Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS February 15, 2016 was bargaining unit work subject to negotiation under the collective agreement. Before the current case could be determined, Hornung said his original "volunteers decision" must be interpreted accordingly. The employer said its interpre- tation of the initial decision would have huge implications, and would mean that any unorganized or un- structured employee referral ac- tivities — such as the friends and family referral program — would be subject to the provisions of the collective agreement. The union, the Telecommuni- cations Workers Union, said the arbitrator had no jurisdiction over this particular grievance whatso- ever. Regardless, Hornung said a clarification of his decision was in- deed warranted. In the initial regard, he said that "a declaration that the promotion and sale of Telus products and ser- vices, including the collection of sale referrals, at a Telus-organized event is bargaining unit work that attracts the obligation to pay wag- es and benefits under the collec- tive bargaining agreement." Therefore, Borden would be owed for the work he did on the marketing campaign in 2012. Hornung said the issue in this case in particular was whether the voluntary participation of Telus bargaining unit employees at the various community program events would be considered bar- gaining unit work. If it wasn't, the arbitrator would not have jurisdiction, but if it was, he would have, he said. Therefore, the volunteers deci- sion ultimately concluded that the marketing program was in fact a new referral program that repre- sented the first occasion in which a volunteer referral program ac- tually constituted bargaining unit work, subject to negotiation under the collective agreement. Therefore the work was com- pensable and Borden, according to Hornung's original decision, be- longed to the bargaining unit. Reference: Telus Communications Company and the Telecommunications Workers Union. Richard Hornung – arbitra- tor. Richard Edgar for the union, Alan Hamilton for the employer. Drivers required to pay for proof of qualification THE International Brotherhood of Electrical Workers (IBEW) Lo- cal 424 filed a grievance against Fisher Powerline Construction after the employer required work- ers to provide a summary of their driving record before commenc- ing employment. The summary — referred to as an abstract — is issued by the pro- vincial government in Alberta to confirm the employee in question has a valid driver's licence. The fee for obtaining an abstract is $25 and is paid for by employees. While the union acknowledged it was reasonable for the employer to require workers to provide an abstract as proof they are quali- fied to operate motor vehicles, it asserted employees should not be required to pay for the abstracts. The union called for reim- bursement for the costs incurred by members who have been dis- patched by the employer. The employer constructs and maintains power lines, under- ground power lines and electrical substations. In order to carry out this maintenance, Fisher operates about 70 service trucks, boom trucks, picker trucks and bucket trucks. In addition to requiring em- ployees to provide an abstract, the employer also requires workers to disclose their driving record. The employer's insurer stipu- lates that only workers with clean driving records will be hired. The insurer also inspects the employees' abstracts to ensure they meet insurance standards. The union argued the require- ment to pay for and provide the employer with an abstract is not addressed anywhere in the par- ties' collective agreement. All conditions of employment must be negotiated, the union argued, because while the cost of provid- ing an abstract to the employer is not onerous, it could lead to the employer unilaterally adding oth- er preconditions to employment that might be much more costly to union members. The employer, however, argued the ability to safely and legally drive its vehicles is an implied and reasonable precondition of em- ployment. Fisher Powerline further ar- gued that the requirement for workers to provide an abstract is a reasonable exercise of its manage- ment rights. Requirements reasonable Arbitrator Lyle Kanee found the employer's requirements were reasonable in the circumstances. "In this case, Fisher's insurer requires it to obtain abstracts from all potential employees and arranges for its broker to review the abstracts to ensure the driving records meet the insurer's stan- dards," Kanee said. "In these circumstances, it is reasonable to view possession of a valid driver's licencce and a sat- isfactory driving record as qualifi- cations to perform the work hired for, much like a trade credential. An abstract is simply the method by which workers prove they have the qualifications, much like a ticket confirms they have the training and skills to execute other work they are hired to perform." As a result, the grievance was denied. Reference: Fisher Powerline Construction and the International Brotherhood of Electrical Workers Local 424. Lyle Kanee — arbitrator. Damon S. Bailey for the employer, William J. Johnson for the union. Jan. 18, 2016. < Arbitration pg. 1 Construction workers responsible for providing driver's qualification prior to employment. Arbitrators determine whether they have jurisdiction over bargaining unit work dispute at Telus.

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