HomeMy WebLinkAbout1984-1511.Union.85-07-31IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Union Grievance)
Grievor
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The Crown in Right of Ontario (Ministry of the Solicitor General)
Before: P. Enopf "Vice Chairman
~1~. Tfi&nion Member
M. F. O'Toole .Member
For the Grievor: T., Moore Grievance Officer-i Ontario Public Service Employees Union
For the Employer: M. M. Fleishman
Counsel Crown Law Office, Civil Ministry of the Attorney General
Hearing:
Employer
May 30, 1985
This is a Union grievance. The’ complaint of the Union as
stated in the grievance is:
Facts whi
That the Employer is violating the terms
of Article 3 of the Collective Agreement in refusing to require unclassified V.D.T.
operators to undergo eye examinations in the same manner as classified V.D.T. operators.
The parties were able to achieve an agreed Statement o’f
ch sets out the background and the nature of the issue:
The Parties hereto agree to the ,following facts:
The Grievance Settlement Board has jurisdiction to hear and resolve the issues
raised by this grievance.
2. The Collective Agreement betweenManagement Board of Cabinet and the Ontario public Service Employees’ Union covering the period.
January 1, 1982 to December 31, 1983, was in effect at all times relevant to this grievance.
3. There are a number of classified employees of the Ministry (eg. Civilian Radio Operators. at
OPP Detachments) who use Visual Display Terminals (VDT,s) for more than two hours per day on a regular~basis. These employees are required by the employer to have
initial and annual eye examinations.
4.
5.
The Employer has promulgated a policy entitled Eye Examination Plan for Video Display Terminal Operators (Ontario kanua 0 1984, attached).
There acre a number of unclassified VDT operators (members of the bargalning unit)
working for the Ministry (e.g. Civilian Radio Operators) who do more than two
hours work on VDT terminals per day on a regular basis. These employees are not required by the employer to have either initial or annual eye examinations.
6. The Parties are agreed that the issue before the Board is whether or not the unclassified VDT operators referred to in point 5 above are entitled to eye examinations on the same basis as the classified VDT operators referred to in point 3 above.
It is to be noted that although the. agreed Statement of Facts makes
reference to the Ontario Manual of Administration, 1984 and the
Employer’s counsel had no objection to the Board “receiving”
the Manual in evidence, the .Employer argued at the outset that the
Manual,was not admissible in that it amounted to extrinsic evidence
that ought not to be before the Board because there was no ambiguity
in the Collective Agreement. As will ,be apparent below, this issue
became the subject of further debate.
,In addition to the agreed Statement of Facts, the Union
adduced evidence through an optometrist, Dr. Brian Levy. The
presentation of his credentials qualified him as an expert in,the
field of Optometry. He described to the Board his knowledge and
experience in the examination and treatment .of V.D.T. operators.
Dr. Levy explained that the common complaint which arises
from VDT. operators is eye fatigue, being eye strain, or
suffering red or dry eyes. However, this is not the fault
of the terminal itself. Instead, it is said to be-more
related to the state of a person’s visual health or welfare
at the time he or she is working. In other words, if a
VDT operator has an uncorrected eye defect, he or she will
develop fatigue or red or dry eyes as Tresult of working
on the machine. Dr. Levy explained that quite often, some
eye problems never even surface until a person begins
h’orking onthe VDT. For example, if a person is far sighted,
the symptoms may ‘only arise once they begin working closely
on the terminals. Thus., people c’an and shduld be tested to
determine what, if any, eye defects they have if they are
working on the VDTs, The teslswhich should be conducted are
the following:
1. Unaided visual acuity (letter chart test).
2. Refractive findings,
3. Corrected visual acuity.
4. Amplitude accomodation - this deals with the
eye’s ability to focus as objects are brought closer.
5. Suppression - a test-for problems in the binocular
visual system.
6. Muscle balance (near one metre, distance).
7. Slit lamp biomicroscopy.
Dr. Levy further esplained that an optometrist is able to determine
a defect in the eyes and correct it by performing these tests on a “:;
patient. Once corrected this usually solves the problems that operators f:: @
of VDT’s have been suffering. Dr. Levy xas asked, “Does carrying out :~: :~;
these tests play an important role in the health and safety of the VDT 1::
Operators?” His response iias “Absolutely. Seeing these people and pickia :[
up problems could prevent these peopIe from getting eye strain
and developing other problems. . ..The annual chcsk up is
also important because the eye is dynamic and doesn’t remain
static. It enables us to monitor any physiological changes.”
