Re The Crown in right of Ontario (Ministry of Health) and Ontario Public Service Employees Union
[Indexed as: Ontario (Ministry of Health) and O.P.S.E.U. (Hinkley), Re] File Nos. 1212/95; 95E164-76 Ontario, Crown Employees Grievance Settlement Board, L. Mikus. November 6,1996. *
INDIVIDUAL GRIEVANCES concerning work scheduling on election day. Grievances dismissed.
J. Gilbert, for the union. P. Toop, for the employer.
- Received February 26, 1997.
AWARD
In June of 1995, thirteen Registered Nurses and Registered Practical nurses employed at the Lakehead Psychiatric Hospital filed identical grievances alleging that they were unjustly denied their legal allotted time off on election day. Their claim arises from the fact that, although they were all granted three hours off on June 8, 1995 to vote in the provincial election, the three hours were scheduled to include their one-hour lunch break. They ask that they be reimbursed for that hour.
JURISDICTION
At the commencement of the hearing the Employer raised an objection to the jurisdiction of this Board to hear the grievance on the grounds that the grievance does not allege a violation of the collective agreement. It does not involve a question of the interpretation, application or an alleged violation of any provision of the collective agreement but, instead, alleges a breach of the Election Act, R.S.O. 1990, c. E.6, as amended, which this Board does not have the jurisdiction to decide. The Employer took the position that, although arbitrators do have the power to interpret and apply employment-related statutes, the Election Act is not an employment-related statute. It is a quasi-criminal statute that allows for its own enforcement by way of summary conviction. It does not create any independent rights under the collective agreement, is not inconsistent with any provisions of the collective agreement and is not incorporated into the collective agreement by reference. It is a naked claim for
redress of an alleged breach of a statute and cannot be the basis for a grievance under the collective agreement. In support of its position, it referred the Board to the case of Re Ford Motor Co. of Canada Ltd. and C.A.W., Loc. 1520 (1992), 27L.A.C.(4th)257(E.E.Palmer). That case involved a claim for overtime because, in order to comply with the statutory obligation to allow employees time off to vote, the employer altered the work schedules so that one-half hour of scheduled overtime was eliminated. In considering the application of the provincial and federal Elections Acts to the issues before him, the arbitrator concluded, at page 264:
... I am of the opinion that this grievance should be dismissed. In this regard it is my view that legislation, such as the elections Acts here in issue can only be used by arbitrators in relation to the interpretation of the collective agreement in three situations: first, where it specifically is incorporated into a collective agreement: second, where it assists in the interpretation of unclear collective agreement language: and, third, where such legislation is in direct conflict with provisions of a collective agreement,
making these unlawful to enforce. Conversely, it is clear that such legislation cannot be used as the basis for rights enforced by collective agreement
arbitration: those must arise from the wording of the collective agreement
Thus, the basis of the right the union wishes enforced lies outside the collective agreement. This is precisely what an arbitrator cannot do and, hence, I must dismiss this grievance.
The Union took the position that these grievances are not merely claims under the Election Act for an alleged breach of that Act. The issue involves the right of an employer to dictate what
émployees are to do on their one-hour unpaid lunch period. The lunch periods are a right under the collective agreement and the grievors are entitled to seek redress under the collective agreement for a breach of that right.
The Union also submitted that the Ford Motor case (supra), is no longer applicable in Ontario. Subsection 48(12) of the Labour Relations Act, R.S.O. 1990, c. L.2, as amended by Bill 40 [now Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A], states:
Powers of arbitrators, chairs of arbitration boards, and arbitration boards 48(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,
(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.
To the extent that the Election Act affects the provisions of the collective agreement concerning unpaid lunch breaks, it is employment related and within the jurisdiction of this Board to deter-
mine. In support of its position, it referred the Board to the case of Re Calgary Board of Education and A.T.A. (Aizenman) (1994), 46
L.A.C. (4th) 353 (J. Moreau).
DECISION
The amendments to the Labour Relations Act were intended to give arbitrators and arbitration boards broad powers to deal with the issues before it/them. It expressly allows them to interpret and apply employment-related statutes to avoid multiplicity of hearings, inconsistent decisions, expense and delay. While the Election Act is not strictly speaking an employment-related statute, to the extent that the employer applies that Act in such a way that rights under a collective agreement are affected, an arbitrator has the obligation to interpret that Act and apply it in such a way that any conflict between it and the collective agreement are resolved in a final and binding manner.
In this case, the Employer scheduled the grievors' three-hour voting period to include their lunch period. The hours of work in the collective agreement provide for an unpaid lunch period during the shift. It is within my jurisdiction to determine, on the facts of this case, whether the Employer properly applied the Election Act when he included a one-hour unpaid lunch period in the three-hour voting period.
THE ISSUE
The parties were agreed that the issue before me is whether the requirement to allow three consecutive hours off on election day can include an employee's one-hour unpaid lunch period. That requires a determination of what "three consecutive hours" means within the context of the Election Act. The relevant provision of the Election Act reads as follows:
EMPLOYEES SERVING OR VOTING AT AN ELECTION
6(3) Every employee who is qualified to vote shall, while the polls are open on polling day at an election, have three consecutive hours for the purpose of voting and, if the hours of work of his or her employment do not allow for three consecutive hours, the employee may request that his or her employer allow such additional time for voting as may be necessary to provide those three consecutive hours and the employer shall grant the request.
(4) No employer shall make any deduction from the pay of any employee or impose upon or extract from the employee any penalty by reason of his or her absence from work during the consecutive hours that the employer is required to allow under subsection (3).
(5) Any time off for voting as provided in subsection (3) shall be granted at the time of day that best suits the convenience of the employer.
The Union took the position that the three consecutive hours in the Election Act are intended to allow an employee to vote. It was not intended that the three hours include an unpaid lunch period. The Ministry took the position that there is nothing in the Election Act that requires the employer to schedule those three consecutive hours during working hours. If these grievors had finished their shift at 4 p.m. or 5 p.m., the Employer would not have been obligated to give them any time off duty to vote. Because they worked from 7 a.m to 7 p.m., they were entitled to three consecutive hours during their shift to vote. Those three hours were not necessarily to be paid time and it was to be scheduled at the convenience of the Employer, as stipulated in the Act. The Election Act was drafted to ensure that all eligible voters have the opportunity to exercise their franchise and give effect to
their political views. The only obligation on the employer is to provide those three consecutive hours. Those hours can be scheduled at the beginning or end of the work day or during work hours. They can be paid or unpaid hours. Indeed, the Act specifically states that the scheduling of those three hours are to be at the convenience of the employer. In this case, the Employer was in the position of having to schedule time off to all of these grievors over one shift. He determined that the most convenient method of doing that was to schedule them in three-hour periods that included their lunch periods. According to the Act, he was entitled to do that. He was not obligated to schedule all of those hours during the grievors' working hours. For those reasons, the grievances are dismissed.