 ERP staff must provide the Spills Action Centre (SAC) with a telephone number at which they are available and can be reached during on-call duty Should the ERP wish to be contacted by SAC at a telephone number that is a pager or cellular phone, this request must be made in writing to the Head of the SAC and District Office Management staff If this request is made by the ERP, a pager and/or cellular phone will be provided by management Providing these devices for use on a voluntary basis does not alter management's expectations with respect to responding to a callout request from SAC within a reasonable time 5 2 Upon receiving a call from SAC to attend the scene of an occurrence the ERP must provide SAC wi th an estimated time by which the ERP will be in the ERP vehicle to begin their response to the scene The ERP should also provide an estimate with respect to when they anticipate arriving at the scene of the spill This will allow the SAC EO to provide an estimated time of arrival to those parties they are dealing with regarding the occurrence 5 3 Receipt of a request by the ERP from the SAC to attend the scene of a spill is not considered to be a response to the request "Response to a request" to attend the scene of an occurrence is ini tiated when the ERP leaves for the scene in the ERP vehicle In addition, the receipt of a request by the ERP to attend the scene of an occurrence is not considered t be a "call back" as specified in the Collective Agreement unless the ERP leaves to attend the scene of the occurrence 5 4 When called out by SAC the ERP is required to respond within a reasonable 10 time, as specified in the Collective Agreement, by receiving the relevant occurrence information from SAC and taking any actions necessary, including personal preparation, in order to be in the ERP vehicle and on their way to the scene of the occurrence within 2 (two) hours of being called out by SAC 5 5 If at any time during an on-call duty shift the ERP becomes aware of the SAC's failed attempt(s) to contact them, the ERP is required to call SAC (regardless of the amount of time that has passed) to find out if alternate call-out arrangements have been made or if their service is still required and to confirm they have not been injured 5 6 If the ERP is seriously ill or injured such that if they were contacted by SAC they would be unable to respond, the ERP should advise District Management staff during regular working hours and the SAC during the on-call hours Management reserves the right to request written proof of illness if ERP on-call duty coverage is repeatedly jeopardized by illness 5 7 When sent out to investigate a spill the ERP is expected to Determine the nature and extent of environmental damage caused by the spill; Evaluate the adequacy of the cleanup and restoration efforts and recommend appropriate procedures where applicable; Enforce the legislated responsibilities imposed on the discharger and others as applicable, In cooperation with SAC, determine the need for additional Ministry resources, Recommend spill prevention measures; and Document all findings, actions and recommendations \ 11 6 Role Of Management Staff During The On-Call Period: 6 1 Spills Action Centre staff may contact Regional, District or SAC management staff during the on-call periods if SAC cannot contact an ERP as outlined in section 4 4; if an ERP is unprepared or unable to respond within a reasonable time; or if the responding ERP and/or the SACEOs require advice from appropriate management staff 7 Use of Ministry Vehicles by ERP During ERP On-Call Duty ERP staff are permitted, but not required, to take an ERP response vehicle home during on-call duty periods They are permitted to use this vehicle to travel to and from their normal workplace and to respond to call-out requests from SAC Personal use of the vehicle is not permitted Only MOEE employees will be permitted in the ERP vehicle during transit The foregoing was superseded by a new interim pOlicy issued effective December 6, 1994 ("December 1994 policy") The provisions of this new policy were identical to those in the October 1994 pol1cy as set out above, except with regard to sections 4 3, 4 4 and 4 5 and sections 5, 6 and 7 These provisions in the new policy read 4 3 SAC Procedures When Requesting ERP Response. When SAC determines that a Ministry field response is required to deal with an after-hours occurrence, the SAC EO will page the ERP A home telephone number or alternate number provided to SAC by the ERP may be used as a backup means of contact When the ERP is successfully contacted by SAC, the SAC OE is required to advise the ERP of the need for the ERP to respond to the scene of an occurrence The SAC EO will ask \ 12 the ERP to provide the estimated time it will take the ERP to be in the ERP vehicle in order to begin their response to the scene SAC requires this information in order to be able to estimate the ERF's arrival time at the scene Any other