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Home My WebLink About1980-0595.Davidson et al.82-12-22IN THE NATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Mr. Claude Davidson, et al) Grievers - And - The Crown in Right of Ontario (Ministry of Natural Resources) Employer J.W. Samuels Vice Chairman I. Thomson Member H. Roberts Member For the Grievor: M. Pratt Grievance Officer Ontario Public Service'Employees Un~ion For the Employer: R. Itenson Senior Staff Relations Officer Civil Service Commission Hearing: December 1, 1982 ? - 2 - Introduction : Sixteen grievors’filed this grievance in October 1980. ,It is to be treated as sixteen individual grievances, and reads: We are working in unsafe work conditions where safety footwear is required. Although a contract is signed stating we will supply our own footwear, we are grieving that it is the responsibility of the Ministry of Natural Resources under Bill-70 which states: “An employer shall ensure that the equipment, materials and protective devices, as prescribed, are provided” (Part III, Section lb-la), or any other section 0f.th.e act to which this grie- vance may apply. Before the matter came on for hearing, one grievor (Mr. M. Kerr withdrew his griev’ance: All the grievors are unclassified. That is, they are term or casual employe’es and not civil servants. Article 3 of the Collective Agreement is the only part of the contract which covers them. However, in Article 3.14, a number of the other provisions in the Agreement are incorporated into Article 3. The background to this matter is set out in an agreed statement of facts: 1. The grievors are covered by Article 3 of the Collective Agreement. 2. For their work, these employees are paid the rate of the equivalent civil’service classi- fication. 3. Their work involves exposure to the hazard of foot injury. 4. The Ministry requires these employees to wear safety boots. *, -3- 5. The Ministry requires as a condition of employ- ment that these employees supply their own safety boots. The cost of the boots is borne by the individual employee. 6. Depending on the amount of exposure to a hazardous environment, these employees may wear out one or more pair of safety boots during the fixed term of their employment. Our hearing took place on December 1, 1982. Preliminary Objection At the outset of our hearing, the Ministry raised a preliminary objection, and asked that we give written reasons for our decision on the objection before proceeding to hear the evidence and argument on the merits. As will be explained in a moment, we declined to give our written reasons on the objection before pro- ceeding to hear evidence and argument on the merits, but rather continued to complete the case before adjourning. Now we will deal with the preliminary objection. (1) On the objection itself ’ The Ministry argues that the grievances disclose no breach of the Collective Agreement, because there is no provision in Article 3 which provides for safety footwear. Article 3.10 reads: The Employer shall continue to make reasonable provisions for the safety and he.alth of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of’ all employees. However, it is suggested that this does not provide for safety footwear either. -4- In the Cdllective Agreement, there is provision for safety footwear in Article 18.3, but Article 18 is not one of the provisions incorporated into Article 3. Article 18.3 read.s: The purchase of safety shoes or boots for on-the- job protection of the purchaser shall be subsidized as per the applicable practice in each ministry. Nor is the matter of safety footwear one of the matters which can come before this Board under the Crown Employees Collective ,. m, which provides: ” B 18(2) In addition to any other rights bf grievance under a collective agreement, an employee claiming, ly classi- (a) ;;.a; hisposition has been improper ; (b) that he has been appraised contrary governing principles and standards; to the or (c) that he has been disciplined or dismissed or suspended from his employment without. just cause, may process such matter in accordance with the grievance procedure provided in the col&ective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination. applicable under section 19. 19(l) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, admini- stration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. And this Board must not alter, change, amend or enlarge any provision af the Collective Agreement (Article 27.12). -5- In sum , ,the grievances allege a breach-of the Occuoational wandtv Act, R.S.O. 1980, ch. 321, and there is no juris- diction in this Board to hear and determine such allegations. The Union may not claim a benefit which is not in the Collective Agree- ment, and this legislation cannot enlarge the rights under the Collective Agreement. The Union’s response to this objection is that the grievances allege a breach of Article 3.10 of the Collective Agree- ment, which calls for “reasonable provisions” for the safety and health of the workers. And <hat, in order to understand what is a reasonable provision for safety and health, it is necessary to have reference .to the Occupational Health and Safety Act. The jurisprudence on this point is summarized very well in the recent decision by Mr. Adams, Re Denison Mines Ltd. and United SteeJ=workers (19821, 5 L.A.C. (3d) 19, at 28-32. At the outset of this summary, the arbitrator states the principles as follows: A board of arbitration draws its jurisdiction from the collective agreement. It is therefore limited to dealing with disputes arising under such contracts, i.e., disputes involving the interpretation, appli- cation or administration of the agreement: see Re Hvdro Electric Power Com’n of Ontario and C.U.P.r, Local 1000 (1975), 8 L.A.C. (2d),,l80 (Adams), and Be C.N. Telecommunications and C.N. Telecommunications !