GSB# 2018-1990

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

The Association of Management, Administrative and Professional Crown Employees of Ontario (Brar et al)

Association

• and –

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE ASSOCIATION

Marisa Pollock Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 7, 9; June 14; July 3; November 14, 2019 and March 16, 2020 (by teleconference)

Decision

Introduction

1The grievors are Senior Investigators employed by the Ministry of Finance. Their duties require them to be available 24 hours a day, seven days a week, for periods of one week, every 15 weeks, in order to respond to calls from police officers conducting investigations under the Tobacco Tax Act. The Association claims on behalf of the grievors that the time that they are required to be available outside of normal work hours should be compensated as overtime work under the terms of the Collective Agreement. The Employer’s position is that being on call in this way is not the same thing as being at work, and that it would be inconsistent with the terms of the Agreement to pay the grievors as though it were.

Evidence

2The Parties provided the following Partial Agreed Statement of Fact:

BACKGROUND FACTS

Senior Investigator Duties and Responsibilities – Tobacco Investigations Section

1. There are currently eight Sr. Investigators working in the tobacco investigations role within the MOF’s Tax Advisory & Compliance Branch, Investigations Section.

2. A key responsibility of the Sr. Investigator role in the Investigations Section is to provide “guidance and supervision to investigators and staff in the office and on-site in the field”.

3. “Field work” can account for a large proportion of the Sr. Investigators’ work. Sr. Investigator tasks in the field include conducting surveillance or executing search warrants and providing guidance to OPSEU-represented Investigators during those operations.

4. In the field, Sr. Investigators often work with police, confiscating illegal tobacco inventory. For example, Sr. Investigators are designated under section 24 of the Tobacco Tax Act (“TTA”) “as a person authorized” by the Minister to detain vehicles and conduct searches if there are reasonable and probable grounds for TTA contraventions. Sr. Investigators can also so authorize the police to take such actions related to contraband tobacco (“Warrantless Vehicle Detentions/Searches”).

5. The Sr. Investigators’ work in the office accounts for between 50 percent and 75 percent of the Sr. Investigators’ work. Sr. Investigators plan surveillance operations, prepare reports, affidavits, search warrants and Crown briefs etc.

6. Sr. Investigators may also be called on to testify in Court although in-court time would constitute a small portion of their overall work, on average.

7. The Sr. Investigator position is rated as a Level 7, the second highest salary level in the AMAPCEO Bargaining Unit.

Managers, Investigations and Senior Managers

8. Sr. Investigators in Investigations Section report to one of four Managers, Investigations: Mr. Robert Hammond, Ms. Michelle Johnson, Mr. Jack Anthopoulos and Ms. Theresa Norris. These four Managers also manage the activities of the OPSEU-represented Investigators, in addition to the Sr. Investigators.

9. There are two Senior Managers: Ms. Berthy Franken, Senior Manager, Investigations, and Mr. Sid Ripley, Senior Manager, Forensics, Investigations.

10. These Managers and Senior Managers also have delegated TTA section 24 authorization powers, just like Sr. Investigators.

TOBACCO CALL LINE

Police Contact

11. In the course of his or her normal road-side duties, a police officer might come across tobacco contraband: for example, an officer sees unmarked and/or untaxed tobacco in a car during a traffic stop on Highway 401.

12. Since April 2014, the MOF Investigations Section has trained over 4,800 police officers about the TTA and the MOF’s enforcement activities related to illegal tobacco in Ontario. As part of this initiative, the MOF has distributed “Road Cards” to police officers for their reference. Card 1 states:

When conducting tobacco related seizures police may call: 1-800-656-8626 (enforcement calls only)

13. The Cards set out the procedures police regarding section 24 of the TTA. Card 11 states: “Officers must contact the Ministry of Finance, Investigations Section, at 1-800-656-8626, to be authorized for Warrantless Vehicle Detentions/Searches”.

14. The Cards also provide information for police if and when police make “plain view seizures”; e.g., setting out the police officer’s authority under the TTA (section 29 of the TTA) as well as the TTA’s charges (served as Part I or Part III offences under the TTA depending on the nature of the charge) and the Act’s corresponding fine amounts. The Cards indicate if a person claims to have any permits or authorizations allowing them to possess or transport tobacco, “contact the Ministry of Finance (MOF) Investigations Section at 1-800-656-8626 for assistance”. Under the heading “Plain View Seizures – Procedures”, the Cards also state that officers should contact the MOF’s Investigations Section at 1-800-656-8626 “if a Part III is issued, at your earliest convenience…”.

MNRF’s Provincial Communication Unit’s 1-800 Number

15. In the past, Senior Managers and Managers, Investigations (the “Managers”) carried a designated “Tobacco Pager” that police officers would call directly, leaving their call-back number. The Managers would carry a flip-phone to call the police officer back. Sr. Investigators began to share these responsibilities with the Managers in or around late 2009.

16. In or around 2011, the Managers and Sr. Investigators would carry both a “Tobacco Pager” and a designated “Tobacco Cellphone” that police officers could call directly. The Tobacco Cellphone was also used to call back the police officers who called and left number on the “Tobacco Pager”. The Pager number had been widely distributed. The Pager was eliminated in early 2014.

17. Effective April 1, 2015, the MOF set up the “1-800” call line (the 1-800-656-8626 number set out above) through the Ministry of Natural Resources and Forestry’s Provincial Communication Unit (“PCU”). The PCU operates 24 hours per day, seven days per week, 365 days per year.