information regarding the location or nature of the occurrence will only be provided at the ERP's request as this may be required to assist the ERP with making personal arrangements prior to returning to the workplace Once the ERP is ready to begin their response in the ERP vehicle, the SAC EO will provide the ERP with all relevant occurrence details 4 4 SAC Actions When Unable to Contract ERP If SAC is unable to contact the on-call duty ERP within one half hour and the need for a Ministry field response persists, SAC staff will exercise their discretion in determining whether or not to wait an additional half hour or to proceed with attempting to contact the on-call ERP in an adjacent ERP area following the procedures outlined in Section 4 3 above When contacting an on-call ERP in an adjacent ERP area is not feasible due to distances or if the adjacent ERP is responding to a separate incident, SAC will attempt to contact another Environmental Officer from the District Office in which the occurrence is taking place It is recognized, however, that other Environmental Officers who are not on "On-Call Duty" are not obliged to respond Should SAC be unsuccessful in contacting an adjacent ERP, or other Environmental Officer who is willing to respond to the incident within a reasonable time, SAC will contact Regional, District or SAC manageIT~nt staff as indicated in Section 6 \ 13 4 5 SAC Actions When ERP Indicates Unable TO Respond If the ERP is not able or willing to respond within a reasonable time, the SAC EO will f 011 ow the procedures for contacting an adjacent ERP or other Environmental Officer outlined in Section 4 4 Should SAC be unsuccessful in contacting an ad jacent ERP or other Environmental Officer who will respond to the incident within a reasonable time SAC will contact Regional, District or SAC management staff as indicated in Section 6 5 Roles and Responsibilities of the ERP Environmental Officer: 5 1 It is the ERP's responsibility to be accessible for a recall to the workplace during "On-Call Duty" During all on- call duty periods they are required to carry pagers and keep them turned on and, if necessary, provide SAC with an alternate telephone number at which they can be reached The sole purpose of the pager during on-call periods is to provide SAC with a reasonable method for contacting an ERP in order to make a request as per Article 16 l(a) of the Collective Agreement for a recall to the workplace within a reasonable time The requirement to carry pagers is in no way intended to elicit an immediate return to the workplace or to require the performance of any work prior to returning to the workplace 5 2 Upon being paged, the ERP is expected to call SAC within one half hour to confirm that it was SAC that paged them for a recall to the workplace as per Article 16 of the Collective Agreement If a recall to the workplace is requested by SAC, the ERP must provide SAC Wl th an estimate of the time it will take to be \ 14 in the ERP vehicle to begin their response to the scene This will allow SAC to estimate the ERP's arrival time at the scene 5 3 Receipt of a request by the ERP from the SAC to attend the scene of a spill is not considered to be a response to the request The actual response begins when the ERP leaves for the scene in the ERP vehicle In other words, the Article 14 call-back time period begins when the ERP begins the field response in the ERP vehicle The ERP is not required to perform any work until they are ready to respond int he ERP vehicle If the ERP has the ERP vehicle at home, the call-back time period begins when they leave their home to respond to the scene in the vehicle 5 4 When called out by SAC the ERP is required to respond within a reasonable time, as specified in the Collective Agreement, by taking any actions necessary, including personal preparation, in order to be in the ERP vehicle and on their way to the scene of the occurrence within 2 (two) hours of being recalled to the workplace by SAC 5 5 Once the ERP is ready to begin their response to the scene in the ERP vehicle, they are required to call SAC to obtain all relevant occurrence details and provide SAC with their estimated time of arrival at the scene 5 6 If at any time dur ing an on-call duty shift the ERP becomes aware of the SAC's failed attempt)s) to contact them, the ERP is required to call SAC (regardless of the amount of time that has passed) to find out if alternate call-out arrangements have been made or if their service is still required 5 7 If unavoidable circumstances exist, such as illness, injury or bereavement, such that if the ERP were contacted by SAC I \ 15 they would be unable to respond, the ERP is responsible for advising District Office management staff during regular working hours or SAC during the on-call hours 5 8 When sent out to lnvestigate a spill the ERP is expected to determine the nature and extend of environmental damage caused by the spill ; evaluate the adequacy of the cleanup