Collective agreement differentiated between after-work communication and call-back to work

Healthcare employees on standby taking phone calls at home are not entitled to be paid a greater amount under a provision covering reporting to the workplace when a provision governing work-related communications was in the agreement, a Saskatchewan arbitrator has ruled.

The Saskatchewan Health Authority (SHA) had a collective agreement with its paramedics that included provisions covering paramedics who took telephone calls after regular working hours. One of the provisions, titled “Communication after hours” provided a minimum of a half-hour of pay at regular rates for each call. Another covered “Call back/reporting to work while on standby, which provided for at least two hours of pay at overtime rates for employees on standby who were called back to work.

Standby employees were those who weren’t on regular duty, but they were required to be available to respond immediately to a request to return to duty. They were paid an hourly rate during the standby assignment, which the collective agreement defined as “any period during which the employee is not on regular duty but is designated on standby, and must be available to respond without undue delay to any request to report to duty.”

The “Communication after hours” provision specifically covered employees who were “designated by the employer to receive work-related communications after leaving her place of work.” The “Call back/reporting for work while on standby” provision covered employees who were “called back to work after having completed her regular work schedule and having left the work site.”

Generally, employees are not entitled to be paid for standby duty unless it could be considered work, according to a lawyer.

Program taking phone calls

In 2015, SHA started a program called intermediate care services (ICS) that made house calls for seniors and other vulnerable people with certain criteria. Paramedics took phone calls during certain hours of the day from a dedicated phone number and assigned someone to visit the home if necessary. Visit could last between 20 minutes and two hours and would be recorded on an SHA database.

In April 2021, a home health monitoring program (HHM) was introduced to allow monitoring of patients on oxygen in their homes, in order to relieve overburdened hospitals. SHA developed a standby rotation of paramedics between 8 p.m. and 8 a.m. to answer phone calls from HHM clients. Paramedics on HHM standby had to remain at home near their phone and work computer and refrain from alcohol.

The HHM phone number was the same as ICS, so many of the calls that came in were from seniors and paramedics on standby would handle both types of calls, although they were supposed to pressed different keys for each option on the call.

The union filed a policy grievance, arguing that the two-hour minimum pay of the “Call back/reporting to work while on standby” provision applied to employees who were on standby and took a call after working hours. The union also argued that the collective agreement had two statuses and there was a difference between being on standby and being designated.

There is no requirement to pay employees for being on call, but there are minimum compensation requirements for employees called back to work after hours.

Higher rate for call-back to work doesn’t apply: employer

The SHA maintained that the 30-minute minimum in the “Communication after hours” provision applied, as the employees taking such calls had been designated for that duty. It also argued that the “Call back” provision only applied when employees were required to return to their regular location as it used the words “called back to work” and “work-site,” while the definition of “standby” referred to “duty,” not the physical workplace, so workers on standby for calls were not covered by the latter provision.

 The authority pointed out that it had records of about 4,000 instances from January 2015 to April 2021 where employees who received after-hours calls who received the 30-minute minimum for after-hours communication. Slightly over half of those were on standby at the time.

The arbitrator noted that the objective of both provisions in the collective agreement was to compensate employees for working after regular work hours, although they had different rates of pay. It agreed with the SHA that the wording used in the “Call back” provision and the definition of “standby” indicated that the parties intended there to be a difference between working in any location and returning to the physical workplace.

The arbitrator found that the “Call back” provision expressly referred to the location of the work-site, which also indicated an intention to connect return to work with a location. If they had wanted the provision to apply to any return to duty anywhere, that reference would have been omitted, the arbitrator said.

A Saskatchewan paramedic was entitled to premium pay for a second call-back shift while on standby, an arbitrator ruled.

Presence of both provisions indicated distinction

The arbitrator also found that the inclusion of the “Communication after hours” provision was designed to address the exact situation of the ICS and HHM calls – employees designated to receive and deal with telephone calls and other communication from home after working hours without going to the physical workplace. The purpose was to “clearly distinguish” after hours work from home and work that requires leaving home and going to a work-site, the arbitrator said.

The arbitrator also found that placing employees on standby was a form of designation, as referred to in the “Communication after hours” provision, further indicating the applicability of it for standby employees receiving calls. While employees could be designated to receive after-hours communication without being put on standby, the nature of standby status made it one form of designation, said the arbitrator.

In addition, the arbitrator noted that it was common practice over a five-year period for employees on standby to be regularly paid under the “Communication after hours” provision, which was accepted by the bargaining unit members.

The grievance was dismissed. See Saskatchewan Health Authority v. Health Sciences Association of Saskatchewan, 2023 CanLII 62985.