London, Ont. city employees grieve after lack of input into work schedules

An Ontario city’s collective agreement that required it to consider employees’ expressions of interest when assigning them work didn’t limit its ability to create the schedules in the first place.

The City of London, Ont. had a procedure under its collective agreement in which it posted schedules of work for employees in advance and invited them to indicate their “expression of interest” in the schedules. It then normally took those preferences into consideration when finalizing the schedules. However, in 2017, after it received employees’ expressions of interest, it simply scheduled employees on one of the posted schedules without any changes to it.

The collective agreement required the city to properly post work schedules and provided for a 35-hour work week “of any five consecutive seven-hour normal work days” during the Monday-to-Saturday period. It also stipulated that the “normal work day will be scheduled on an eight-hour basis, inclusive of one unpaid hour off for lunch” but recognized that certain work areas may require different hours, such as during evenings. The posted schedule to which the city assigned employees involved rotational shifts that required all employees to work at least one week with a Tuesday evening or Saturday shift.

The union filed a grievance when the city scheduled employees to a posted schedule, arguing that it hadn’t properly posted work schedules when it ignored the “expression of interest” part. It argued the collective agreement required the city to consider employees’ interest and should only schedule employees according to schedule needs once it had fulfilled as many employee preferences as possible. In addition, the imposition of the rotational schedule deprived employees of the opportunity to express their interest for working the required hours as set out in the collective agreement.

The city countered that it had the right to schedule employees as it wishes according to its needs, subject only to the collective agreement restriction to schedule hours within the normal workday and normal work week while taking into consideration of employee expressions of interest.

The arbitrator noted that “as a general proposition, management has the right to operate and manage the workplace as it considers appropriate” — a right that was also enshrined in the collective agreement — and setting the work schedules for employees was part of that, subject to certain limitations in the collective agreement. In addition, the collective agreement recognized that the hours of the normal work week and workday could vary between and among the different work areas.

The arbitrator found that the collective agreement’s requirement that the city consider any expressions of interest by employees to work the required hours “when assigning normal work days and normal work weeks,” made it clear that the city had the right to schedule employees as it needed to and dictate the structure of the work week, not the other way around.

“The employees’ right to express interest in the ‘required hours of work’ is the right to express interest in working one or more of the schedules set by the employer, not the right to express their interest in which hours they prefer to work each day or on which five consecutive days and hours they prefer to work in each individual week of a multi-week schedule,” the arbitrator said. “There is nothing in the language used in [the collective agreement] that suggests that the

parties intended to so restrict the employer’s right to schedule employees and indeed, the words found there suggest otherwise.”

The arbitrator concluded that the collective agreement permitted the city to schedule rotating schedules where different employees could work different hours or days each week, as long as the schedules fell within the standards of five consecutive eight-hour days during the Monday-to-Saturday period and employees could express interest in these schedules once they were shared, not during their development.

Reference: London (City) and CUPE, Local 101 (05-16). Robert Herman – arbitrator. Adriana Hagan, Kimberley Benoit for employer. Michael Klug, Steve Holland, Phil Boyd for employee. June 11, 2019. 2019 CarswellOnt 10268