18. As PCU employees are advised, the “PCU will receive call from RCMP, OPP or Municipal Police requiring authority to make a seizure under the Tobacco Tax Act” through the 1-800 number.

19. PCU employees are instructed to set up a conference call between the police officer and the MOF employee using the “Ministry of Finance 24/7 manned cell phone 1-289-404-3541”.

20. The MOF cell phone number (1-289-404-3541) is forwarded to the cell phone of the employee (Senior Manager, Manager and Sr. Investigators) scheduled to answer the police calls, if any, on a rotational basis. The MOF number is forwarded to each employee for one week at a time.

21. Manager Anthopoulos publishes the “tobacco cellphone coverage schedule” in six month “blocks” so that each employee knows his or her week in the rotation in advance.

22. Since there are currently 15 Senior Managers, Managers and Sr. Investigators, each employee is scheduled to be on the rotation once every 15 weeks; thus each employee, including each Sr. Investigator, is scheduled approximately four times per year.

23. If a Sr. Investigator is unavailable to cover on a rotation week, he or she is responsible for finding his or her replacement.

24. If the PCU calls the MOF cell phone number and gets no answer or “busy”, then the PCU is directed to call one of the seven Senior Managers/Managers at their cell phone numbers from a list updated regularly by the MOF managers themselves.

[footnotes omitted]

3In addition, I heard evidence regarding the duties and remuneration of Senior Investigators from three Senior Investigators - Mr. Jaswinder Brar, Mr. Greg Patterson, and Mr. Jason Noble - and from one of their Senior Managers, Ms. Berthy Franken.

4When a Senior Investigator receives a call from a police officer on the Tobacco Call Line, the officer may ask for authorization to search for and seize contraband, that is, untaxed tobacco. This occurs, for example, when the officer has pulled over the driver of a motor vehicle and the officer suspects that the vehicle contains contraband that this not in plain view. A Senior Investigator has delegated authority under Section 24 of the Tobacco Tax Act to authorize a search where there are reasonable and probable grounds to suspect a contravention of the Act. When such authorization is requested the Senior Investigator must obtain the relevant information from the officer, including the identity of the officer, the time and place of the stop, the vehicle description, the reasons for the stop, and information providing the basis for the search and seizure request. A Senior Investigator must make his or her own assessment of whether grounds for a search are present.

5A police officer may also call to request the assistance of a Senior Investigator in charging individuals with offenses under the Act, either following a search and seizure authorized under section 24, or following the seizure of alleged contraband tobacco that is in plain view of the officer, under section 29 of the Act. Such advice may concern whether to issue a Certificate of Offence (in cases of lesser quantities of contraband) or a Provincial Offenses Act Summons to the driver, and on how to word each document, referencing the relevant provisions of the Act. The Senior Investigator will ask the officer questions to determine whether there is any untaxed tobacco, and if so, its type and quantity. This information determines the appropriate charge under the Act. If the officer issues a Certificate of Offense, the Senior Investigator may advise on the applicable fine.

6In the course of a call, a Senior Investigator may also be called upon to verify whether the driver of a vehicle has a Ministry of Finance permit authorizing the transportation of the tobacco in question.

7Following the completion of such a call, a Senior Investigator is required to complete a “Calls from Police Agencies” form recording detailed information concerning the call. Some Senior Investigators also keep a notebook in which they record additional information. A Senior Investigator may be required later to testify at the prosecution of an offense under the Act about the basis for having authorized a search and seizure.

8Responding to a call on the Tobacco Call Line thus requires a Senior Investigator to obtain and evaluate detailed information from the officer making the call, and to interpret and apply provisions of the Tobacco Tax Act. It also requires the Senior Investigator to record specific and detailed information that may later be used in court proceedings.

9Each of the grievors keeps with him, at all times when on Tobacco Call Line duty, a set of forms, policy and procedure documents, statutory excerpts and contact information, as an information resource to assist in responding to calls. Mr. Brar provided a copy of his set of documents, which he keeps in a legal-size folder.

10The Tobacco Call Line is supported by the Rogers cellphone network. The grievors indicated that coverage was generally good in the Toronto area. Mr. Patterson stated that he would sometimes lose coverage between Sudbury and Sault Ste. Marie, and that his phone did not work well on the north shore of Lake Superior, or north of Kingston towards Highway 7. Ms. Franken said that she had never had a problem with cellular service coverage, including in Thunder Bay, and at a cottage near Bancroft.

11Being on Tobacco Call Line duty entails certain restrictions on what a Senior Investigator can do. Mr. Brar testified that when he was on duty, he had to be prepared to stop his vehicle at any time to take a call. He said that if he is with his family, he generally steps out of the car because confidential information is often discussed during the call. He said that if he is travelling on Highway 401 he will get his wife to drive because it can be very dangerous to stop. He indicated that he could not travel to the United States while on duty because he is not allowed to take the phone into the United States and to incur US roaming charges. He said that he could not go to his brother’s cottage because it is remote, and the cellular service to his Tobacco Call Line phone is not reliable there. He said that he cannot go alone to a shopping mall with his children because he could not keep adequate control of them while taking a call. He cannot drink alcohol during a week in which he is on call. He could not go to a place where he had to have his phone off, such as a movie theater. He did not go to church because, even with its ringer off and the phone set to vibrate, it would not be proper there to have his phone buzzing during a service. He could not attend community dinners at his church because there is no cellular coverage in the basement of his church. For the same reason, he could not go to the pool where his children swim, or to some stores. Calls at night would interrupt his sleep, sometimes repeatedly if police were dealing with other criminal matters and kept calling back sporadically.