Dr. Levy was also asked ‘I.&-e the tests essential to any
program tc promote the health and safety of VDT operators?”
His answer xas “Yes.“. On cross-esamination, Dr. Levy admitted “..
that the test5 curlined abo1.c are not rhosc lihich ZIYC specifically
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designated for \‘DT operators hut would be‘performed by any
responsible optometrist whose patient was a
VDT operator. However, he admitted that some optometrists may
not perform the s,lit.lamp biomicroscopy and that different
distances may be employed by the optometrist in performing
some -of the tests. In addition, Dr. Levy admitted that eye
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examinations performed by optometrists are paid for through
the Ontario Health Insurance program. OHIP covers one full
eye examination per year and that eye examination would
cover the tests outlined above. However,.while the slit lamp
biomicroscopy is not a required test under the OHIP~scheme,
Dr. Levy himself would perform it as part of the regular
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examination of VDT operators. Finally, Dr. Levy explained
that if a patient is required to take an eye examination,
OHIP would not cover the cost of the examination.
Kith this factual’background, the parties presented
arguments to the Board. The arguments centred around :. ‘.
the interpretation and the applicability of Article
3.1Oof the Collective Agreement:
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The Employer 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 healthy of all employees.
The union argued that Articlej.10 requires the employer to
“continue to make reasonable provisions for the safety and
health of its employees” and to “provide for the ‘prevent ion
of accidents’ and . ..the reasonable promotion of safety and
health of all empicyees.“. It lias submitted that in order to
a reference. Further, it was said that Artic1.e 3.1Ocreates
substantive rights because it is the only health and safety
provision for unclassified,employees. Once reference is made
to tbe Vanual, the unionargued .that the Manual contains a
policy for all employees, including unclassified staff, which
creates the obligation on then employer to require employees
to have annual eye examinations and that the examinations be
paid for by the employer. Further, or in the alternative,
the union argued that the evidence of Dr. Levy established
that eye examinations are “essential” in the‘promotion of
health and safety of VDT operators. Thus, the employers’
failure to require and pay for such examinations amounts to
a violation of its duty under Article 3.10to “cooperate to
the fullest extent possible in the prevention of a.ccidents
and in the reasonable promotion of safety and health”. The
union referred the Board to the following cases. OPSEU
(Davidson) and the Crolin in Right of Ontario, Ministry of
Natural Resources, unreported, G.S.R. File 595180, December
22, 1982 (Samuels); OPSEU (Howes) and’the Crown in Right of
Ontario (Ministry of Transportation and Communications)
unreported, G.S.B. File 356/62, November 25, 1982 (verity)
.as considered by the Divisional Court in 1 fier Ma~e+ty the
Queen in Right of Ontario and Ontario &&LIP SPrVmployees’
Union and Holies,, unreported, January P, 1984 (S.C.0.); Finally,
determine what is meant by the term “reasenablr” in Article :
# 3.19, reference must be made to the external document, .i.e.
the Ontario Manual of Administration. This would assist in determining
whether reasonable requirements had been met by the Employer. It :was .,.,
argued that the Article on its face is impossible to interpret without :;;‘.
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the union argued that the employer's pol'icy with regard to
eye examinations for MT operators as contained in the Manual
applies, on its face, to all employees. This policy was
published in June of 1984,~ after the Collective Agreement was
signed. Thus, it was said that if the government intended that
the policy not apply to the unclassified staff, this cauld easily
have been designated as such in the policy. But by publishing
the policy and granting the paid examinations to the classified
staff, the employer hould be acting unreasonably if it deprived
the unclassified staff of such a benefit. Inthe alternative, the
bunion argued that the testimony of Dr. Levy establishes that the
' provision of eye examinations to such operators is essential and
this would create a requirement under Article 3.~10 for the employer
to promote health and safety,by requiring such examinations.
