Canadian Labour Reporter

November 18, 2019

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a HAB Press business 2019 November 18, 2019 ARBITRATION AWARDS to establish a succession plan that involved promoting some firefight- ers and adding permanent ones. During this time, Paquet was on leave while he travelled outside the country but agreed to come home early for mandatory training in September. He was on a list for training, but it was later cancelled On Nov. 17, the fire chief met with Paquet to ask him to com- mit to becoming a permanent firefighter for the airport. How- ever, Paquet refused because of his other job. The fire chief was concerned that Paquet's training wasn't up to date — airport stan- dards required specific airport training every three years and the airport had new vehicles re- quiring specific skills to operate. Because Paquet had left his posi- tion as a regular firefighter at the airport, he was behind schedule in his mandatory training. For the fire chief, a temporary firefighter needed to accept a regu- lar firefighting position to receive all the required training. Since Pa- quet refused to make such a com- mitment, his employment with the airport was terminated effective Nov. 18. The termination letter stated that the temporary fire sta- tion was part of the succession plan for the firefighting team and was a gateway for regular firefighters. In April 2017, the airport post- ed for the position of temporary firefighter with a succession plan- ning provision that the candidate should have a "desire to continue his career in the airport environ- ment." Paquet applied for the position but refused to sign the pledge to accept a regular position if offered. As a result, he lost the position to another candidate. The arbitrator noted that the airport's succession plan had an objective to meet its interests, but it wasn't created through consulting with the union and wasn't a result of co-operation between the airport and the union. In addition, the job posting's requirement of a "desire to continue his career in the airport environment" was vague in that it didn't specify whether the candi- date should want to pursue regular or temporary employment, said the arbitrator. The arbitrator found that the airport knew Paquet was going to work as a regular firefighter else- where when it hired him as a tem- porary firefighter in June 2014, so it knew he didn't want to be a reg- ular firefighter for the airport. The commitment to become a perma- nent firefighter was never part of Paquet's hiring conditions or the collective agreement section on temporary firefighters, said the arbitrator. The arbitrator also found that when the airport cancelled his training in September 2016, it en- sured he wouldn't have the skills required to work as a firefighter at an airport. It was likely the de- cision to terminate him was made well before his actual termination date, said the arbitrator. The airport was ordered to reinstate Paquet as a temporary firefighter, compensate him for any lost pay, and ensure Paquet received the necessary training for firefighting at an airport. Reference: Alliance of the Public Service of Canada v. Quebec Airport Inc. Denis Provençal — arbitrator. Sophie Lefrançois for the employer. Goretti Fukamusenge for the employee. July 31, 2019. 2019 CanLII 70492 the Canadian Union of Public Em- ployees (CUPE) includes a provi- sion dealing with the work of the bargaining unit — article 11.01 — that stipulates: "Employees not covered by the terms of this agree- ment will not perform duties nor- mally assigned to those employees who are covered by this agree- ment, except for the purposes of instruction, experimentation, or in emergencies when regular em- ployees are not readily available." In 2016, the hospital reviewed its "skill mix" with the intention of improving safety, quality of care, staff retention and cost effective- ness. It decided to eliminate or reduce orderly positions in sev- eral programs, which resulted in the shifting of duties normally assigned to orderlies — such as assisting with discharges and ad- missions, directly supervising and helping clients, and helping cli- ents and nurses with routine tasks — to RNs and RPNs, who occa- sionally performed orderly duties when needed, though some had never been done by RNs. Some RPNs were added to staff as a re- sult of the change. In September 2018, staff in the mood and anxiety program were told that all duties performed by or- derlies would thereafter be "picked up" by the rest of the staff, including RNs and RPNs. RN and RPN as- signments were linked to the indi- vidual clients under their care each day, with the most unstable or acute clients assigned to RNs. The union objected to the move as some of the orderly duties were being assigned to RNs — who were members of different collec- tive bargaining unit, the Ontario Nurses' Association (ONA) — contrary to the collective agree- ment. This wasn't an issue for any duties assigned to RPNs, who were CUPE members. In addition, some RNs and other staff in the mood and anxi- ety program were concerned that the elimination of orderlies would make it more difficult to de-esca- late and restrain clients who lost control or to help with client re- quests in a timely manner. They also felt it was difficult to focus on individual client care as RNs had to spend more time on tasks "bet- ter handled" by orderlies. The arbitrator noted that the purpose of article 11.01 was to en- sure that duties normally assigned to members of the bargaining unit remained in the bargaining unit, and it was clear that the normal duties of orderlies in the mood and anxiety program had been performed by both RNs and RPNs when necessary — though only occasionally by RNs. However, the arbitrator found that the hospital was assigning the normally assigned duties of the orderlies to both RNs and RPNs without any distinction — which was different than the previous practice of RNs occasionally do- ing the work. This indicated a "sig- nificant shift in duties" normally done by CUPE members to ONA members, which was a breach of article 11.01, said the arbitrator. The arbitrator also found that RNs performing orderly duties on rare occasions was permitted by the collective agreement and didn't "erode the bargaining unit," but formally assigning them a significant number of duties nor- mally done by CUPE members was going too far. It was also fine for RPNs to be assigned the duties, as article 11.01 "protects the work, not the work of any particular classification." The arbitrator upheld the griev- ance but decided not to award damages due to the hospital's "well-intentioned decisions about how work should be assigned." In- stead, the arbitrator declared a vi- olation of the collective agreement and ordered the hospital to assign orderly duties to members of the CUPE bargaining unit. Reference: Royal Ottawa Hospital and CUPE, Local 942 (2018-942-RP1). Paula Knopf — arbitrator. Stephen Bird for employer. Wassim Garzouzi for employee. Oct. 11, 2019. 2019 CarswellOnt 17195 No formal relocation allowed for nurses in different unit < Realignment pg. 1 < Burned pg. 1 New plan required employees to commit to regular position Candidate should have "desire to continue his career in the airport environment."

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