and restoration efforts and recormnend appropriate procedures where applicable; enforce the legislated responsibilities imposed on the discharger and others as applicable; be readily accessible to SAC and keep SAC informed of developments in the field, in cooperation with SAC, determine the need for additional Ministry resources; recommend spill prevention measures; and document all findings, actions and recommendations 6 Role Of Mana~ement Staff Durin~ On-Call Periods Spills Action Centre staff may contact Regional, District or SAC management staff during the on-call periods if SAC cannot contact an ERP as outlined in section 4 4; if an ERP is unprepared or unable to respond within a reasonable time; or if the responding ERP and/or the SAC EOS require advice from appropriate management staff , In cases where the designated ERP is not able to perform "On-Call Duty" as outlined in Section 5 7 or if an ERP is unable to make alternate arrangements as outlined in Section 3 3, District Office management staff may assign another Environmental Officer to "On-Call Duty" as per Article 16 5 of the Collective Agreement I I 16 7 Use of Ministry Vehicles by ERP During ERP On-Call Duty The ERP vehicle should normally be left at the office unless taking the vehicle home can be combined with regular work time activities Personal use of the vehicle is not permitted Only MOEE employees are permitted int he ERP vehicle during transit The most significant change in the October 1994 policy was the method of payment Rather than the combination of Stand by and On-Call method which had been used previously, under the October 1994 policy the ERPs were paid for all hours on an On-Call basis If adequate numbers of environmental officers did not volunteer, employees were required to be on all mandatorily The December 1994 policy continued the On-Call method of payment and the mandatory On-Call requirement initiated by the October 1994 policy However, the December 1994 policy differed from the October 1994 policy in several ways The ERP was now required to carry a pager at all times Also, the ERP was no longer permitted to take home the Ministry vehicle ("ERP vehicle") It was the SAC officers who decided whether a field response by an ERP was required Once initial contact was made, the ERP was required to call back SAC within 1/2 hour in order to confirm the page When the ERP calls back SAC, the only instructions given was to report to the District Office Unless the ERP on his own volition inquired, he was not provided any information as to the incident or occurrence which caused his recall to the office The ERP then was expected to be at the District Office within a further 2 hours That meant that from the time of initial contact the ERP had 2-1/2 hours to be in the District Office ready to proceed to the scene of an incident Once the ERP was in the office he 17 received details of the occurrence and the location, and the ERP proceeded to the scene The difference in the amount of an ERP's remuneration varies significantly depending on whether it is calculated on the basis of On-Call or Stand-By An environmental officer's regular weekly pay is $ 900 00 On top of that, if there is an actual call-out, the collective agreement (Art 14) guarantees call-out pay for a minimum 4 hours at 1-1/2 times the regular rate This minimum call-out pay is approximately $ 150 00 For the after hours periods during which an officer is designated as ERP, he is entitled to be paid for being in a state of availability whether in fact he is called out or not If these hours are paid on an On-Call basis the officer is entitled to be remunerated at the rate of $ 1 00 an hour or $ 128 00 per week If however the same hours are remunerated on the basis of stand-by pay, the officer is entitled to be paid for each hour at half his regular hourly rate Under this calculation, stand-by pay amounts to $ 1,600 00 per week In other words under the On-Call regime instituted by the October 1994 policy an ERP receives $ 900 00 regular pay plus $ 128 00 On-Call pay for a total weekly income of $ 1,028 00 In this grievance the union claims that since December 6, 1994, the ERP is entitled to be paid his $ 900 00 regular pay plus, $ 1,600 00 in stand-by pay for total weekly earnings of $ 2,500 00 Mr Richard Raeburn-Gibson, Divisions Operations Coordinator, was intimately involved in the decision to change the method of payment for aftero-hours from the blend of On-Call/Stand-By, to totally On-Call He was also the primary author of the October 1994 and December 1994 policies ~ I I 18 He testified that in late 1993 the Ontario Government directed that the Ministry review all of its programs to see how cost savings could be achieved without lay-offs or dramatic reduction in program delivery The Emergency Response Program was one of the areas examined The employer essentially compared the total cost of maintaining the existing level of service with the number of call outs actually