&don - ‘d lew Worke’rs. Local 41 (1976), 11 L.A.C. (2d) 152 (Rayner). On the other hand, an arbitrator is entitled to construe and apply a statute “involved in the issues that have been brought before him”: see McLeod et al. v. E an et (19741, 46 D.L.R. (3d) 150 at p. 152, [197~$i-R%. 517 5 L.A.C. (2d) 336n sub nom. Re U.S.W., Local 28oi, and Galt Metal Industries Ltd., 74 C.L.L.C. para. 14,220, 2 N.R. 443. F - 6 - A statute may become relevant in a number of ways. A collective agreement may expressly or impliedly incorporate~the provisions of a statute. A statute might be utilized as an aid in the interpretation of a collective agreement assisting in the meaning to be given to the terms of the contract. A statute may simply render unlawful a provision of a collective agreement and a board of arbitration or arbitrator is obligated to acknowledge that impact and refuse to enforce the offending provision. A more difficult situation is where a statute speaks to the very issues dealt with by a collective agreement but provides superior benefits to those contained in the collective agreement. There is some debate whether grievance arbitration can be employed to obtain the more bene- ficial statutorventitlements: see the discussion in Re C.N.R. and.&nadian Telecommunications Union (1978), 17 L.A.C. (2d) 142 (Adams). But none of these situations exist in the current case. There is no provision of the collective agreement before me that offends either the Operating Engineers Act or the Occupational Health and Safety Act, 1978. Rather, it is an action by management that is alleged to contravene both of these statutes although it could be argued that the impugned management action arises from powers contained in art. 5 setting out management’s rights. To date, arbitrators have been extremely reluctant to extend their reach to external laws unless a grievance based on the provisions of the collective agreement necessarily involves external law: see Re Windsor Western Hosbital Centre Inc. and Ontario Nurses Assoc. (1979) 24 L.A.C. (2d) 34 (Iannil ;iopu; 39; Re Kitchener BeveraqLs Ltd. and United Brewery. 1 Cereal. Soft Drink & Distillerv Workers, Local 173. (19761, 13 L.A.C. (2d) 283 (Brandt); Re Air Canada and Canadian (1977), 14 L.A.C. (2d) 309 Airline Disbatchers’ Assoc. (Fraser). In our view, this is the correct view of the law. Applying this jurisprudence to our case, while the grie- vances lack the precision one would hope for, it is fairly clear that they do allege a breach of Article 3.10. The grievors are concerned for their health and safety, and Article 3.10 is the only article which deals with this matter for unclassified employees. The issue thus becomes whether or not Article 3.10 imposes an obligltion on the Ministry to supply safety foot,dear to the grievers. - 7 - Framed in this way; this case involves the intecpretation of the Collective Agreement, which is within our jurisdiction. In inter- preting the Collective Agreement, reference may be had to the legis- lation as an aid to interpretation. For this reason, the preliminary objection is denied. (2) On the reouest for an adjournment The Ministry requested.anadjournment until we issued written reasons Concerning the preliminary objection, because it was suggested that the employer was not ready to proceed to argue the Occupational Health and Safety Act. The Union objected to this request for an adjournment, because it learned of the preliminary objection only five days before the hearing (when the grievances had been filed two .years ago), and the grievors had come from a long way to the hearing. We ruled that there was no need for an adjournment. The Ministry knew that Article 3.10 was involved in the grievances, and that reference would be made to the Act. Indeed, the Stage 1 and Stage 2 replies to the grievances referred to this legislation (Exhibits 3 and 4). There was no surprise involved here, and there- fore no prejudice to the Ministry in continuing. In general, it is very important that this Board do its work as efficiently and effectively as possible. Requests for an adjournment, unless agreed to by both parties, must be considered very carefully, and ought to be granted only where there will be -a- clear prejudice to the party requesting the adjournment if the case continues. Merits The Union argues that “reasonable provisions” for the health and safety of the workers in Article 3.10 must mean provision which is in accordance with the Occupa.tional Health and Safety Act. Section 2 of the Act makes clear that the legislation is binding on the Crown, and the Ministry is violating the Act in three ways: --Section 14(l)(a) provides that “An employer shall ensure that, (a) the equip.ment, materials and protective devices as prescribed are provided” “AS prescribed” means according to the regulations (section 1 (22))., And the regulations do call for safety footwear where necessary (Regulation 86 for Industrial Establishments, and Regulation 31 for Construction Trojects). The term “provided” in section 14(l)(a) means “suppliedV*, and thus, in our case, the Ministry must supply safety footwear, which it is not doing for the g --Section 24(1 “No employer or shall, cc ievors. (c) provides that person acting onbehalf of an employer ) impose any penalty upon a worker;...because the worker has acted in compliance with this Act or the regulations . . . . ..