Loading...
HomeMy WebLinkAbout1982-0140.Selvey.82-08-25ON,AFvO CROWN EMPLOIECS ~ GRllh’ANCE ;;;~E~~ENT IN THE MATTER OF AN ARBITRATION Under THE CRCWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: / For the Griever: ,For the Employer: HearIns OPSEU (Mr. J. Michael Selvey) and Grievor The Crown in Right of Ontario (Ministry of Community and Social Services) Employer P. Draper - Vice-Chairman J. iMcManus - Member W. Evans - Member LG. Scott, Counsel Cameron, Brewin & Scott Barristers & Solicitors A. Greenbaum, Counsel klinistry of Community and Social Services June 25, 1952 ._.- ‘i -2- The Grievor, I. Michael Selvey, o orieves that he was denied .’ payment for time spent in attending a meeting of the Employer’s Joint Health and Safety Committee (“the Committee”) on a day on which he was not scheduled to work and requests “premium payment as prescribed” under subsection 8(12) of The Occupational Health and Safety Act, R.S.O. 1980, c. 321 (“the Act”). The relevant facts are not in dispute. The Grievor is employed in the Ministry of Community and Social Services at its Rideau Regional Centre. He is one of three worker members of the Committee established and being maintained by the Employer at that facility pursuant to the Act. The chairmanship of the Committee rotates amongst the members and the Grievor was the chairman in February, 1982. An inspector with the Ministry of Labour, which administers the Act, had requested the opportunity to attend one or more meetings of the Committee and the members were anxious to have him do so. A meeting of the Committee had been arranged for a date in early February, 1982 and when advised of it the inspector responded that he’could not attend on that date but could attend if the meeting was held on February 18, 1982. The meeting was accordingly re-scheduled for that date. Thursday, February 18, 1952 was a day on which the Grievor was not scheduled to work. He attended the meeting, which was held at the work place and lasted about two and one-half hours. -3- Subsection 2(l) of the Act declares that the Act binds the Crown and applies to an employee in the service of the Crown. Section ‘8 provides that where twenty or more workers are regularly employed the employer shall establish and maintain a Joint Health and Safety Committee; that the Committee shall consist of at least two persons of whom at least half shall be workers selected by the workers they are to represent or where, a trade union represents the workers, by the trade union; that among the functions and powers of the Committee is the identification of possible sources of danger or hazard to workers; that tine worker members of the Committee shall designate one such member to make periodic inspections of the work place and one or more such members to investigate any Casey where a worker is killed or critically injured; and that the Committee shall meet at least once every three months at the work place. Subsection 8(12) reads as follows: A member of a committee is entitled to such time from his work as is necessary to attend meetings of the committee.and to carry out his duties under sub- sections (8) sod (9) and the time so spent shall be deemed to be work time for which he shall be paid by his employer at his regular or premium rate as may be proper. Two other subsections deal ,with payment to workers for time spent in activities under the Act. Subsection 7(9) provides that a worker health and safety representative “is entitled to take such time from his work as is necessary to carry out his duties...and the time so spent shall be deemed to be work time for which he shall be paid by his employer at his ‘- regular or premium rate as may be proper.” Subsection X3(5) provides that “the time spent by a committee member...in accompanying an inspector during his physical inspection shall be deemed to be work time for which he shall be paid by his employer at his regular or premium rate as may be proper”. Article 13 of the collective agreement reads (in part) as follows: ,13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (IX) times the employee’s basic hourly rate. 13.2 In this ‘Article, “overtime” means an authorized period of work calculated to the nearest half- hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off. At the hearing counsel to the Employer raised the preliminary objection that the grievance ‘is not arbitrable because it does not arise from an alleged contravention of ‘the collective agreement between the parties and further, that the Griever’s recourse is by way of a request to the :Minister of Labour for the issuance of an order for payment as provided by the Act. In rebuttal, counsel to the Griever argued that ‘,under subsection 8(12) of the Act attendance by workers at Committee meetings is deemed to be work time and that as a consequence such attendance comes within the ~terms of the collective agreement, in the presenr instance Article 13 - Overtime. Counsel further argued that the existence -5- of a statutory procedure for the same purpose does not bar arbitration of the matter. In reply, counsel to the Employer submitted that what is being sought, in effect, is an amendment which would change the substance of the grievance. The Board reserved decision on the objection and proceeded to hear argument on the merits. The Board had some initial concern with the fact that the written grievance made reference to the Act but not to the collective agreement. However, on further consideration, we are satisfied that this is not a fatal defect. The Employer cannot have imagined that the Crievor, by stating his grievance in the terms he used, was invoking a procedure under the Act or that his intention was other than to file a grievance under the collective agreement. 