12Similarly, Mr. Patterson testified that when he was on Tobacco Call Line duty he would ensure that he always had his notebook and Call from Police Agencies Forms with him, along with relevant sections of the Tobacco Tax Act. He would make sure that he was not on vacation, and that wherever he was his phone would work. He would not drink alcohol. He would ensure that he could quickly get somewhere where others could not overhear him, and where he could take notes. He would be prepared in these ways to take calls during the night and on weekends.

13Mr. Noble said that when he is on Tobacco Line duty his responsibilities are always on his mind. He makes sure to take his phone with him whenever he goes to the washroom or takes a shower. He said that he also makes sure that he has his set of documents at all times. He said that he could not go to the beach because he could not take his phone into the water. He said that he had to be careful about driving on highways like Highway 400 where it would be difficult to take a call. He said that calls that came in the middle of the night could make it difficult to get up in the morning. He stated that when his children were young there was no way to deal with a call and watch his children at the same time, so he had to be careful about which public places he would take them to. He testified that he had to think ahead about where he was going and what he would be doing, so as to ensure that he would be able to talk privately on the phone. He said that he could not go to places like Canada’s Wonderland with his documents. He stated that he found Tobacco Call Line duty to be a hindrance.

14Ms. Franken testified that when she is on Tobacco Call Line duty, she will take her cell phone, a pen and a Call from Police Agencies form when she goes running, placing these items in her hydration belt. She said that when she looks after her grandchildren in her home, she ensures that the phone is within earshot, and fills out the required form on the kitchen counter. If a call comes in when she is driving, she puts her phone on hands-free, explains to the officer that she is driving, and asks for a minute to pull over. She then pulls over when it is safe and responds to the call. She puts the Tobacco Call Line phone on vibrate when she attends church but has not had a call there. She has attended birthday parties and a wedding reception with the phone. She moves to a quieter area to take calls in such situations. She always carries the Call from Police Agencies form with her because she is a backup in the event that a Senior Investigator is unable to respond to a call. She agreed that while on Tobacco Call Line duty one should not drink. She added that “I don’t stop living while I am on the phone. I see it as part of my job. If I miss a call, I know there is a list of people that back me up.”

15If a Senior Investigator is unable to fulfil Tobacco Call Line Duties, they must first try to find someone to switch weeks with them. If they are not able to do so, they must ask a manager. Ms. Franken testified that managers were ultimately responsible for continuity of operations, so that if no one else was available, a manager would have to step in. Ms. Franken said that members of the Senior Investigator group do not look to get out their obligations, and that they do not miss a lot of calls. She indicated that their availability while on the Tobacco Call Line rotation has never been a problem.

16Senior Investigators keep track of their time worked, including overtime, using a docketing system. In 2018, Mr. Brar recorded 13.5 hours taking calls and doing follow-up paperwork on the Tobacco Call Line. That year Mr. Patterson recorded 17.5 hours doing such work. All but one of his calls came during core working hours on weekdays. Mr. Noble docketed 15.25 hours to the Tobacco Call Line that year. None of the calls in question were on the weekend.

17Ms. Franken presented statistics compiled concerning the calls taken by managers between April of 2018 and April of 2019. Those data indicate that roughly 75% of calls took place within normal working hours. The remainder happened weekday evenings or during the weekend. While there is no statistical evidence concerning when calls taken by bargaining unit members tend to arrive, nothing in the evidence suggests that those calls would tend to arrive at different times. As noted above, both managers and Senior Investigators complete rotations on the same Tobacco Call Line schedule. They accept calls from the same sources concerning the same subjects during their rotations.

18The grievors estimated that calls typically took about 10 minutes to complete. Filling out forms and writing down notes could then take a few more minutes. Sometimes calls can take quite a bit longer though. Mr. Brar mentioned a recent call that was half an hour long, and a call in 2019 that was an hour long. The statistics regarding calls taken by managers presented by Ms. Franken indicate that the length of calls ranged between 2 and 47 minutes, with a majority taking 10 minutes or less.

19The Collective Agreement stipulates, and the parties agree that the number of normal work hours is 36.25 per week. Hours in addition to normal hours up to 44 hours per week are remunerated at straight time rates. Hours above 44 hours per week are remunerated at time and a half. Overtime remuneration can be taken as pay or as compensating time off. Senior Investigators earn overtime remuneration for time spent responding to Tobacco Call Line calls outside of normal working hours.

20Senior Investigator performance evaluations have included assessment of their performance of Tobacco Call Line duties since 2013. Merit assessments through these evaluations determine access to merit pay increases, which, in turn, affects the value of a Senior Investigator’s pension.

Arguments of the Parties

Association Arguments

21The Association submits that the issue in this case is straightforward: whether the time that Senior Investigations must be available to take Tobacco Call Line calls is “work” for the purposes of Article 46 of the Collective Agreement. Article 46 requires that work outside of normal working hours be remunerated at overtime rates. The Association maintains that Article 46 is clear on its face and does not require reference to any other document to determine the meaning of “work” for its purposes. Arbitrators have over the years, the Association contends, interpreted the term “work” according to the principle that when employees are restricted in their use of time, that is, not free to use their time as they wish, they are working. The Association refers me to the following cases for that proposition: Town of Midland and Ontario Public Service Employees Union, Local 328, 1987 CanLII 8845 (ON LA), 1987 CarswellOnt 4165; Re International Nickel Company of Canada Ltd and Canadian Guards Association, Local 105, 1977 CanLII 2972 (ON LA), 1977 CarswellOnt 1851 (H.D. Brown); Re Allied Chemical Canada, Ltd. and United Automobile Workers, Local 89, 1975 CarswellOnt 1425 (O’Shea); Re Steinberg Inc. and United Food and Commercial Workers Union, Local 486, 1985CarswellOnt 2634 (Foisy); Re Hamilton Street Railways Co. and Amalgamated Transit Union, Local 107, 1981 CarswellOnt 1902 (Shime); Re Dominion Stores Ltd. and Retail, Wholesale and Department Store Union, Local 1065, 1978 CarswellNB 401 (Teed). It maintains that while these awards are distinguishable on their facts, the principles that they establish clearly govern the situation at hand.