‘I This section distinguishes between a “penalty” and “discipline” or “dismissal” (covered in sections 24(l)(a) and (b)). Here, the Ministry is imoosinq a “penalty” - 9 - by making’ the employees pay for their dwn safety foot- wear. In order to comply with the Act, the grievors must suffer a financial hardship. --Part V of the Act deals with the right of an employee to refuse to work where his health or safety is in danger. The purpose and intent of this Part is to ensure that there is no conflict between an employee’s economic interest and his health-and safety. The Ministry’s insistence that the grievors buy their own safety foot- wear puts them into this situation of conflict. The employees must breach their economic interest in order to provide for their own health and safety. The Ministry’s response is that section 14(l)(a) of the Act does not impose an obligation on it to supply the safety foot- wear, but merely to ensure that safety footwear is provided. Section l~(l)(d)speaks of the obligation to ensure that f’equipment, materials and protective devices provided by him” are used as prescribed, which makes it clear that some of the required safety material may be provided by the employer, and some by the employee. Article 3.10 of the Collective Agreement merely obligates the Ministry to make “reasonable provisions” for the health and safety .: of its workers, and such provision is found in the Ministry's policy on “Safety Footwear” (Exhibit 51, which reads: The Ministry shall pay for safety footwear as agreed under the working conditions agreement. Employees shall obtain properly fitted C.S.A.- approved footwear in accordance with appropriate Trovincial Acts and Regulations. Safety footwear - _ sold in any “Van” outlets must be C.S.A.-approved. - 10 - Regular/,probationary staff, both in an-d excluded from the bargaining unit, shall be reimbursed for safety footwear. It is a condition of employment that unclas- sified staff and iunior rangers reoorf for work with aoproved safety boots or shoes, where required. Executive coordinators, regional directors, branch directors, district managers and General Manager, St. Lawrence Parks Commission, shall determine which employees require safety footwear. Visitors or staff not normally provided with,safety footwear shall borrow (from stock) slipon toe caps, when necessary, for certain locations. Staff receiving allowances for personal items required for their work are exluded. (Emphasis added) In our view, part of each position is correct. We begin with the central point that our jurisdiction is merely to interpret the Collective Agreement. Article 3.10 imposes an obligation on the Ministry to make “reasonable provisions” f,or the safety and health of its employees. The Union is correct when it argues that the Ministry would not be making “reasonable provisions” if it was in violation of the Occupational Health and Safety Act in this resuect. We are notsuggesting that all of the obligations under of reasonableness, but in the Act are necessarily the standard this particular area, it would be fa out the standard. ir to regard the Act as sett ing What ddes the Act provide regarding safety footwear? In our- view, section 14(l)(a) and the regulations concerning safety footwear impose an obligation on the Ministry to ensure that such footwear is bein’g worn where necessary. There is DO obligation to supply the footwear. The Ministry’s policy on the matter (Exhibit 5) is a reasonabie-one and clearly fulfils the obligation imposed on the tiinistry by the Act. - 11 - This is.‘not a matter of a “penalty” imposed on the grievors, nor is it a breach of the employees’ right of refusal to work. The purpose and intent of the legislation is clearly to . place resp health and il nsibility both on the employer and the employees for - safety in the workplace. Section 17 provides: 1) A worker shall, (a) work in compliance with the provisions of this Act and the regulations; (b) use or wear the ‘equipment , protective devices or clothing that his employer requires to be used or worn;” Here, the Act (in section 17(l)(b)) and.the Ministry’s policy on “Safety Footwearl* impose on the grievors the obligation to provide The grievors are not being “penalized” their own safety footwear. for complying with the Act, nor have they lost their right to refuse to work in dangerous condit ions. The Union argued that it would not make sense for the employees to have to supply their own footwear, because then they might have to supply their own fire extinguishers, and other equip- ment, prescribed by the Act. The answer to this is that the question of who supplies the equipment is a matter of bargaining between s the Union and the Ministry. The’ Ministry must ensure that the prescribed equipment, materials and protect~ive devices are provided (section 14(l)(a)). The employees shall use or wear these articles (section 17(l)(b)). The question of who is to pay for the equipment, materials and protective.devices is not covered in the Act.. If the employer provides the items, then he must ensure that they are maintained in good condition (section 14(l)(b)), and are used’ as . - 12 - prescribed (sectiori’14(1)(d)). 3ut it is not thd employers obligation to supply all the prescribed equipment, materials and - protective devices. Indeed, the parties have recognized this in their provision concerning safety footwear for employees who are civil servants (Article 18.3 in the Collective Agreement), where- under the purchase of safety footwear is “subsidized”. In sum, we find that the ‘Ministry has not violated its obligations under the Collective Agreement, and the grievances are denied. Done at London, Ontario, this zuday of &&u, , 1982. d,.Vice-Chairman I. Thomson, Member Ii?* H. Roberts, Member 8:4100 T _ ‘2 1. 2. 3. 4. 5. - 13 - LIST OF EXHIaITS Grievance Form Letter re preliminary objection, November Stage 1 Reply Stage 2 Reply Policy Directive on “Safety Footwear” 18, 1082