responded to by the designated ERP A cost analysis was carried out under different alternative methods It was determined that after hours coverage provided through shift work was the least costly Therefore a recommendation was made that an evening shift between 4 30 p m to 12 midnight for the ERP be commenced effective July 1994 However, due to a number of reasons, the change from the blend of Stand-By/On-Call method to the shift work method was never implemented One reason was the displeasure expressed by the employees themselves Instead, in October 1994 the employer implemented the interim policy which made all after-hours coverage payable on the basis of On-Call pay Mr Raeburn-Gibson testified that while the total On-Call method was more costly than the shift work method, the employer determined that under such a system an acceptable level of service could be maintained The cost was a major factor in the decision Through a cost analysis on the basis of the 133 ERP calls actually made in the year 1995, he illustrated to the Board the comparative costs under the different methods This comes out as follows METHOD ANNUAL COST FOR Cost per response 133 responses Blend of Stand-By/On-Call 780,000 00 5,900 00 Shift Work/On-Call 133,600 00 1, 000 00 ~ I \ 19 Totally On-Call 143,000 00 1, 100 00 Totally Stand-By 1,800,000 00 13,500 00 Mr Raeburn-Gibson testified that apart from the issue of cost, the employer considered what was an acceptable level of service The ERP who was called out to a scene of an environmental incident was not the first respondent at the scene Municipalities and other agencies such as the police and Fire Departments were the first respondents with primary responsibility for minimizing personal injury and damage to property These duties took precedence over the role of the ERP which was to enforce compliance with legislation such as the Environmental Protection Act and the Water Resources Act, which includes the supervision of proper reporting, clean-up, the taking of air or water samples etc Mr Raeburn- Gibson testified that much of the follow up work could be done on the following day during regular hours by the Abatement Officer He testified that considering the nature of the service provided by the responding ERP and also considering the annual saving of approximately $ 750,000 00, the employer came to the conclusion that a response within a reasonable time, as opposed to an immediate response was an acceptable compromise Given the need to reduce overall budget costs, the employer decided that a reduction in the level of service from "immediate response" to "response within a reasonable period" was acceptable Mr Raeburn-Gibson testified that in coming to this conclusion, the employer took solace in certain other factors By then SAC had been in operation for over 8 years It had thus developed significant experience and possessed comprehensive data on hazardous materials and advanced i 20 technology The sophistication and experience of SAC and its staff was a source of confidence to the employer in deciding to go to a totally On-Call after hours service According to Mr Raeburn-Gibson, the employer also took comfort in the fact that over the preceding 10 years, potential spillers and other responding agencies had become quite sophisticated Industries and other potential spillers had a much better awareness of their legislative obligations and responsibilities Major industries dealing with hazardous materials had developed their own expertise and an ability to respond quickly to an environmental incident They had become more pro-active in the prevention of incidents Many contracting companies with the expertise and equipment necessary to quickly and competently respond to environmental disasters were now in operation Spillers could call upon these contractors in an emergency Many municipalities, particularly the larger ones, had established their own response units Other agencies such as the Ontario provincial Police and Fire Departments were more experienced and better equipped to deal with environmental incidents Mr Raeburn-Gibson testified that considering all of the above, the employer decided that a reduced level of response on the part of the Ministry ERP was acceptable and the October 1994 policy was implemented making all after hours time On-Call time Mr Raeburn-Gibson testified that the December 1994 policy was implemented in order to address some short-comings in the October 1994 policy Under the October 1994 policy, ERPs were providing several alternate telephone numbers There was no certainty of contact SAC had -_..