22The Association emphasizes that when Senior Investigators are on Tobacco Call Line duty they are restricted in what they can do: they cannot go to any place where there is concern about reception, they cannot drink, are not free to do many things that they would normally do, and have to be aware of many things that they would otherwise not have to be aware of. The Association argues that the restrictions entailed by Tobacco Call Line duty are not de minimis, but rather are impositions. Senior Investigators on Tobacco Call Line duty are not free to use their time as they wish, and therefore, the Association submits, they are working. In effect, the Association submits, in 2009 the Employer assigned new work to the Senior Investigators when it placed them on the Tobacco Call Line rotation. The Association insists that restrictions on one’s time entailed by Tobacco Call Line duty have to be something under the Collective Agreement, and the only thing that they can be is work. What flows from that, maintains the Association, is that time on Tobacco Call Line duty must be paid according to the terms of Article 46.

23In the alternative, the Association contends, the grievors should be paid in accordance the principle of quantum meruit, which recognizes that a party getting the benefit of work should be required to provide compensation for it: Re Ontario Hydro and Canadian Union of Public Employees, Local 1000, 1983 CanLII 4832 (ON LA), 11 L.A.C. (3d) 404 (Shime).

Employer arguments

24The Employer submits that the Association seeks to give the term “work” a meaning that it cannot possibly bear. It maintains that monetary benefits require specific collective agreement language: Ontario Public Service Employees Union and the Crown in Right of Ontario (Ministry of Government Services) (Grievances of Vitorino et al), 2010 CarswellOnt 11597 (Abramsky) at para 11. The Employer contends that for the purposes of the overtime provisions of Article 46, what counts is actual work, and not simply time when one must be available for work. In support of this argument, it points to the legal context of Article 46, the factual context of this case, and arbitral jurisprudence. With respect to the importance in general of the context of a collective bargaining relationship to interpreting collective agreement terms, the Employer refers me to Air Canada v. Air Canada Pilots Assn, 2012 CarswellOnt 4390 (Burkett), at para 39.

25To understand the meaning of the term “work” in Article 46, the Employer submits, I should begin by examining how the Article provides for overtime pay. This article, contends the Employer, contains the sum total of what the Association has negotiated with respect to compensation for overtime work. The Employer construes Article 46 as follows: Article 46.1, recognizing that hours of work for bargaining unit employees are those set out in Section 3(1)(d) of the Management Board of Cabinet Compensation Directive, August 20, 2007, implies that employees may be assigned to work overtime; Article 46.2 then sets out in detail how overtime work will be compensated; Article 46.2.3 stipulates the only time that employees get some compensation when they are not actually working, by rounding amounts of time worked in excess of fifteen minutes to the next half hour; and Article 46.4 clarifies that “[a]n employee shall not be considered to be working overtime merely because they are carrying a computer, cell phone or blackberry.” In light of these terms, the Employer submits, only once a Senior Investigator takes a call outside of normal working hours is he or she entitled to get paid overtime. The Employer maintains that this understanding of Article 46 is reflected in the Association’s own Fact Sheet, entitled “Overtime and Hours of Work”.

26The Employer argues that Article 46 was negotiated in a context in which on-call or stand-by pay are known forms of compensation. The Employer points me to Mitchnick and Etherington, Labour Arbitration in Canada (Third Edition) at pages 640 and 641, discussing on-call and stand-by pay, and noting that arbitrators have generally required that such pay be expressly negotiated before awarding it. The Employer also points to the Management Board of Cabinet Compensation Directive of August 20, 2007 as indicative of the context in which the Collective Agreement was negotiated, referring me to Re Ann Martin and the Crown in Right of Ontario (Ministry of Community and Social Services), GSB#188/78, October 22, 1980 (Kennedy). The Employer emphasizes that: (1) the Directive was in place before the current Collective Agreement and before Senior Investigators were assigned Tobacco Call Line duties; (2) the Directive continued terms established in an earlier regulation, Regulation 977, that had been in effect since 1993; (3) the Directive defines in paragraphs 6(1) and 22(2) when an employee is considered to be on call or on stand-by; (4) the Directive provides in paragraph 11(6) that the employee classification that includes the grievors is not considered to be working overtime when on call, on stand-by or travelling; and (5) the Directive provides in paragraphs 21 and 22 pay for on call or stand-by duty, but those paragraphs do not apply to the employee classification that includes the grievors. The Employer submits that notwithstanding this context, and unlike the Ontario Public Service Employees Union, the Association has not negotiated clauses providing for on call or stand-by pay.