1~ any event, the grievance was entertained by the ~Employer and it was not suggested before the Board that the Employer, during the course of ~the grievance procedure, mistook the substance of the grievance or that the Employer is taken by surprise by the argument that ,the collective agreement applies in the circumstances present. As to the submission that because the Act provides a procedure by which the Grievor may seek relief he cannot pursue a remedy at arbitration, we fail to see why, absent a legislative prohibition, ~a worker r&presented by a bargaining agent and covered by a collective agreement should not be able to avail himself of that avenue. The Act does not exclude arbitration as a forum and we are not aware of any precedent that would require us to defer to an alternative forum in the circumstances of this case. We note in Brown and Beatty, Labour Arbitration in Canada, at pp. 17-19, a quotation from -6- an article in which the author (Weiler) expresses the opinion that “arbitration should be available as a primary source of relief” as opposed to other procedures or forums. Finally, the collective agreement sets out the terms and conditions of employment of the workers covered by it. It.is not the case that those terms and conditions are displaced by the provisions,of the Act (here that Article 13 is displaced by subsection 8(12)) but rather that they are to be interpreted giving effect to the overriding mandate of the legislation. Accordingly, we find that the grievance is properly before the Board. Turning ,to the merits, counsel to the Crievor submits that the Act, in requiring the Employer to establish and maintain a Committee, contemplates that workers, once having become members of a Committee, will attend meetings and otherwise assist the Committtee to carry out the duties assigned to it under the Act; that under subsection 8(12) attendance at Committee meetings is, work for which worker members are entitled to be paid; that this is so whether the meeting takes place during or outside a worker member’s regularly scheduled hours of work; and that the Crievor is entitled to payment under Article 13 of the collective agreement. Counsel to the Employer argues that the governing words of subsection 8(.12) are the opening words; that a worker member’s absence from his normal work to attend a Committee meeting during his regularly scheduled hours of work becomes an authorized absence by virtue of subsection 8(12) and he is entitled to payment as though he had remained at work; and that such attendance outside such hours is neither contemplated by the Act nor covered by the Collective Agreement and the griever is not entitled to any payment. As to .any right or entitlement of workers or power of Committees granted by the Act, we conclude that an employer’s authorization for their exercise, if at all ,a consideration, is necessarily Implied by the grant itself. The Employer does not,,of course;assert a general right to authorize Committee meetings or the attendance of -’ ,. worker members at them. The claim made is that, lacking any source of authorization., the attendance of a particular worker member at a particular meeting does not qualify for payment. As we see it, if the attendance of the Crievor at:the meeting in question is “work time” under subsection 8(12) of the Act, that is, if it gives rise to a right granted by the subsection, it is an “authorized period of work” under Article 13 and the Crievor is entitled to be paid for it at the rate specified in the article. L It is common ground that a worker’ member of a Committee attending a Committee meeting during his regularly scheduled hours of work is entitled under subsection 8(12) of the Act to be paid for that time, which is to say that in such event his pay is not to be reduced because of his absence from his normal work. Whether or not this is the only form of payment made mandatory by the subsection must be ascertained by construing the language in which the intention of. the Legislature is expressed. Authority, in fact a duty, to do so is found in McLeod v. Egan, (1974) 46 D.L.R. (3d) 150, fi97a 1 S.C.R. 517. The following excerpts from the concurring opinion of Laskin C.I. are apposite: (“; ‘< : “’ )Y’ . .# -a- Although the issue before the arbitrator arose by virtue of a grievance under a collective agreement, it became necessary for him to go outside the collective agree- ment and to construe and apply a statute which was not a projection of the collective bargaining relations of the parties but a general public enactment of the superior provincial Legislature. and further That is not to say that an arbitrator, in the course of his duty, should refrain from cpnstruing a statute which is involved in the issues that have been brought before h,im. In my opinion, he must construe, but at the risk of having hi construction set aside by a Court as being wrong. Subsection S(12) may fairly be said to suffer from some lack of clarity. On first impression it appears to envisage that attendance at Committee meetings and the inspections and investigations described in subsections (8) and (9) will always occur entirely within the regularly scheduled hours of work of all the workers