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Home My WebLink About1982-0569.Montgomery.83-10-061) ONTARIO CRmvN EMPLOYEES GRIEVANCE SETTLEMENT BOARD NOTICE Re: 569/82 OPSEU (John L. Montgomery) and Crown/Ontario (Ministry of Health) This .is to notify all concerned that the minority's dis- senting opinion in the Board's decision 569/82 Montgomery (Jolliffe) August 1983, is to be attached to the majority award. A ~copy of the dissent is attached to this notice. Toronto, Ontario October 6, 1983 H.F. Goss, Registrar ch Attach. 3 . - 2 - Nevertheless, at pages 12 and 13 OF the majority.award, Vice-Chaiiman Jolllffe states: Having regard to Article 18 of the agreement, the matter is clearly arbitrable. The following provision of 18.1 leaves no room for doubt: 18.1 The Emplqyer shall continue to make reasonable provisions for the safety and health 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. In effect the griever alleges that the Employer has failed to “co-operate to the fullest extent, possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees’:, and the griever cites the relevant requirements in the Occupational Health and Safety Act. I simply cannot support the above conclusion. In :my view, Article 18.1 is a general statement of principle which serves as a “preamble” to the substantive clauses of ArticIclE. These latter clauses, which contain detailed provisions reqardlng safety equipment and protective clothing (18.21, safety boots (18.3), apparel (18.4) and video display terminals (18.5, 18.6 and 18.71, are silent with respect to the rights, functions or responsibiJitles of members of joint health and safety commlttees. Although Article 18.1 may assist in the Interpretation of Article 18’s substantive clauses, it. is too thin a reed to serve as an independent source of rights or obllgallons. i 1 i. - 3 - ‘My view in this regard is supported by the decision of Arbitrator w. Gerald Punnet!.t in Re National,Steel,Car Corporation, and,United ‘Steelworkers~of~Americaj~Local~7135,~ 19RO (unreported$, a case In which it was alleged by the Union that the company had violated Sections 73, 74 and 143 of the Occupational Health and Safet~y Act.. The issue before the arbitrators was whether the Act, or any portion of it, was incorporated into the parties’ collective agreement by Sectlon 8.01 of the agreement, which provided: The Company shall continue its practice of makinq reasonable provisions for the safety and health of its employees at the plant. Referring to Section $.Ol as a “motherhood” clause, Arbitrator Punnett decided that it did not incorporate the Act, that Section 8.01 had not been breached and, accordingly, that he was depr,ived of jurisdiction. In addition to his remarks on pages 12 and 13, the Vice-Chairman makes the following comments at papes 13 and 14: It must n’ot be overlooked that by Section Crown Employees Collective Bargaining Act, 1 1 srisinq from the “administration” of a co1 is made arbitrable. Management is charged “administration” and al1 the functions Seth (I) of the same Act. 9 (I) of The a difference ective aqreement with out’in Section 18 In discharging those functions management is entitled to expect that emploeyes perform their duties in a lawful manner ; foe example that employees will not operate a vehicle or other equipment In any way contrary to the requirements of such statutes as t.he Highway Traffic Act. By the same token, employees are entitled to expect that management will manage the undertaklng in accordance. with the requirements of law, .includinq for example the Occupational Health and Safety Acts. This is another consideration which confirms the arbltrahility of Mr. Monlgomery’s complaint. - 4 - In this regard,;.it must be stressed’that Sectipn 19 (1) of the Crown Employees Collective Bargaining Act refers to differences arising from the administration of,a’collective aqreement. It does not provide for the arbitration of differences arising from the employer’s handlinq of matters not - covered by the Collective Agreement, i.e., matters on which the Agreement .is silent. As well, Article 27.1 (Grievance Procedure) of the Collective Agreement 27.1 This provi sion makes it clear that the griever cannot use thae grievance procedure to enforce rights arising outside the Collective Agreement. Similarly, the Board has no jurisdiction under Sec’tion 19 (I) .of the Crown Employees Collective Bargaining Act to enforce such rights. provides that: It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arisinq, from, the, interpretation, yplication; administratron, or siieqed cont.raventlok of thus Agreement; rncludrng any questlon ss to whether a matter 1s arbitrable. (emphasis added) In his grievance, Mr. Montgomery very specifically identified the second or “hindering” aspect of his grievance as arising under the Occupational Health and Safety Act. Indeed, he specified the particular section, (33), subsection (5) and clauses’ (a & c) involved. On the ‘other hand, he made no reference whatsoever to article 18 or any other provision ih the Collective Agreement. Section 33’~ (5) of the Occupational Health and Safety Act provides as follows: 33.(5) No person shall knowingly, (a) hrnder or interfere with a committee, a committee member or a health and safety represent.ative in the exercise of a power or .- perfcrmance of a duty under this Act; , 1 - 5 - (b) . furnish a committee, a committee member or a health and safety representative with false information in the exercise of a power or performance of a duty under this Act; or (c) hinder or interFere with a worker -selected by a trade union or trade unions or a, worker selected by the workers to represent them in the exercise of a power or performance of a duty under this Act. 1978, C. 83, S. 33. Under Parts II and VIII of the Act, responsiblity for the administration and enforcement of ?he Act is assigned to the Ministry of Labour. Part IV of the act sets out the penalties that may be applied where a person contravenes or fails to comply with a provision of the Act. Simply ‘put, if the griever believed that the employer violated Section 33 (5) of the Occupational Health and Safety act on August 6, 1982 and August 31, 1982, he should have pursued. the matter through the Ministry of Labour and, if necessary, the courts, not through the grievance procedure in the collective - agreement. In conclusion , ,I, believe the Board has exceeded its jurisdiction in two ways: i) it made a ruling on a mat,ter that was not arbitrable; and, ii) its decision “enlarqes” Article 