27The Employer also emphasizes that the grievors are claiming overtime pay that would amount to in excess of $10,000 or each of the weeks during which they are on Tobacco Call Line duty. The Employer notes that while some employee classifications are entitled under the Directive to stand-by pay at one and a half times their basic hourly rate, stand-by is defined as availability for immediate return to an employee’s place of work: Ontario Public Service Employees Union (Couture et al) and the Crown in Right of Ontario (Ministry of Government Services), GSB#2008-3329, March 23, 2010 (Dissanayake), whereas the grievors in this case could be anywhere in Ontario. The Employer submits that the degree of hindrance that the grievors experience is similar to that imposed by on call duty, which attracts much lower compensation under the Directive. The Employer submits that in this context it would be absurd to merge overtime pay and on call duty.

28Finally, the Employer maintains that arbitrators have long distinguished between being on-call or on stand-by on the one hand, and working on the other: Mitchnick and Etherington, Labour Arbitration in Canada, Third Edition, at 640-641; Re Maple Leaf Mills Inc. and United Food and Commercial Workers Union, Local 401, 1995 CarswellAlta 1474 (Sims); Re Leco Industries Ltd. and Oil, Chemical and Atomic Workers International Union, Local 9-819, 1980 CarswellOnt 2155 (Brunner); Bell v. LYS Solutions Ltd., 2012CarswellNat 3929 (Bourassa); Re Winnipeg Regional Health Authority and CUPE, Local 1550, 2015 CarswellMan 315 (Gibson); Re Association of Justice Counsel and Treasury Board, 2011 PSLRB 135 (Pineau). The Employer submits that these distinctions must be made in the present context. It maintains that arbitrators have consistently held that stand-by pay must be expressly provided in a collective agreement, that in the absence of such a provision an employer can require an employee to carry a pager or cell phone without paying compensation, and that an award to the contrary would amount to an amendment of the Collective Agreement. The Employer submits that the Association’s cases are not applicable because they deal with situations in which there was a much higher degree of restriction and confinement of employees.

29In conclusion, the Employer submits that it was entitled to assign duties such as the Tobacco Call Line rotation to Senior Investigators under Article 3.1 of the Collective Agreement, and that the grievors are receiving all of the compensation to which they are entitled under the Agreement.

Association Reply

30The Association responds that the provisions of the Directive to which the Employer refers are not incorporated into the Collective Agreement and cannot amend it. It insists that its bargaining agency be respected. It warns that Directive provisions should be approached with caution, since it has no say over their terms.

31The Association contends that there is no evidence to establish the relevance of the Directive or its interaction with the Collective Agreement. Specifically, the Association says that the Employer has simply asserted without evidence that: (1) the Association negotiated the Agreement with full knowledge of the Directive’s contents, and in particular of provisions saying that on call does not mean overtime work; (2) there is a longstanding practice of not paying overtime for duties such as those performed by Senior Investigators on Tobacco Call Line duty; (3) the Association chose not to expend bargaining capital to change that practice; and (4) during the 1990s terms and conditions were similar to those provided in the Directive. The Association maintains that without such evidence the Directive is just a unilaterally promulgated Employer document that should not be considered in this case.

32For similar reasons, the Association contends, the fact that OPSEU has negotiated on call pay provisions means nothing in this case, because there is simply no evidence concerning collective bargaining between the parties, or of bargaining between OPSEU and the Employer.

33The Association also submits that in any event the definition of “on call” found in the Directive does not fit the facts of this case, since it speaks only of remaining reasonably available for work, whereas in this case the grievors were sufficiently hindered by their duties as to be working. The Association maintains that, because the Directive is unilaterally promulgated by the Employer, if it is to be interpreted it should be interpreted in accordance with the contra proferentem rule, so that any ambiguity is resolved against the interests the Employer: Re Expertech Network Installation Inc. and Unifor, 2014 CanLii 29951 (Stout).

34In response to the Employer’s interpretation of Article 46.4, the Association points out that it simply says that time during which an employee is required to carry a communication device will not be considered overtime merely because the employee is doing so. This indicates, according to the Association, that if an employee is doing more than carrying such a device, the employee can get overtime.

35In response to the Employer’s argument that monetary items need to be clearly negotiated, the Association maintains that this principle is of no application here because the parties have already negotiated an overtime clause that governs. The Association says that one can no more assume that it was incumbent on it to negotiate a special provision providing pay for duties such as those of Senior Investigators on Tobacco Call Line rotations than one can assume that the Employer should have negotiated its way out of paying overtime.

36The Association submits that the Maple Leaf Mills case should be distinguished because it deals with a collective agreement in which the parties had negotiated for call in pay but not stand-by pay, so the issue was simply whether the former included the latter. In this case, the Association submits, the parties have not addressed the issue of whether employees should be given less than overtime for certain types of work.

37Finally, the Association maintains that the Association of Justice Counsel decision also offers no guidance, as its ruling was based on estoppel, an issue not raised in this case.

Decision

38The grievance raises two issues: first, whether complying with duties to be available outside of normal working hours for the Tobacco Call Line is work within the meaning of Article 46 of the Agreement; and second, whether, in the alternative, it should be compensated on a quantum meruit basis. There is no claim before me that the Employer could not assign such duties. Nor is there any dispute that time spent actually responding to such calls outside of normal working hours is overtime work, or that the grievors have been appropriately compensated for it.