~ , ( 21 to track down the ERP at several alternate telephone numbers provided Often the lines were busy By requiring the ERP to carry a pager while on after-hours duty, the December 1994 policy ensured certainty of contact, while permitting the ERP a greater ability to go about his normal activities Mr Raeburn-Gibson also explained why the December 1994 policy discontinued the practice of the ERP taking the Ministry vehicle home He testified that several employees grieved claiming travel pay for the time they spent driving the vehicle to and from home Others claimed that the time so spent should be considered "employer time" Some even claimed remuneration for the time the vehicle remained on their driveways, taking the position that they had care and control of the vehicle throughout the night The employer considered that in view of these potential claims and the additional fuel costs/ wear and tear and insurance costs, the fact that actual call-outs were relatively few and that since the Ministry only expected an On-Call type response which gave the ERP 2 hours to arrive at the office, there was no longer a justification to allow the ERP to take the vehicle home Mr Raeburn-Gibson explained why the December 1994 policy set out specific time periods - the 1/2 hour to return the page and 2 hours to be in the office - as the employer's expectation of a "response wi thin a reasonable time" Prior to October 1994, whether an ERP was on Stand-By or On-Call on any given occas ion had to be decided on a case by case interpretation of the collective agreement and the case law That was not a satisfactory state of affairs for management Besides, the union also had demanded that the eIl1ployer clarify for the employees what its ( 22 expectation was for a "reasonable response" under an On-Call system Mr Raeburn-Gibson testified that in coming up with the 1/2 hour for returning the page, several factors were taken into account Historical data revealed that on the Ministry's after hours program, the great majority of calls were returned within 1/2 hour by the ERPs The employer also reviewed the practices of Ontario Hydro and some American States Based on all of the available information, the employer concluded that 1/2 hour would reasonably permit the ERP, who may be engaged in some personal business, to return the page Mr Raeburn-Gibson testified that a similar process was followed in arriving at 2 hours as the reasonable period an ERP should have to arrive in the office The employer considered the common situations that could be faced by an ERP who is called back to the office If the ERP was asleep he would have to shower and eat something before heading out If he was engaged in some social or personal activity, he may have to finish that Child-care and transportation arrangements may have to be made The employer reviewed the On-Call practices in other jurisdictions, as well as the actual response times to the scene by its own ERPs Considering that the employer was willing to live with a lower level of response, it was determined that 2 hours would be an adequate period for the ERP to report to his office in his own vehicle Mr Raeburn-Gibson testified that the 1/2 hour and 2 hour time periods specified in the policy were not intended to be hard and fast rules but as "guidelines with some flexibility" While there had been many instances of ERPs exceeding the time limlts, he was not aware of any case of an ERP being disciplined He said that in most cases the supervisors I \ 27 The old definition of "Stand-By time" required that an employee "keeps himself available for immediate recall to work" The new article 15 1 requires that an employee "keep himself immediately available to return to the workplace" In our view, if there is any material change with regard to this requirement, it is that under the old provision the irrunediate recall is to "work" , which is a broader term than the term "Workplace" used in the new provision The unavoidable interpretation, however, is that merely because an employee keeps himself irmnediately available to receive a call to return to work during a period of time which is not a regular working period, that does not constitute Stand-By time under the current definition To have that result, the employee ~ also be keeping himself "irrunediately available to return to the workplace " This case turns on whether the union has established that that component of the definition exists under the December 1994 policy The union submits that the terms of the December 1994 policy by themselves require Stand-By time The distinction is between an irmnediate return to work vs a return wi thin a reasonable time The former is typically a Stand-By situation, while the latter is typically On-Call duty In our view, except for any significance in the distinction between the words "work" in the old provision, and "workplace" in the current provision, there is no significant difference in the requirement of the old definition and component (C) in the current definition The term "work" is broader than the term "workplace" Therefore, the previous definition is capable of encompassing more situatlons, than the more restrictive definition in the current collective agreement Therefore, to the extent of that change, the new language in fact restricts the application of the