concerned. But the subsection (with good reason) does not direct that they occur at such time, and given the variety of work schedules, such as shifts, to be found at work places, to assume that they will would be a highly unrealistic expectation. Further, if the sole purpose of the subsection were to create an entitlement of workers to paid time from normal work during their regularly scheduled hours of work for Committee meetings, inspections and investigations, one would expect to find a simple provision for time off without loss of pay. Yet the subsection goes on to provide that “the time so spent” (i.e. in the activities in question) is “work time” for which the worker is to be paid -9- “at his regular or premium rate as may be proper”. It must be presumed that the terms quoted are intended to have meaning. To take them to mean no m’ore than that a worker shall not be deprived of his pay because he engages in one of the activities mentioned during’his regularly scheduled hours of work instead of performing his normal work would, in our opinion, be too narrow and unreasonable a construction. We believe the subsection must be read as making two distinct provisions: first, that a worker is entitled to time off fiom his normal work to engage in the specified activities; and second,. that a worker is entitled to be paid for time spent in the specified,activities at the rate established by the terms of his employment. We are not persuaded that the second provision may not operate independently of the first. To approach the matter from a broader viewpoint, the cooperation and’participation of workers are crucial to. the effectiveness of the legislation. The general scheme of the Act presupposes that workers will be selected to serve on Committees and conduct insptitions and investigations, will attend Committee meetings, and will otherwise perform the roles assigned to them by the Act. It seems to us an admissible assumption that in doing SO they will all receive even-handed treatment. If, for example, a Committee meeting may most conveniently be held immediately before or after one worker member’s regularly scheduled hours of work, and rather than foregoing the meeting he chooses to.recognize an obligation to attend, and he is not paid for his atrendance as are the other worker members, different conditions have been applied to . - 10 - his attendance than to theirs and he has been penalized in relation to them. Payment to him, in accordance with the collective agreement, as though the time spent at the meeting were time spent at his normal work, would put him on the same footing as the other worker members. Two arbitial decisions involving circumstances similar to those of the present grievance were cited to the Board. In Re Perley Hospital and Ontario Nurses’ Association,, i3 L.A.C. (2d), 178, the Grievor, a worker member of a Joint Health and Safety Committee, had attended a meeting of the Committee held on one of her days off and was not paid for the time so spent. The Board of Arbitration was of the opinion that the parties had not dealt with the subject of attendance, at Committee meetings in their collective agreement and that the Legislature did not contemplate the possibility that workers might have to, or could, become involved in safety matters outside of their regular tour of duty. While conceding that if a Committee is to function adequately all members should be present at all meetings, the Board held that such attendance was not “authorized work” under the overtime article in the applicable collective agreement. The Board concluded that there was a “gap” in both the legislation and the collective agreement. The grievance was dismissed. In Re St. Vincent Hospital and Ontario Nurses’ Association (unreported) the Grievor, a worker member of a Joint Health and Safety - 11 - Committee, had attended four meetings of the Committee held on days when she was not on duty and was not compensated for the time so spent. The preliminary objection of, the Employer that the matter was not arbitrable because the right to compensation, if any, arose under the legislation was rejected, the Board of Arbitration ruling that the, Grievor’s claim arose out of an article in the parties’ collective agreement providing that nurses “shall be compensated for their services in accordance with the following salary grid”. The Board was of the opinion that subsection 8(121 of the Act must be interpreted as entitling a Committee member ‘to .compensation for attending Committee meetings whether or not such attendance required taking time away from work, but rested its jurisdiction on the claim asserted ‘under the applicable collective agreement. The Board held that attendance at Committee meetings constituted “services” under the collective agreement and that this conclusion was confirmed by the mandatory provisions of the Act. The grievance was allowed. We find ourselves unable to agree with the findings and the decision in Perley Hospital. In the result, we find that the Griever is entitled to be paid for his attendance at the Committee meeting held on February 18, 1952, at the rate of one and one-half times his basic rate, in accordance with Article 13 of the collective agreement. -- ., .‘-,. .~ . : .- - 12 - The grievance is allowed and it is hereby ordered that payment be made to the Crievor as herein determined. DATED at Toronto, Ontario this 25th day of August, 1982. P. Draper Vice Chairman / J. McManus kkmber W. Evans Member /lb