Counsel for the employer commenced his submissions by
dealing first with the arguments of the union. It was said
that the Howes case was distinguishable because the article
being interpreted there was devoid of meaning without reference
to another document. It was said that that was not the case in
this situation. Further, the Davidson decision was also said
to be distinguishable because it dealt with legislation rather
than an external document and that ArtScle 3.10 contained no
ambiguity. Further. with regard to "reasonableness" it was sa,id
that the employer's conduct had to be tested against what
alternatives were available. In the.case at hand, it was said
that the fact that employees can obtain annual, eye examinations at
no cost to~themselves through OHIP, creates a situation that
does not make it reasonable
ibr thr employer to have acted as it did.’ Further, it was
argued that since the Collective Agreement specifically
provides for eye examinations to be given to classified staff, .
the absence of such a provision for the unclassified staff is
an indication that what is being sought is simply a benefit
that was not achieved through collective bargaining and which
was specifically excluded from the unclassified staff by
virtue of the Collective Agreement, The Board was referred
specifically to Articles 3.1, 3.10, 3.14 and 18.6 to support ,’
this.
In addition, the Employer argued that~Article 3.10 is simply
a general purpose clause which creates no substantive rights and that
the Union cannot rely upon it to establish a benefit. References
were made to the cit.ations on the subject and Professor Palmer’s,text,
Collective Agreement Arbitration in Canada and Brown &.Beatty’; text,
on Canadian Labour Arbitration. In addition we were referred to the
case of United Packing House Workers, 9 LAC 20 (Laskin) . The Board
Gas also reminded that Article 27.14 prevents the Board from expanding
upon the provisions in the collective agreement.
Finally, counsel, for the Employer argued that the Manual of
Administration referred to above ought not to be accepted into evidence
-. because such material is only admissible to resolve an ambiguity in
the Collective Agreement. However, it was said that when read as
. a whole, there IS no latent or patent ambiguity in Article 3.14.
Thus, the Board should deal with the issue on the basis of the
Collect ise Agreement alone. The Board \ias referred to ,the case of
Victoria Hospital Corporation (1977) 15 LAC (Zd) 154 (Brent).. In the
alternative, it i<as argued that if a policy is admissible, the policy
itself does not apply to unclassified staff and therefore has no
application to this claim. The Manual states that~its scope of
application is: .,
The provisions of this Section of the Ontario Manual of Administration apply to all employee
groups except where otherwise stated, or where separate provisions are published in:
(a) A.Collective Agreement covering bargaining unit employees;
(b1 The Management Compensation Plan Administration Manual; or
(cl Section 10 of this volume covering senior appointments and compensation.
Further, or in the alternative, it was argued that the
Manual does not “create” benefits for parties but instead
sets out the procedure for implementing benefits which are
conferred through the Collective Agreement.
THE DECISION
In addition to Article 3.10, the relevant provisions
in the Collective Agreement are as follows:
Article 3: SEASONAL AND PART-TIME EMPLOYEES:
3.10 The Employer shall continue to make reasonable provisions #for t.he.,safety and heal.th of its
employees during the hours of~their employment. It is agreed that,both the Employer and the Union shal,l co-operate to the fullest extent possible
in the prevention of accidents and in the reasonable promotion of safe-fy and health of all employees.
3.14 The following Articles shall~also apply to seasonal or part-time employees: Articles 1, 9 11, 12, 15, 16, 17, 21, 22, 23, 25, 27, 32, 36 and 57.
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Article 18 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS:
18.1 The Employer 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.
18.6
(a)
(b)
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At the beginning of assignment to a VDT and annually thereafter, a MT operator who is regularly required to operate a VDT for two (21 hours or more per day shall be required to undergo an eye examination by
an optometrist who is qualified to conduct the following tests:
unaided visual acuity (letter chart test)
refractive findings
corrected visual acuity
amplitude accommodation
suppression
muscle ,balance (near, one metre, distant)
slit lamp biomicroscopy
The cost of the eye examination, not to exceed the OHIP fee schedule for such examinations, shall.be borne by the Employer, and the VDT operator shall authorize release
of a copy of the examination report to the.Employer.
Article 27 - GRIEVANCE PROCEDURE
27.14 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge
any provision of the Collective Agreement.
We shall deal first with the admissability of the.Policy
Manual. For several reasons’, the Board has concluded that it
is admissable and relevant as evidence .in this proceeding.
First, we find that there is an “ambiguity” in Article 3.10.
At the best of. times, the word “reasonable” provides
difficulties in interp-retation for parties and for arbitrators.