39The evidence in this case establishes that Tobacco Call Line duties hinder Senior Investigators in their use of personal time, in numerous ways. To perform their duties, they must be available to consider fully and attentively requests from police officers for authorization to search and seize contraband tobacco, and/or to assist in charging individuals with offenses under the Tobacco Tax Act. These are serious matters affecting the administration of justice. The evidence indicates that these duties require that Senior Investigators not consume potentially impairing substances, and ensure that they are able to access, on short notice, a location sufficiently private that they will not be overheard, and in which they will be able to consider requests for assistance free of distraction. Moreover, the evidence indicates that during their rotations Senior Investigators are expected to ensure that as much as possible they are available to respond to such calls 24 hours a day, seven days a week. While they have managers who can cover for them if they are unable to take a call, it would appear that in practice this is seldom required. The kinds of restriction on their freedom that the grievors described follow directly from this set of responsibilities: they cannot drink, they cannot travel outside of cell phone range, they need to ensure that they can free themselves on short notice from child care responsibilities for constant supervision of children, they need to ensure that they can sense a phone ring or vibration so that they can respond promptly, and they need to ensure that they can leave a highway on which they are driving or a loud social event quickly in order to get to a private place free of distractions.

40Within these restrictions they nonetheless remain free to carry on with their personal lives. As the Employer indicated, if they can hear or sense the vibration from their phone and access a place where they will not be listened to or distracted, they can travel, participate in sports like running, or volleyball, or attend a social event. While the cell phone coverage of the Tobacco Call Line may not be universal, the evidence indicates that it is extensive within Ontario.

41Article 46 provides as follows:

ARTICLE 46 -HOURS OF WORK

46.1 It is recognized by the parties that the hours of work for employees in the AMAPCEO unit are that which is set out in Section 3(1)(d) of the Management Board of Cabinet Compensation Directive, August 20, 2007, made under the Public Service of Ontario Act, 2006.

46.2.1 Where the Employer authorizes an employee to work in excess of 7.25 hours on a regularly scheduled work day, the employee shall receive:

compensating leave of one (1) hour for each hour worked between 36.25 hours and 44 hours (inclusive) per work week, in respect of the total hours worked during the week on regularly scheduled work days; and

compensating leave of one and one-half (1.5) hours for each hour worked in excess of 44 hours per work week, in respect of the total hours worked during the week on regularly scheduled work days.

46.2.2. Where the Employer authorizes an employee to work on his or her day off, the employee shall receive compensating leave of one and one-half (1.5) hours for each hour worked.

46.2.3. For the purposes of calculating an employee’s entitlement, a period worked in excess of fifteen (15) minutes will be rounded to the next half hour.

46.3.1. Where an employee works excess hours in accordance with Article 46.2.1, the employee shall accumulate compensating leave for such excess hours unless the employee requests, at the time the excess hours are worked, to be provided with pay-in-lieu of compensating leave. Where an employee requests pay-in-lieu of compensating leave, the Employer will not unreasonably withhold agreement for such payment. Compensating leave shall be taken at a time mutually agreed upon. When leave is requested, the Employer will not unreasonably withhold such agreement for such leave. When pay in lieu of compensating leave is requested, payment, calculated at the rates in place when the compensating leave was earned, shall be made within two (2) months of the pay period within which the excess hours were worked.

46.3.2. Where at the end of the calendar year an employee has remaining accumulated compensating leave, the employee and manager shall endeavour to agree on the scheduling of such compensating leave in an effort to utilize the compensating leave by June 30, and neither the employer nor employee will unreasonably withhold agreement. Failing agreement, the Employer shall reasonably determine the time of the compensating leave.

46.3.3. Compensating leave accumulated in a calendar year which is not used before June 30 of the following year, shall be paid, on a lump sum basis, at the rate it was earned (annual salary divided by 1891). On termination of employment, or on an employee assuming a permanent position outside the bargaining unit, an employee who has not used all of his or her compensating leave earned under this article shall be paid, on a lump sum basis, for all remaining compensating leave hours. The lump sum payment will not increase the base salary for any purpose.

46.3.4. There shall be no duplication or pyramiding of any premium payments or compensating leave provided by the Collective Agreement.

46.4. An employee shall not be considered to be working overtime merely because they are carrying a pager, computer, cell phone or blackberry.

46.5. When regular part time employees, or fixed term employees who are scheduled to work less than 36.25 hours per week, work in excess of their scheduled number of hours, they shall be paid equal time up to 36.25 hours in a week. Thereafter, Article 46.2.1 applies. For clarity, Article 46.2.2 does not apply to hours worked on a day off which falls on a weekday, but does apply to hours worked on Saturdays and Sundays where they are not scheduled work days.

46.6. Recording: Compensating leave earned under this article will be added to the employee’s accumulated compensating leave bank within 6 (six) weeks of the pay period within which the employee had properly submitted the required documentation to his or her manager.

42While Article 46 deals at length with how compensation is payable to employees working in excess of 7.25 hours on a regularly scheduled work day, or on their day off, it has relatively little to say about what constitutes “work”. Only Article 46.4 speaks directly, but in a limited way, to this question. It stipulates that “merely… carrying a pager, computer, cell phone or blackberry” is not considered to be “working overtime”.

43I do not think that it makes sense to read this provision narrowly and technically as stipulating only that the act of carrying such a device is not “working overtime”. It must refer also to some duty to be reasonably available to answer calls on such devices. Otherwise it would serve little purpose. On the other hand, the phrase “merely… carrying” suggests that Article 46.4 may not speak to situations where employee duties of availability extend beyond waking hours, or entail restrictions on personal freedom beyond simply being reasonably available to respond to a call.

44The Association contends that Article 46.4 not only does not cover the situation at hand, but also implies that the grievors can get overtime pay for Tobacco Call Line duties outside of normal working hours, since they were doing more than merely carrying a communications device. This argument raises the question of what purpose Article 46.4 serves. Does it define which duties to be available to respond to a communications device amount to working overtime, and which do not? Or does it simply provide greater certainty that a particular subset those duties do not constitute overtime?

