GSB# 2021-2593

UNION# 2021-0526-0033

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McGann)

Union

• and -

The Crown in Right of Ontario (The Ministry of the Attorney General)

Employer

BEFORE

Ian Anderson

Arbitrator

FOR THE UNION

Erin Buchner Morrison Watts Counsel

FOR THE EMPLOYER

Katherine Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

August 10, 2023

Decision

1This is a referral of a grievance under Article 22.16.1 of the Central Collective Agreement between the parties. Article 22.16.1 provides for the resolution of grievances “in an expeditious and informal manner”. The mediator/arbitrator is to assist the parties in attempting to settle the matter. Should efforts be unsuccessful, the mediator/arbitrator is to determine the grievance by arbitration. In doing so, Article 22.16.1 provides the mediator/arbitrator may “limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate”. Decisions reached are without precedent unless the parties agree otherwise. Decisions are to be succinct and to be issued within five days of the completion of the proceedings unless the parties agree otherwise. Attempts to resolve these matters through mediation were unsuccessful. The parties agreed to waive the 5 day time limit.

2The grievance concerns conduct of a workplace inspection by the Grievor in his role as a member of the health and safety committee for the workplace, and more particularly payment for time to write a report after the inspection. The Employer authorized the Grievor to spend two hours writing the report during his regularly scheduled work time and paid him for those hours. The Grievor claims he is entitled to be paid for the full 5 hours which he asserts he required to write the report. The Grievor also claims half an hour for preparation time in advance of the inspection. The Employer notes that the Grievor only raised the issue of preparation of time after the inspection. In any event, the Employer asserts the Grievor is not entitled to be paid for the preparation time.

3The grievance arises from an inspection conducted on June 15, 2021. I understand there are other inspections for which the Grievor claims he is entitled to five hours to write the report and for which the Employer authorized him to spend only two hours of his regularly scheduled work time to do so. There is a dispute between the parties as to whether or not those other inspection reports are subsumed by this grievance or in any event whether a remedy can be granted pursuant to this grievance in relation to the writing of those reports. The parties have agreed to bifurcate that issue pending this decision in relation to the June 15, 2021 inspection. There is, however, no question that this is a longstanding dispute between the Grievor and the Employer.

4The longstanding nature of this dispute is reflected in a December 15, 2020 unilateral recommendation by the worker committee members of the joint health and safety committee and the Employer’s written response to it. The worker committee members recommended:

Worker committee members of the Health and Safety Committee requires [sic] time (at least 5 hours, not including breaks) during the day (between 8:30 a.m. and 4:45 p.m.) to do the physical inspection of at least one floor per day and to complete the report as per the Occupational Health and Safety Act [“OHSA”], sections 9(34) and 9(35) of the Act.

5The Employer’s response was as follows:

Consistent with longstanding past practice, as discussed at several H&S committee meetings, and as confirmed in many communications between the worker and management representatives of the H&S committee, H&S inspections will be completed as follows: jointly (to be clear this requires the presence of at least one worker member and at least one manager rep) at a mutually agreeable and pre-arranged time; for the purpose of inspecting one floor per month. If for any reason, an inspection cannot proceed in one month, two floors should be completed the following month. Up to 2 hours will be set aside for each inspection, with the worker and manager representative able to jointly agree to additional time as and when required. Following the completion of the inspection, at a mutually agreeable time, the worker member(s) will be provided up to 2 hours per inspection for the written report to be completed.

The recommendation proposed by the worker member provides worker committee members with an amount of time to complete each inspection that is inconsistent with past practice and with the experience of management committee members. Management remains willing to grant additional time for an inspection, should circumstances require it. The alleged hardship the worker member speaks of with regards to completing inspections after the conclusion of assigned duties on his work day is inaccurate, as management has often offered time for inspections where inspection would begin in the morning, prior to the beginning of assigned duties on that day. It is not accurate for the member to state that a minimum of 5 hours is needed to inspect a floor for a day.

For the above noted reasons, the Employer does not accept the recommendations.

6The worker members of the committee, of which as noted the Grievor is one, did not file a complaint with the Ministry of Labour seeking an order that the Employer’s response was not in compliance with the OHSA. Rather, the Grievor has simply continued to assert that he is entitled to 5 hours to write a report notwithstanding the Employer’s clear direction that only 2 hours are provided for that purpose, subject to the caveat that: “Management remains willing to grant additional time for an inspection, should circumstances require it.”

7The issue in this case is whether s. 9(34) and (35) of the OHSA require the Employer to pay the Grievor for the time which he asserts he spent writing the report in relation to a workplace inspection conducted pursuant to s. 9(27). Those provisions read as follows:

(27) If it is not practical to inspect the workplace at least once a month, the member designated under subsection (23) shall inspect the physical condition of the workplace at least once a year, inspecting at least a part of the workplace in each month.