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But specifically in this situation, it Kould be impossible to
interpret what the word “reasonable”, would mean without
reference to external positions and documentations. Further .*
it is difficult, -if not impossible, to determine how to apply
this provision to the facts at hand. This in itself creates
an ambiguity. In Leitch Gold Mines Ltd. and Texas Gulf Sulphur
(1968) 3 DLR (3d) 161 (Ont. H. C. J.), the Court held ‘I... .
where the language is equivocal, or if unequivocal but its
application to the facts is uncertain or difficult, a latent
ambiguity is said to be present. The term “latent ambiguity”
seems now to be .applied generally to all. cases of doubtful
meaning or application. ” We must conclude that the situation
before our Board is one where the application of Article 3.10
to. the facts is uncertain and difficult and thus raises a
latent ambiguity. This is consistent with the Divisional Court’s
acceptance of this tribunal’s analysis in the Howes case where
the Board made reference to a manual in order to interpret
Article 22 of the Collective Agreement. In that case, the
Board had gone further and found that a violation of that
manual amounted to a violation of rhe term of the Collective
Agreement which it explained.
Having determined that the terms. of-the Manual are
admissable, the provisions of the Kanual ought to be explained.
First, the Nanual spells lout the requirement for eye examinations
for VDT operators. The language~of the requirements are identical
to the language in Article 18.6. In addition, the tests
specified are those which were explained by Dr. Levy in his
evidence. It is to be noted that the costs of the examination
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are to hc borne by the Implo~cr. ‘Ihe Union j, ~lcdrly seehing .-G
., declaration that the unclassified staff should also be required to
undergo the examinations that are set out in the policy Manual and
that the cost of those examinations will be paid by the Employer. But, .“’
on the facts before us, we have a. situation where the Employer is :I requiring that the classified VDT opera~tors undergo eye examinations whs ;:,$
they commence such work and thereafter annually. This cost
is paid for by the Employer. No such requirement is imposed
on unclassified VDT operators and indeed, there is no evidence
before the Board that any requirements are imposed on unclassi’f’ied
VDT operators with regard to eye care. Article 3.10 imposes an
obligation on the Employer to make “reasonable .. ‘.“:
. provisions for the safety and he’alth of the employees.” It 1s ~’
difficult to see how the Employer can be said to have made
“reasonable provisions” for the health and safety of the VDT
operators lsho are unclassified when their position is compared
to that of the rclassified staff. Indeed, no provision for
their health and safety seems to have been made. Further,
regardless of lchether the Manual, is admissablc, the’ cvidcncc
of I%-. Levy establishes that there is a necessity tliat \%‘I’ operators
obtain initial and annual eye examinations in order to protect their
visual health. No distinction can be made between the situation of
classified and unclassified staff in this regard. Thus, again
no “reasonable promotion of safety and health” has been made for the
unclassified VDT operators as opposed to those who are classified.
The situation before us is similar to t~hat before the Board in
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the Davidson case. In that case, the grievors were unclassified staff as ~_
well. They claimed that the Employer was obligated tc provide safety ‘0.:
boots by ,virtue of the Dccupational Health and Saf’etv .Act. The
Collective Agreement on the other hand, iaid that the employees
would supply’ their own footwear. It was accepted that the grievors
in that case performed work that exposed them to the hazards of
foot, injuries. While the Ministry required the workers to wear
the boots, the Ministry demanded that the boots be supplied
at the employees’expense. As in the case before this Board, the
Davidson case involved an interpretation of Article 3.10 and,
the question of whether *‘reasonable provisions” had been made
for the workers’ safety and health. In that case, the Employer
had argued that reasonable provisions .must mean a provision
which would be in accordance with the Occupational Health and
Safety Act. The Employer argued that the Act did not impose
an obligation for the payment,bf footwear and that the Employer had
fulfilled its YeasonabIe provisions*’ by its own Manual of
Administration. In that case; the Board held that the Employe,r
could not be said to have made “reasonable provisions” if
its actions offended the Occupational Health and Safety.Act.
However,
that&was interpreted by the Board in such a way
that it did not oblige the.Employer to pay for the safety
boots. Further, it vas held that the Ministry’s policy as
explained in the manual was reasonable and thus it had
fulfilled its obligation under Article 3610. The Board also
made reference in the Collective Agreement to Article 18.3.
which specifically dealt with a subsidy to be given to
classified employees .for the provision of footwear. Finally,
the Board held that the question of who supplied the
equipment or paid for’ the equipment is a matter of bargaining
Between -the parties.
