Canadian Labour Reporter

June 5, 2017

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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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS nurses who work on consecutive weekends were entitled to pre- mium pay on second consecutive and subsequent weekends, except where a nurse requested work, exchanged shifts, or the weekend shift was to make up for time off. The provision stated that a weekend off consisted of "56 con- secutive hours off work during the 64-hour period from 1500 hours Friday until 0700 hours Monday for regular tours of seven-and-a-half hours. Nurses working extended tours shall be scheduled off from 1900 Friday until 0700 Monday on their week- end off." The provision allowed nurses to work as late as 11 p.m. on a Friday, with the weekend being considered a weekend off if they worked no more before 7 a.m. Monday morning, thus avoiding the consecutive weekend pre- mium if they worked the previous weekend. However, the provision only al- lowed nurses on "extended tours" to work until 7 p.m. Friday before it was considered working on the weekend — meaning they had to have the entire 64-hour period off. There was also a provision for extended-tour nurses to work a two-day, two-night rotation that would allow for scheduling on three consecutive weekends without premium pay, as long as it was no more than that. In the spring of 2014, the la- bour and delivery unit — pri- marily an extended-tour unit — added a Friday evening seven- and-a-half-hour tour that some part-time nurses had to work right before their weekend off. The 56-hour rule was applied for weekend work, as was done in other units. Part-time nurses were used because full-time nurs- es in the unit were on the two-day, two-night extended tour and fell under the extended-tour week- end definition in the agreement, meaning no work after 7 p.m. Fri- day. The ONA filed a grievance re- lating to the weekend premium provision, arguing the definition of a weekend for extended-tour nurses was intended to apply to all nurses — both part-time and full-time — who voted to imple- ment such tours. And even though the new Fri- day evening tour was seven-and- a-half hours, it fell within the time period reserved only for extend- ed-tour hours. The part-time nurses in the la- bour and delivery unit who were assigned to the Friday evening tour should be subject to the sec- ond weekend definition outlined for extended tours — not working between 7 p.m. Friday and 7 a.m. Monday, said the union. The ONA also noted that part- time nurses were often called in to replace full-time nurses who were sick or on vacation, and they had to work the length of tour of the person they were replacing. Therefore, nurses who didn't exclusively work extended tours could still find themselves work- ing extended tours, said the ONA. Arbitrator Lorne Slotnick noted that the second definition of weekend for extended tours had no language that indicated it was applicable only to full-time nurses; nor was there any such language in the hours-of-work provision as a whole that differ- entiated full-time from part-time nurses, despite the fact "it would have been easy for the parties to state that had it been their mutual intention," said Slotnick. Slotnick found that the provi- sion's language was vague enough that it didn't really conform to either the hospital's or the ONA's interpretation. There was no indication that limiting the second definition to "nurses working extended tours" meant that it applied to nurses who worked only extended tours, or instead those working extend- ed tours the week in question. In the case of such ambiguity, past practice could often be used as an indicator of the parties' in- tentions, said Slotnick. In this case, the hospital ap- plied the second weekend defini- tion only to full-time nurses who were working exclusively or al- most exclusively extended tours. Part-time nurses worked Fri- day evening shifts to 11 p.m. in parts of the hospital other than the labour and delivery unit, and in these cases it was not consid- ered infringing on the nurses' weekend off — consistent with the first definition relating to 56 out of 64 hours off. Slotnick found that the evi- dence showed that when the sec- ond extended-tour definition of weekend was added to the col- lective agreement in 2011, the union didn't do anything, wheth- er grieving for the weekend pre- mium or advising employees to claim it when they worked the late Friday shift. "I find it more probable than not that the union was aware of the employer's practice, ac- quiesced in it, and pursued the grievances because the part-time nurses in the labour and delivery unit were upset when the Friday evening shift was introduced in their area, feeling it was unneces- sary," said Slotnick. "When the shift was intro- duced, the hospital simply im- plemented in the labour and de- livery unit the same rules as had existed throughout the hospital since the start of the collective agreement. The shift was new in the labour and delivery unit, but it was not new in the hospital, and the union had not disputed the hospital's practice with respect to that shift." Slotnick agreed with the ONA that there was "a blurry line" be- tween full-time nurses in the la- bour and delivery unit only work- ing extended tours and those who combine regular and extended tours, but noted this should be addressed in future collective bargaining to clarify the collective agreement's language. The grievance was dismissed, leaving part-time nurses on the Friday evening shift in the labour and delivery unit ineligible for the consecutive weekend premium. For more information see: • Pembroke Regional Hospital and ONA (Consecutive Week- end Premium), Re, 2016 Car- swellOnt 19526 (Ont. Arb.). < Late shift pg. 1 'Blurry line' between nurses in different units: Arbitrator Photo: Spotmatik Ltd (Shutterstock)

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