45To answer this question, in the absence of Collective Agreement terms more comprehensively indicating what is meant by “work” and “working” in Article 46, it is appropriate to turn to the context of arbitral jurisprudence within which the Agreement was negotiated, as both parties did in their arguments. I have carefully considered the authorities and arguments submitted by the Association and the Employer. Having done so, I have concluded that the weight of arbitral authority does not support the Association’s position.

46For decades, arbitrators have ruled that if a collective agreement does not specifically provide for stand-by pay, they will not order payment for stand-by duties, at least in the absence of supervening employment standards legislation, or employer directives heavily restricting employee freedom of movement, for example by telling employees to remain at a particular location. This means that in the absence of a stand-by pay clause, an employer can generally require employees to carry a pager or other device during off-duty hours as a means of facilitating a potential call-in, without having to pay them additional compensation for the inconvenience of having to re-arrange one’s life in order to be available to return to work immediately or on short notice: Mitchnick and Etherington, supra, at page 640. Such stand-by duties often entail greater restrictions on mobility than the duties imposed on the grievors, requiring availability to return to a specific location on short notice.

47The leading case dealing with the issue is Re Maple Leaf Mills, supra. That case dealt with a claim by two maintenance employees for pay for “authorized work performance in excess of the normal work week or normal work day” for all hours that they were required to remain on call outside of normal working hours. The employer had unilaterally imposed a requirement that the two most junior maintenance employees remain on call at all times, and had issued pagers to them, in response to what it viewed as a concerted refusal by maintenance employees to respond to emergency call-ins. The collective agreement contained a call-in pay provision providing compensation when an employee was actually called, but no clause requiring stand-by pay.

48As the Association notes, this was a case in which the parties had provided specifically for some types of payment, and Arbitrator Sims found that other types of payment not specifically provided for were logically excluded as a result. If that were the only basis for Arbitrator Sims’ decision I could accept the Association’s submission that it is distinguishable. But Arbitrator Sims went on to say at paragraphs 34 and 36 that:

“To the extent that cases referred to above deal with this situation, they uniformly hold that time spent on standby is not time worked. Carrying a pager may be an inconvenience, and remaining within the pager’s range is undoubtedly so, but this does not turn being on standby into working time as contemplated by the collective agreement… For this reason I must dismiss the grievance as filed.

… Had the company suggested a pager system… perhaps the Union could have negotiated a standby pay compensation system providing some recognition of the undoubted inconvenience a requirement to remain within a pager’s calling distance can cause. I have no power to impose such a provision because I am not free to amend the collective agreement.

49Arbitrator Sims based these observations on a review of jurisprudence extending back to the 1970s, considering most notably Leco Industries, supra, and Re Pembroke General Hospital and C.U.P.E. Loc 1502 (1974), 1974 CanLII 2322 (ON LA), 6, L.A.C. (2d) 149 (H.D. Brown). In Leco Industries maintenance employees in three classifications were periodically required to carry a “bell-boy” calling device. It had a range of up to 50 miles from the plant at which they worked. The devices enabled the employer to contact employees outside of their regularly scheduled hours, in case equipment and machinery needed emergency servicing. An employee contacted on the device was expected to forthwith contact his supervisor and give instructions as to how a particular problem should be dealt with. In most cases the employee would be required to attend personally at the plant. In that event, the employee received call-in pay. Employees generally carried the device for one week at a time, and restricted their activities accordingly. The grievance claimed, among other things, overtime pay for time spent carrying the “bell boy”. Arbitrator Brunner rejected that claim, finding that “an employee who is simply asked to carry the device, is not, until he receives a signal, called upon to perform work” within the meaning of the overtime provision of the collective agreement. Much like Article 46, that provision stated that “[a]n employee shall be paid at the rate of time and one half for all work performed in excess of the normal weekly hours of work.”

50In Pembroke General Hospital, Arbitrator Brown similarly declined to order compensation of the grievor, who was a radiology technician in the hospital required to be on stand-by at scheduled times for call-ins, and to keep the hospital posted of her whereabouts for that purpose. Arbitrator Brown declined to order compensation because the collective agreement did not provide employees compensation for time spent on stand-by duty, but only when they were called back to duty. This ruling implies that stand-by time is generally not work for the purposes of wage and hours provisions of a collective agreement, in the absence of express provisions making it so. In Maple Leaf Mills Arbitrator Sims understood this case to stand for the proposition that “time spent on stand-by is not time worked”.

51Recent decisions continue to apply Maple Leaf Mills. Winnipeg Regional Health Authority, supra, a 2015 award, dealt with a claim for compensation for the employer’s requirement that employees carry cell phones during paid breaks, so that they could be reached during that time. Arbitrator Gibson ruled as follows:

It is my determination that there is no requirement to make any additional payment to employees who are asked to carry a cell phone or pager during their paid rest periods as provided for in Article 1802. I agree with the weight of arbitral authority which holds that unless there is specific provision in the agreement for payment, an employee who is required to remain available is not working and will not be entitled to pay. Cases which concluded that payment is appropriate generally involved a directive not to leave the work area or unit, or otherwise to remain effectively under the employer’s control. The collective agreement in the instant case specifies that the rest period is “away from the work station”, and there was no evidence or argument that employees who carried a phone were restricted in their movements during those periods.