The Davidson case is helpful‘without being
completely analagous. First, the case clearly establishes that
reference canbe made to a statute or an extringent document
to interpret the reasonableness of the provisions made by
the Employer with regard to Article 3.10. Secondly, it is ::-:;> :.; ,,.
interesting that in that case, the Board was urged by the
Employer to look at the policy manual in order to demonstrate
that provisions had been made for the employees. This is
clearly different from the posjtion taken by the Employer
in the case before this panel. Thus, if we were to accept
that the policy man&&cbes”not apply to unclassified staff
as the Employer urges, ‘then it must be concluded that no
provisions have been made for the unclassified staff,with
regard to visual health. Finally, the case is instructive
in that it points out that the question of promoting and
ensuring safety ought to be distinguished from the question of who bean :i
the cost of safety~ equipment. The cost of safety equipment
was said to be a matter of bargaining. In addition, the .
reference to,Article 18.3, although not specifica 1
as such, must be understood to imply that where a
benefit is obtained for the classified staff, the
ly stated
specific
absence
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of such a benefit in Article 3 must be taken to indicate that
the benefit does not apply to the unclas-Gified staff.
Taking the concepts and instructions from the Davidson
case and applying them to the facts at hand, the following
can be concluded. There is tie evidence befoie this Board that ::..
the Employer has made an; provisions for the visual safety and health
of its employees with regard to the VDT operators. Nor has
the Employer taken action to promote the safety and health . .
of the VDT operators with regard to advising them of the
necessity ,of the eye examinations. This is in contrast to
the position taken by the Employer with regard to the
classified staff where specific and “reasonable” provisions
have’clearly been made. However, this difference in treatment alone
does not ,conclude the case.
The Collective Agreement itself distinguishes between
the benefits conferred on classified and unclassified staff
in many xays. Khat is important to ~this case is that Article
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18.6 gives the classified staff the specific benefit of the
payment for the specified eye examinations. Article 3.1 and
Article 3.14 make it clear that the benefits of Article 18.6
,I1 have not been granted to the unc!ass ified staff. It is a we
accepted principle of interpretation that where a specific
provision is made for one situation, the silence in .another
situation implies the intention to exclude that situation
from the original provision. Thus, the specific benefits con- :. .~ .,_
ferred to the classified staff in Article 18.6 and the fact
that ,that Article was snot incorporated under Article.3.14
must be accepted as establishing that the Collective
Agreement does not bestow the benefits of Article 18.6 or its
equivalent on the unclassified staff.
We are then left with the situatiorf where we have :
concluded that the Employer hai not fulfilled Article 3.10
because it has not made provisions for the “reasonable ,.
promotion of safety and health” of the VDT operators. However,
we have found that the Employer is not require&under the collective
~agreementto give the unclassif,ied staff the same benefits that are founi z”
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in Article 18.6. Can it then be said that the Employer is
required to give the unclassified staff the benefit of the
.provisions in the policy manual? The policy manual, it is
to be remembered, has provisions which are identical to
Article 18.6. .The manual cannot be said to create a right
that was specifically excluded from the Collective Agreement.
Therefore, what we have here is the situation which is very
similar to the Davidson case. We must emphasize the
distinction between the duty of promoting and ensuring safety
from the duty of bearing the cost of ensuring such safety. We
agree with the Davidson analysis that emphasizes that the cost
of providing for visual welfare is a matter of collective
bargaining. But this is separate and apart from the duty of
promoting and ensuring such visual welfare. Thus we cannot
and will not Require the Employer to bear the cost of providing
eye examinations to the unclassified VDT operators. However,
we must conclude that the Employer has violated Article 3.10
bye not making provision for the promotion of health and safety
for the unclassified operators. This violation can be remedied by the
Employer ensuring that all unclassified VDT operators are advised
of the necessity of obtaining an eye examination from an optometrist
that covers the tests enumerated above: Further these unclassified
YDT operators are to be advised of this at the beginning.of their
assignment. Further, such operators are to be advised
of the necessity of annually undergoing further eye examinations
with the same tests. .,
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: _’ Therefore, we order that the Employer advise all unclassified
VDT operators who are required to operate a VDT for two hours or more
per day that they ought to obtain an eye examination from an optometrist
that covers the tests set out in the Manual of Administration and that
these tests are to be repeated annually. The Employer is not required ii:;’
to pay for such examinations.
The.Board remains seized with this matter in the event
that the parties require our assistance with the implementation of
this award.
DATED at Toronto this 3lst day of July 3
Vice -Chairman
M. F. O’Toole Member