Stand-By time provisions --- --- \ 28 Some of the observations made by the Board in regard to the distinction between Stand-By and On-Call under the old definition are still valid, because both definitions envisage an immediate return to work or to the work place Having regard to that case law, if the ERP was required to attend at the workplace within 2 hours, that cannot be said to be a requirement for "immediate" return The union did not argue that a return in 2 hours is outside the scope of a return within a reasonable time, but a requirement for an immediate return Such an argument would be contrary to the existing jurisprudence For example in Re Novak and Humphrey, 141/81 (Barton) at p 5, the Board observed "We feel that the concept of Stand-By pay is reserved for those situations in which an employee is required to virtually sit at home by the telephone "ready to go" An example given during the hearing was a situation of a fire crew on alert during a fire emergency " The testimony of all union witnesses leaves no doubt that the December 1994 policy does not require an ERP to be "ready to go" If he was shopping or visiting friends, he does not have to immediately stop everything and rush to work He can spend some time to finish what he was doing He would have time to shower and eat something He would have some time to make any arrangements such as child-care In Re Graham, 160/90 (Kennedy) it was held that a requirement that an employee set out within one hour would not constitute "an immediate response" so as to attract Stand-By time It was perhaps in recognition of these decisions that the union argued that ERPs did not in fact have 2 hours to return to the work place, even though the policy on its face provides for 2 hours The union points -~- (, 29 out that as soon as an ERP receives directions to return to the office (upon his returning the page), he has to make preparations to set out He has to shower, eat, dress up and make necessary personal arrangements He then has to drive his own vehicle to the office According to the union, when the ERP does these things he is in fact "working" , and the home, the vehicle, or wherp-ver he performs these functions constitute the "Work place" for the duration In support of this argument the union pointed out that travel and field visits were an inherent part of an Environmental Officer's job Counsel contended that the preparation activity and the driving is undertaken by the ERP only because of his Obligation to comply with the employer's direction to return to the office Tha t , according to the union, makes those actions "work", and the place where the actions are performed (i e home/vehicle etc ) the "workplace" In our view, that is an interpretation of article 15 1, which the language could not reasonably bear, particularly when read together with article 16 It must be noted that "On-Call duty" also imposes certain obligations on an employee It does not permit an employee to delay his response as he wishes with impunity In Re Mongrain, 939/86 (Slone) the Board observed Being on call does not, in this Board's opinion, justify a capricious delay It merely permits greater latitude and flexibility in the event the ERP is unavailable for an immediate response Even a dedicated professional may find himself unavailable for an immediate response and may require a little extra time to spring to action The On-Call status permits him to do this The situation of the ERP in the present case is that if he is not tied up with some personal activity he would spring to action by getting , \ 30 ready and settling out However, if he is in the middle of something or has some personal matters to attend to, he has that "little extra time" before he has to get ready and depart This is wholly conslstent with the On-Call status Seen in this light, the lnterpretation of the phrase "workplace" to include the employee's home, his vehicle etc in the manner suggested, is to unreasonably torture the language There is no rational basis for doing that In Re Jamieson 162/77 (Prichard) at p 8, the Board said The difficulty with the union's position, however, is the provisions of the collective agreement By providing both article 15 and article 16, the parties have indicated their intention to create two different statuses To give the agreement integrity in its interpretation we must recognize that by creating the category of on-call duty, the parties must have intended to restrict the application of stand-by time in article 15 to situations where there is little flexibility in the requirement that the employees be immediately available The on-call duty provisions must then contemplate a relatively wide array of arrangements for ensuring that employees will be available for recall In our view, the December 1994 policy does provide that degree of flexibility to the ERP as contemplated by the On-Call duty status The union led evidence about the inconveniences imposed on an ERP's personal