Ontario hospital's Friday shift not extended-tour shift
An Ontario arbitrator has denied a grievance demanding a new late-Friday shift similar to that in other units be counted as weekend work for part-time nurses in a specific hospital unit.
Pembroke Regional Hospital in Pembroke, Ont., had a collective agreement with the Ontario Nurses’ Union (ONA) with an hours-of-work provision that outlined regular shifts of seven-and-a-half hours plus a 30-minute meal break. The agreement also allowed for “extended tours” of 11.25 hours if nurses in the individual units voted for it.
The collective agreement also stipulated nurses who work on consecutive weekends were entitled to premium 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 consecutive 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 weekend 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 premium if they worked the previous weekend.
However, the provision only allowed 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 labour and delivery unit — primarily 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 nurses in the unit were on the two-day, two-night extended tour and fell under the extended-tour weekend definition in the agreement, meaning no work after 7 p.m. Friday.
The ONA filed a grievance relating 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 implement such tours.
And even though the new Friday evening tour was seven-and-a-half hours, it fell within the time period reserved only for extended-tour hours.
The part-time nurses in the labour and delivery unit who were assigned to the Friday evening tour should be subject to the second 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 working 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 differentiated 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 provision’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 extended tours the week in question.
In the case of such ambiguity, past practice could often be used as an indicator of the parties’ intentions, said Slotnick.
In this case, the hospital applied the second weekend definition only to full-time nurses who were working exclusively or almost exclusively extended tours.
Part-time nurses worked Friday 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 considered infringing on the nurses’ weekend off — consistent with the first definition relating to 56 out of 64 hours off.
Slotnick found that the evidence showed that when the second extended-tour definition of weekend was added to the collective agreement in 2011, the union didn’t do anything, whether grieving for the weekend premium 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, acquiesced 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 unnecessary,” said Slotnick.
“When the shift was introduced, the hospital simply implemented in the labour and delivery 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” between full-time nurses in the labour and delivery unit only working 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 Weekend Premium), Re, 2016 CarswellOnt 19526 (Ont. Arb.).