(34) A member of a committee is entitled to,

(a) one hour or such longer period of time as the committee determines is necessary to prepare for each committee meeting;

(b) such time as is necessary to attend meetings of the committee; and

(c) such time as is necessary to carry out the member’s duties under subsections (26), (27) and (31).

(35) A member of a committee shall be deemed to be at work during the times described in subsection (34) and the member’s employer shall pay the member for those times at the member’s regular or premium rate as may be proper.

8The Employer argues that nothing in the OHSA requires an employer to pay for preparation time or the writing of a report in relation to the inspection. In this case, however, the joint health and safety committee agreed that two hours would be provided for the writing of the report. The Employer argues that agreement falls within the ambit of s. 9(34)(a) of the OHSA. That is, the Employer argues writing of the report constitutes preparation for a health and safety committee meeting, and the two hours allocated for that purpose constitutes “such longer period of time as the committee determines is necessary to prepare for each committee meeting”.

9Apart from anything else, a difficulty with the Employer's argument is that it is quite clear, as set out above, that the committee has not agreed on the amount of time required to write the report. In any event, I do not agree with the restrictive interpretation of the OHSA which underlies the Employer’s argument.

10I begin with the observation that it is trite law that the provisions of the OHSA are to be given a broad, liberal interpretation consistent with its purposes.

11Pursuant to s. 9(34) a worker member is entitled to such time as “is necessary” to “inspect the physical condition of the workplace” under s. 9(26) or (27), and pursuant to s. 9(35) the worker member is entitled to be paid for such time.

12A key question is, of course, what “is necessary”. In my view, the determination of how much time “is necessary” is an objective one. It is not simply a question of how much time a member of the committee considers is required for the performance of duties under subsections (26), (27) or (31), but how much time would be reasonably necessary in the circumstances to perform those duties.

13A number of factors might go into a determination of what is objectively necessary. Without in any way meaning to be exhaustive, in my view they include the nature and size of the workplace being inspected and the nature of the hazards which might be encountered. I would note that the workplace in question here is one floor of the court house located at 330 University Avenue, Toronto, Ontario. This would not appear to be an inherently hazardous workplace and in any event there is no evidence to suggest that it was.

14If preparation is reasonably necessary in order to conduct the inspection, then in my view that preparation is part of the inspection. For example, if it is necessary for a worker member to don a Haz-Mat suit prior to entering the workplace to conduct the inspection, the time spent doing so forms part of the time spent conducting the inspection.

15It is also important to note that the purpose of an inspection of the physical condition of the workplace pursuant to s. 9(26) or (27), is so that the worker member can inform the members of the committee of what is observed. The worker member is acting as the eyes and ears of the committee. Section 9(23) and (30) provide:

(23) Subject to subsection (24), the members of a committee who represent workers shall designate a member representing workers to inspect the physical condition of the workplace.

(30) The member shall inform the committee of situations that may be a source of danger or hazard to workers and the committee shall consider such information within a reasonable period of time.

In my view, in order for the worker member to fulfill this purpose, the worker member may create record as an aide memoire. The creation of a report of this nature is, therefore, part of the inspection.

16The OHSA, however, assigns the task of making recommendations not to the worker member conducting the inspection but to the committee as a whole. Section 9(18) provides:

(18) It is the function of a committee and it has power to,

(a) identify situations that may be a source of danger or hazard to workers;

(b) make recommendations to the constructor or employer and the workers for the improvement of the health and safety of workers;

(c) recommend to the constructor or employer and the workers the establishment, maintenance and monitoring of programs, measures and procedures respecting the health or safety of workers;

(d) obtain information from the constructor or employer respecting,

(i) the identification of potential or existing hazards of materials, processes or equipment, and

(ii) health and safety experience and work practices and standards in similar or other industries of which the constructor or employer has knowledge;

(e) obtain information from the constructor or employer concerning the conducting or taking of tests of any equipment, machine, device, article, thing, material or biological, chemical or physical agent in or about a workplace for the purpose of occupational health and safety; and

(f) be consulted about, and have a designated member representing workers be present at the beginning of, testing referred to in clause (e) conducted in or about the workplace if the designated member believes his or her presence is required to ensure that valid testing procedures are used or to ensure that the test results are valid.

17In sum, under the OHSA, the role of a worker member conducting an inspection of the physical condition of the workplace is to identify situations that may be a source of danger or hazard to workers and to inform the committee of the same. It is then the role of the committee, not the worker member acting alone, to make recommendations to the employer in relation to those hazards.

