Canadian Labour Reporter

April 6, 2020

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 2020 ARBITRATION AWARDS with the rate doubled on paid holi- days. Employees on standby had to be available for "immediate return to work during hours that are not the employee's regularly scheduled work hours" and, if called in, they would be paid the call-out pay rates. The standby pay provision stated that generally, employees weren't expected to be on standby but "it may be necessary" in the event of an emergency. In April 2015, the university's manager of maintenance and plumbing asked for volunteers to be added to an on-call list. Call- outs to those on the list would be "accepted or declined at the dis- cretion of the individual employee fielding the call" and those accept- ing calls would receive call-out pay. Both MacIntosh and Snow asked to be put on the list. The call-out roster included the stipulation that those on the list were "not being paid to be on standby so they are not required to respond." If someone on the list refused a call, the next person would be called. However, both Snow and MacIntosh believed that being on the call-out roster meant they had to be ready to re- turn to work and they would be paid standby pay for their sched- uled roster hours. Snow received several calls over the next three months and answered every one. He claimed and received standby pay for May, June, and July, but in August his claim was denied by his supervi- sor. He filed a grievance. MacIntosh also filed a griev- ance, arguing that the call-out roster was "in reality a standby list" because they were "read- ily available to return to work af- ter hours in the event they were called in for an emergency." The arbitrator noted that there was evidence both Snow and Ma- cIntosh received standby pay dur- ing certain periods of time, but these were short periods over the course of their service. It was only the controls group that had a con- sistent standby list. The arbitrator found that the collective agreement clearly set out call-out pay and standby pay as "two separate items under two separate headings." The standby pay provision even stated that employees weren't expected to be on standby and it would be rare occasions in which some might be placed in that position. It would be a stretch to infer that his applied to all em- ployees appearing on a rotating call schedule, the arbitrator said. The arbitrator also found that the manager clearly set out the intent and purpose of the call-out roster — it was not intended to be a mandatory call-out list and it stated that "call-outs will be ac- cepted or declined at the discre- tion of the individual employee." "The evidence supports the conclusion that the main intent of the roster was to provide an after- hours schedule, on a quarterly or so basis, listing those volunteer O&M employees by occupation who were designated to be on call-out and those on standby," said the arbitrator in dismissing the grievances. Reference: The Governors of the University of Calgary and Alberta Union of Provincial Employees, Local 052. John Moreau — chair. Thomas Ross for the employer. Liane Lawford, Karen Thibault for the employees. 2020 CanLII 21328 (Alta. Arb.) Voluntary list gave employees option to refuse calls Union concerned over potential violence in field work < Strike out pg. 1 five particular threatening inci- dents. In February 2012, a female SEO in Sudbury investigated a rural property responsible for nutrient contamination of a lake. Three men and a woman encir- cled her, cutting her off from her vehicle. After some discussion, she managed to get back to her vehicle. In April 2012 a male SEO in the York-Durham region was tasked with serving two peo- ple with a cost-recovery order. When the SEO and his partner arrived, one of the individuals yelled at them to leave. The sec- ond individual came to the door, shouted at them and pushed the SEO off the porch. As they tried to leave, the first individual struck the vehicle. In July 2012 a female SEO in London investigated complaints that a farmer had a pile of com- post containing garbage. While she was investigating, two men pulled up in a car and started yelling at her that she was tres- passing. One man — who was the property owner — grabbed her by the wrist and bent her thumb. She tried to get to her vehicle, but the man grabbed her ponytail and pulled her down. The man was charged with assault. In May 2014 two male SEOs were assigned to inspect a Ham- ilton wrecking yard whose owner had a history of being uncoop- erative. The owner began yelling and using profanity while punch- ing his palm two inches from one SEO's face. When they told him of the inspection, the owner yelled that they should leave. He followed them to their vehicle, and they called police. In June 2014, a male SEO visited a property in Welland, Ont. that was linked to a failure to comply with environmen- tal regulations. While he was observing, four men drove up in a pickup truck — one carry- ing a hunting rifle. They said they wanted to see why he was parked there as there had been illegal activity in the area. When the SEO identified him- self, they drove off. The union filed a group griev- ance claiming the ministry failed to provide reasonable safety pre- cautions for SEOs performing field work, contravening the col- lective agreement and the On- tario Occupational Health and Safety Act (OHSA). The arbitrator noted that SEOs had the option of disengag- ing or postponing an assignment if they were concerned about their personal safety. Ministry policy allowed them to research a situation and arrange addition- al precautions, and there was no evidence of any SEO being disci- plined for delaying or refusing an assignment. The arbitrator also pointed out that ministry policy stated that "if you are told to leave, leave." In the incidents presented by the union, the SEOs didn't fol- low that rule and that led to an escalation. The arbitrator found that the five incidents mostly involved verbal abuse, which was on the lower end of risk. Of the two that involved physical assault, the pushing off the porch was rela- tively minor, and the London in- cident didn't escalate to physical assault until the SEO refused to disengage. The arbitrator found that the ministry's safety precautions met the requirements of the collective agreement and the OHSA. "The prospect of encounter- ing unknown risk and inability to disengage, the primary argu- ments of the union, did not ex- pose SEOs to unreasonable risk, if they had followed employer policy and directives and taken advantage of the safety precau- tions made available to them," said the arbitrator in dismissing the grievance. Reference: OPSEU and Ontario (Ministry of the Environment, Conservation and Parks) (Tomlinson). Nimal Dissanayake — arbitrator. Kevin Dorgan, Susan Munn for the employer. Tim Hannigan for the employee. March 2, 2020. 2020 CarswellOnt 3381

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