life, when on ERP duty Numerous examples were cited, including the inability to attend a ball-game or visit relatives in Toronto, inability to go to a cottage located on an island, the need to make arrangements for child-care, and difficulties posed if there was only one vehicle in the family The fact that these inconveniences may exist is not in doubt However, that by itself is not determinative of anything The ( 31 issue is whether or not these inconveniences are inconsistent with the On- Call duty status contemplated by article 16 In our view the answer must be in the negative Article 16 clearly envisages a response within a reasonable time It must necessarily mean that an ERP on On-Call duty cannot expect to carry on life as if he was not on any type of duty at all After all, he is paid for being on On-Call duty If he is actually called out he is paid call-out pay under article 14 in addition An employee on on-call duty must therefore take steps to ensure that he maintains reasonable availability to re'turn to work Just as much as an ERP on On- Call duty cannot capriciously delay returning to work (Re Monqrain, .s.J.!Q.@) , he cannot engage in activity which would prevent reasonable availability to return to work Being in a place distant enough to prevent a return to work within a reasonable time would not be consistent with the ERP's obligations arising out of his On-Call duty status That is the inconvenience he must endure in return for the additional pay be receives as on call pay Whether the level of On-Call pay is reasonable relative to the inconveniences endured is not for this Board to decide (See, Re Cloutier infra) As noted, in order to earn the significantly higher rate of Stand-By pay, he must endure a corresponding higher degree of inconvenience of being in a state of "ready to respond immediately" These ERPs are not required to do so Another consideration is the degree of latitude the employer provides an ERP with regard to the time limi ts in the policy Although a 2 hour time limit has been set out, Mr Raeburn-Gibson testified that it was only a guideline The evidence discloses many instances where ERPs exceeded those time limits In most cases these infractions were ignored In cases where supervisors followed up, no discipline was taken ( 32 Under cross-examination, Mr Raeburn-Gibson conceded that an ERP who exceeds the 2 hour time period w~thout a reasonable excuse may be subject to discipline However, that is fully cons~stent with the status of On- Call duty Surely, an ERP on On-Call duty, who exceeds the standard of reasonable response without justification may in certain circumstances be subject to discipline For example, if he fails to return to work within a reasonable time because he was intoxicated or had gone to a distant place on a fishing trip The evidence indicates that despite the 2 hour time limit in the policy, the employer considered the particular employee'S individual circumstances in determining whether the standard of a reasonable response was met in each case One would have to think that if the employer disciplines an ERP, eventhough the ERP had a reasonable excuse for the delay, it will have difficulty establishing just cause The December 1994 policy in fact recognizes and makes provision, in the event the designated ERP is unable to respond due to "unavoidable circumstances such as illness, injury or bereavement" The "inclusive" description is broad enough to include any reasonable excuse which is beyond the ERP's control This is in keeping with the flexible manner in which the policy has been applied generally - as a guideline as opposed to a set of hard and fast rules The pOlicy provides that if the designated ERP is not available, SAC is to attempt to contact an adj acent ERP or another Environmental Officer If that fails, management is to be contacted Management may then assign another Environmental Officer to "On-Call duty" The evidence further indicates that if the designated ERP wishes to attend a family, social or recreational event without the responsibilities of being on On-Call duty, he is permitted to trade his shift with another officer ( ( 33 The union argued in the alternative, that even if the policy as written envisaged an "On-Call" response, in practice this did not happen It was argued that as highly dedicated and motivated professionals, the ERPs always provided an inunediate response when contacted about an environmental incident One employee testified that he was "not going to sit around when there is a spill out there" The fact that these employees have a very high sense of motivation and responsibility is not at all in doubt The employer witnesses did not dispute that at any time However, that does not assist the un10n in this particular grievance Mr Raeburn-Gibson conceded under cross-examination that it was desirable to have the ERP at the scene as fast as possible He testified that in fact, the best scenario was to have the ERP at the