18An employer or a collective agreement may, of course, assign other duties to a worker member in relation to the conduct of an inspection, for example the preparation of recommendations. That is not, however, the case here. No provision of the collective agreement was identified which did so. It is true that the Employer did authorize worker members conducting an inspection to spend 2 hours writing a report and, while I do not decide the matter, it may have been contemplated that such a report might include the making of recommendations. The Grievor, however, seeks as of right time beyond the 2 hours allotted by the Employer without satisfying the Employer’s condition that circumstances must require it. The Grievor’s claim for more time to write the report can only succeed, therefore, if it arises from the OHSA, that is if it “is necessary” as an aide memoire in fulfillment of his duty to identify and inform the committee of sources of danger or hazards to workers.

19The Grievor’s claim for more time to write the report is not consistent with this limited function of a worker member conducting an inspection. In response to the Grievor’s request for more time, his supervisor asked him to “outline the reason(s) for requiring more than two hours to complete the report.” The Grievor responded:

I’m adding to my complaint that I’m being requested to provide an outline to be granted time beyond 2 hours to write an inspection report.

In the spirit of co-operation, as an outline, I will need to :

a. Continue to review and analyze the previous inspection reports of the 7th floor:

b. Continue to organize the information from the previous report and from June 15 inspection information, into the inspection report for June 15/21:

c. Continue to review and analyze the actions taken by the Employer in the previous report(s) and to research what further recommendations can be provided to address the Potential hazards and/or hazard that will be identified by the inspection report of the 7th floor for June/21:

d. Continue to contemplate and prepare recommendations for the potential Hazards and/or Hazards that will be identified by the inspection report of the 7th floor for June/21:

e. Continue to try and condense the wording for each potential hazards and hazards that will be in the report and email.

20The Grievor’s “complaint” with respect to the request is not being pursued in these proceedings, accordingly I will not comment on it. The outline he offers, however, makes it clear that his vision of a report goes beyond that contemplated under the OHSA for a worker member conducting and inspection: the Grievor’s view usurps the role of the committee as a whole. Accordingly, I am not persuaded that the Union has established that more than two hours was necessary for the Grievor to write the type of report which may form part of an inspection under s. 9(27).

21There is a further dispute between the parties with respect to the amount of time which the Grievor actually had to write the report in relation to June 15, 2021. The inspection was completed at 9:30 AM. The Grievor was authorized to start writing the report immediately afterwards. The Grievor was scheduled to be in a court room at 12 noon to perform his regular duties as a Registrar/Clerk. There is no dispute that prior to attending in a court room, a Registrar/Clerk is required to perform certain pre-court duties. The Grievor claims he requires one hour to perform those duties, with the result that he only was given one and one-half hours to write the report, not two. The Employer claims only half an hour is required to perform the pre-court duties, with the result that the Grievor was given a full two hours to write the report.

22I do not find it necessary to resolve this dispute. The Employer authorized the Grievor to spend half an hour on pre-court duties. It is not for the Grievor to unilaterally decide he required more time to perform his pre-court duties and abandon other assigned duties, in this case the writing of the report, for that purpose.

23The Grievor asserts that in order to prepare for the inspection he needed to review the report from the previous inspection (conducted 5 months previously) and also assemble the following equipment:

a. Paper

b. Pen

c. Cell phone to take picture(s)

d. Water to drink

e. Comfortable shoes

f. Clip board

g. Mask

h. Face Shield

i. Backpack to carry some of the equipment.

24Given the nature of the workplace and the limited role of a worker member under the OHSA in conducting an inspection, I am not persuaded that a review of the previous report was necessary preparation for the inspection. The previous report could simply have been taken along as a check list to be consulted in the course of the inspection. Nor am I persuaded that any time should be allocated to the Grievor to assemble the equipment he lists. Assuming, that the Grievor did not already have these largely personal items with him and required time to gather them, and assuming, without deciding, that such time could be considered work, the amount of time is negligible and the principle of de minimus applies.

25The Union points to the fact that on one occasion the Employer directed employees scheduled for a work related training session which was to commence at 8:30 AM to come into work at 8:00 AM. The Union argues this demonstrates the Employer is aware that a certain amount of preparation time is required. The Union argues that in not granting preparation time in relation to workplace inspections, the Employer has engaged in discrimination contrary to Article 3 of the collective agreement. I am not persuaded by this argument. Article 3 prohibits discrimination on the basis of grounds enumerated under the Ontario Human Rights Code or union membership and also records the parties commitment to a workplace free of harassment. It is simply not engaged.

26For all of the foregoing reasons, the grievance is dismissed.