52In Association of Justice Counsel, supra, a 2011 decision, the employer required that all legal officers perform Friday night and weekend standby duty, on a rotational basis, two or three weekends per year. Legal officers on standby were required to remain available to prepare immediate responses to stay applications before the Federal Court, a task which could require that they report to their place of work within one hour of receiving a call. Stand-by duty thus restricted their ability to travel, to consume alcohol, and to participate in recreational activities like skiing. The Association brought a policy grievance seeking compensation for legal officers in connection with standby duties. Adjudicator Pineau held, citing and quoting from Maple Leaf Mills, that such duties did not give rise to payment obligations because “time spent on standby as claimed by the legal officers cannot be considered time worked”, and the provisions of the collective agreement were silent on the right to compensation for the inconvenience of standby duty.

53The awards cited by the Association do not contradict this line of authority. In each of those cases, the employer had imposed much more substantial restrictions on employee freedom of action and mobility than are ordinarily entailed by stand-by obligations, or by the obligations imposed on the grievors in connection with the Tobacco Call Line in this case. In International Nickel, security guards accepting an assignment to a mine during a strike were required to remain on company premises and were under the complete control of the company at all hours of every day, in addition to being subject to call at any time, including during normal sleep hours. In Allied Chemical employees were required to spend a substantial amount of time in an interview with management on the employer’s premises following the completion of a shift. In Steinberg Inc. employees were required to attend a gathering that was in significant part for the purpose of a video presentation and employer-led discussion, at the store where they worked, after normal working hours. In Hamilton Street Railway, Arbitrator Shime found that the grievors, who had been sent to a remote location to repair a bus, were entitled to be paid during the five hours that they slept in a motel because they were “subject to the direction of management and thus not free to engage in personal activities of their choice”. Arbitrator Shime noted that the fact that they had only five hours of sleep, and their immediate return to work once the parts to repair the bus had arrived demonstrated that the grievors were “subject to being called at all material times”, and thus that they were “on duty even when they slept” while waiting for the parts to arrive. The employees were thus in a location of the employer’s choosing and subject to the employer’s direction to immediately return to work at any time. In Town of Midland, the grievors were effectively confined to their vehicles (although they might get out and walk around) during their lunch breaks, as there were no restaurants near where they were required to take those breaks, and their homes were out of bounds as well. The principle enunciated in Town of Midland that employees are working when they are not free to use their time as they wish must understood in light of its factual context. The awards cited by the Association were rendered between 1975 and 1987. In my opinion the Association’s authorities cannot be read as contradicting Maple Leaf Mills.

54The weight of arbitral authority has thus, for decades, held that where employees have normal working hours, stand-by or on call obligations outside of those normal hours that leave employees with significant mobility and freedom to choose their activities do not in themselves constitute work for the purposes of overtime provisions in a collective agreement. Such duties do not attract compensation in the absence of express collective agreement terms or legislated employment standards providing it.

55There is no evidence or Agreement language indicating an intention of the parties to depart from the long-settled arbitral approach to compensation for stand-by or on call duties. I am of the view that that Article 46.4 is not intended to implicitly recognize a right to overtime pay for duties more extensive or intrusive than “merely… carrying” one of the communications devices that it lists. Article 46.4 simply says that a certain set of duties do not constitute “working overtime”. If the parties had intended that anything more than “merely” “carrying” one of the listed communication devices meant working overtime, it would have been easy enough to say so directly. A finding that an employer has agreed to provide a substantial money benefit should generally not be based on oblique inferences: OPSEU (Vitorino et al), supra, at para 11. In this case the evidence establishes that, consistent with the Employer’s calculations, the value of the benefit claimed is very substantial. In light of the longstanding trends in the arbitral jurisprudence canvassed above, it would be surprising if a benefit of this value were established simply by stipulating when it is not payable. In my view Article 46.4 does no more than provide greater certainty that certain duties to carry and respond to communication devices do not constitute working overtime.

56The Collective Agreement, understood in the context of arbitral jurisprudence, does not treat being available outside of normal working hours in accordance with the Tobacco Call Line duties of Senior Investigators as working overtime. The grievors’ Tobacco Call Line duties are not evidently more onerous than the stand-by or on call duties of the grievors in Maple Leaf Mills, Leco Industries, or Association of Justice Counsel. They do not effectively remove the grievors’ mobility or freedom to choose their activities in the ways evident in the cases cited to me by the Association. I therefore conclude that the duties of the grievors to be available for the Tobacco Call Line outside of normal working hours do not constitute “work” for the purposes of Article 46.

56In this context there is no scope to apply the principle of quantum meruit as requested by the Association. The quantum meruit principle, as set out in Ontario Hydro, supra, at page 410, finds an implied promise to pay wages for work where work is solicited without an express one. Its application depends on a finding that work has been performed. There is no authority before me for the proposition that on call or stand-by duties are work for the purpose of that principle. In Ontario Hydro, the quantum meruit principle was applied to provide compensation to a group of workers for performing more complex and difficult work duties than they normally performed, and that were normally performed by workers in a different, higher paid classification. The issues of whether those duties constituted work, or whether the principle should extend to duties that arbitrators have found not to be work in other contexts did not arise, and were therefore not considered. The application of the quantum meruit principle in this case would also be contrary to the direct implication of the weight of arbitral authority that, where an employer’s assignment of on call or stand-by duties of the kind at issue in this case is within its management rights, employees are required to undertake such duties without additional compensation unless their union negotiates terms specifically providing for it.

57In light of these considerations, I need not address the Employer’s submissions regarding the relationship between the contents of the Remuneration Directive and the Collective Agreement.

58The grievance is dismissed.