scene with a video camera as the event occurred The sooner samples are collected the better it is Faster the information gathering is done at the scene by the ERP, the better the chances of obtaining convictions However, he explained that considering the financial crunch faced by the employer, it had concluded that an optimum level of service was not viable A response within a reasonable period was a compromise it had to accept The issue for the Board is the employer's actual expectations, not whether that expectation was adequate to provide an efficient service In Re Cloutier, 128177 (Swan) the Board held "The only real matter of principle to be decided is whether, on all the evidence, the instructions given to the employees constituted a direction to be available for inunediate recall to work' or a direction to be reasonably available for recall to work' It is not our function to discuss the relative social consequences which flow from these two contractual formulae, nor to question whether the pay allotted is appropriate or not The parties have chosen to include both the contractual language and the rates in their agreement, and they are ( 34 therefore equally binding on the parties, on the employees and on us In Re Monqrain {supra} at p 13 the Board stated While it might be socially desirable for an ERP to be at all times available for immediate recall to work, as noted in Cloutier it is not the function of this Board to engage in such a discourse It is for the Ministry and the politicians to decide what services they are willing to provide to the public, and if that is perceived to be inadequate it is they who must assume the responsibility In Re Graham (suora) at p 13, the Board addressed an argument similar to the one made here In substance, they all testified that, when called, they would in all circumstances set out as soon as they could, and I accept that that is the case However, the issue on this arbitration is whether or not the management requirement is that the particular employee set out immediately, as is described in Article 15, or that he be reasonably available to go to work as set out in Article 16 Whatever the degree of sense of responsibility that each individual Inspector may feel, the determination of what is the appropriate and required response time is a function of management If in management's opinion as immediate response is not called for, then it is quite open to management to implement the arrangements on the basis of a lesser degree of urgency and required response time At p 14, the Board stated "It is the nature of the response required by the Employer that governs, and it is for the Employer to determine the level of response that is to be provided " For all the foregoing reasons, the Board is satisfied that the ERP program as described in the December 1994 policy, and as actually implemented, provides for an On-Call level of response for which the appropriate level of compensation is as provided in article 16 While the - -~ ( 35 carrying of the pager brings the employees within the requirement to be immediately available to receive a call to return to work stipulated in article 15 1 (a) , the evidence does not establish that the requirement in article 15 l(b) that the employee be required to keep himself "immediately available to return to the workplace" has been met The policy clearly gives an ERP a period of 2 hours to report to the office No ERP could have thought otherwise Even this 2 hour time limit has not been enforced stringently A degree of latitude has been given to ERPs where the time limit has been exceeded for valid reasons The policy recognizes that the designated officer may not be able to respond within a reasonable time and makes provision for such a contingency While the evidence is clear, (and the employer did not attempt to conceal this) that the employer deliberately set out to avoid liability under the collective agreement to pay Stand-By pay, there is nothing sinister about that It is the management's legitimate function to reduce its expenses by lowering the level of service it offers during after-hours As long as the employer's expectations from the employees are also lowered, the employer is entitled to do so As prior awards of this Board have noted, the social and pOlitical implications resulting from the lowering of the level of service offered is not a legitimate consideration for this Board This is no different from the right of an employer to avoid costly over-time rates under the collective agreement by not requiring employees to perform over- time work If the elimination of over-time results in the standard of service going do\~ it is the employer who must deal with the consequences In the result, the Board concludes that the collective agreement has not been contravened This grievance is hereby dismissed ( 36 Dated this 6tway of March, 1997 at Hamilton, ontario ~~Y.~-71 ~ ~ L~-~-..- N lssanayake- Ch . on ") ~...i ~ ~~e:d F Co -d Member