18.1 contrary to Article 27.14 of the Collective Aqreement. , ‘6 - 6 - 2. Attendance,at Inspections As a result of recommendations .made by Messrs. Montgomery and Thomson following their monthly inspection of the ambulance stations on August 4, 1982, the station at 1181 Parisien Street was inspected by the Gloucester Fire Department on August 6, 1982 and the station at 71 Lebreton Street was inspected by the Ottawa Fire Department on August 31, 1982. The griever’s allegation that he was “hindered” contrary to Section 33 (5) of the Act stems from the fact that the employer did not advise him of these fire department inspections until after they had been carried out, thereby preventing him from participating in them. Thus, the r$eal issue raised by ,the griever was whet~her he had a right to attend these inspections. The Vice-Chairman has concluded that: i) it was not unreasonable for the griever to insist on attending; and, ii) it would have been “co-operative” on the part of management to encourage the qrievor to iattend. Under the,,Occupational Health and Safety Act, a worker member of a joint health and safety committee may: i) inspect the physical condition of the ivork place not more freauently than once a month; (3. R (8)); and, 11) accompany a Mrnistry of Labour inspector durrng his inspection of the work place. (s. 28 (3)). t - r - 7 - In the circumstances of this case, the inspections that the griever wished to attend on August 6 and.~31, 1982, were carried out by fire department inspectors. Such inspectors are appointed under and for the purposes of, either the fire Department Act or the Fire Marshalls Act. They are not “inspectors” under the Occupational Health and Safety Act. As well, the griever’s monthly inpsection of the work place was completed on August 4, 1982. He and Mr. Thomson reported their findings and recommendations orally to Mr. McEwen on August 4, 1982. Their written report is dated August 5, 1982. In my view, had the grievor attended the ‘foIlow-up inspections on August 6 and 31, 1962, he w’ould have breached Section 8 (8) of the Act by inspecting the work place more frequently than once a month. ‘3 The Vice-Chairman’s remarks in this regard seem to suggest that the griever’s attendance ought to have~been permitted under the “co-operate to the fullest extent possible” phrase in Article 18.1. For the reasons mentioned earlier, I cannot accept the use of Article 18.1 as an’ independent source of subst.antive rights and obligations. 3. Payment for.August~5;1982 There are three ways the griever could have been at work for pay purposes on the morning of August 5, 1982, while he was waiting for the fire inspector at the Parisien Street base: i) as part of his regularly scheduled work week; ii) by performing authorized overtime. work;, or, Iii) by beinq “doomed” to be at work pursuant to some provrs~on of the Dccupat ional Health and Safety Act. ‘ ,a r, - R - The evidence reveals that during the period in questlo”, the grievor was between shifts, i.e., he was off duty. .Therefore, item (i) above was not applicable. As well, Mr. McEwen testified that he made it clear to the griever on the afternoon of August 4, 1982, that management did not require his attendance at the inspection planned for the next day. Therefore, it cannot be said that the griever was performing “authorized overtime work”, in the normal sense of that phrase. provlsion In supper Section 8 Thus, the key compensation issue is whether the grievor was entitled to be paid as a result of the operation of some was the Union’s position that he was. -l ion, the Union referred the Board to , which provides: in the Act. It t of its submiss (12) of the Act 8.(12) 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 subsectins (8) and ‘(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 proper. The employer’s rebuttal, which is not addressed in decision, bears repeating. The employer submitted evidenced by the phrase “such time, from~ hiss work”, only contemplates persons taking time out from thei work, without l,oss of pay, to carry out their funct Section 8, subsection (8) Bnd (91, of the Act. In rate as may be the majority that, as Section a( r regular ions under 12) other words, the employer took the position that Section 8(12) serves to protect persons against the loss of wages that they would otherwise have earned at the reqular or premium rate had ‘they not been required to leave their reqular duties to perform their health and safety functions under 8 (0) and (9) of the Act. , *’ ‘,a ‘1 - 7 - In support of Its Interpretation of Section R(12), the employer referred the Elo’ard to the language of Sections’~23 (12) and 28 (5) of the Act. These sectlons, which apply where a commi.Ctee member attends a refusal to work situation (s.23) or the inspection of a Ministry of Labour inspector (s. 281, are worded suite differently than section 8 (12). To facilitate comparison, the pertinent provisions are reproduced below: 8(12) A member of a committee is entitled to such.timefrom his work as is necessary to attend meetiigs of the committee and to carry out his duties under subsections (8). and (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. 23(12) The, time,spent by a person mentioned in clause (4)(a)(b) or (c) in carrying~ out his duties under subsectins (4) and (7) shall, be, deemed‘to, be,norkinq, time for which the person shall be paid by his employer at his regular or premium rate as may be proper. 28(5) The time spent by a committee member representing workers, health and safety representative or worker selected in accordance’with subsection (3) in accompanying an inspector during his physical Inspection, shall be deemed, to be work time for shich he shall be paid.by his employer at. his regular or premium rate as may be proper. 1978, c. 83. s. 28. (emphasis added) It will be noted that sections 23(12) and 2AC5) do not contain the “time From work” provIsion found in Sect ion R(12). G i,, TV - 10 - The employer ~submitted that the law must be taken as it is found and that the difference in lanquage had to be qiven effect. I agree. I would have awarded that, even if he was entitled to be present and was carrying out his duties under Section 8 (8) of the Act on the morning of August 5, 1982, the qrievor was not entitled to any compensation by way of Section 8(12) of the Act since he was off duty at the time (i.e he did not require “time from his work”) and did not stand to lose any wages by attending the inspection. /<$izyL2J.~. a---+ P.D. CAMP, MEMBER