Seeking to ensure that its members were assured a meal break while on shift, the union filed a grievance on behalf of paramedics charging that the employer was failing to provide meal breaks according to the requirements of the collective agreement.
Language in the collective agreement in question, which was negotiated in 2004, spelled out that the employer “shall” provide a half-hour meal break at some point within a designated three-and-one-half-hour window in the middle of the standard 12-hour shift. In the event that workers were unable to return to their stations for lunch, the employer agreed to pay a $15 meal allowance.
Before that language was negotiated, the collective agreement obliged the employer to “make every effort” to afford employees the opportunity of an uninterrupted meal break. In the event that they didn’t get a proper break, workers were entitled to a $12 meal allowance.
However, while it could not produce the document, the union alleged that there was an agreement administered under that contract that sought to reconcile the unpredictable nature of the job demands with the need to provide a meal break. Under this alleged agreement, workers who had been unable to book off for lunch would only be booked for the highest priority calls as the end of the lunch window approached.
Nevertheless, despite these efforts, the union asserted that an increased volume of calls has become a problem since the province downloaded the responsibility for Emergency Medical Services (EMS) onto regional authorities in 2000. This contributed to the inability of workers to reliably take a 30-minute meal break, according to the union.
Meanwhile, the provincial Employment Standards Act (ESA) was amended in 2006 to exempt paramedics from requirements in the Act that an employer “shall” provide employees a 30-minute meal break. As well, another amendment established a provision to allow bargaining agents and employers to bargain a provision to allow employers to pay workers in lieu of meal breaks.
Against this background, the union filed a policy grievance.
Before the Arbitrator, the union argued that the new language on meal breaks in the contract amounted to a mandatory provision. It wasn’t just that the parties had stumbled on the word “shall” to characterize the obligation — the bargaining history showed that the union specifically sought to change the language in order to make it mandatory, the union said.
Also, the provision in the contract outlining the entitlement to the meal allowance was not meant to serve as a substitute for a meal break as in the ESA, rather, the allowance was payable where a worker was unable to return to his or her station for a break.
The language on meal breaks was not mandatory but directory, the employer said. The parties were in agreement that the nature of the job made it impossible to guarantee that workers would always get a 30-minute, uninterrupted meal break — it was possible that workers could be called upon to work through an emergency without a break. Given that context, the employer said, the scheme framed by the contract required the employer ensure a lunch break when possible or provide $15 as compensation for the purchase of a lunch when it was not possible.
Use of the word “shall” does not always indicate a mandatory clause, the Arbitrator said. The context in which the clause is negotiated is significant as is the relationship of the parties when they negotiated the clause.
Contract language was changed
“In this case there is no doubt that in the 2001–2004 collective agreement, the meal provision was directory. The employer’s obligation was to “endeavor” to provide a meal break. The employer would not be in violation of the collective agreement if circumstances were such that on any given shift, the employer could not provide an employee with the break. In 2004, that language was changed to the present language.”
To accept the employer’s argument would mean that the change in the language of the agreement had no meaning. “That is unlikely,” the Arbitrator said. “It would seem from the negotiating history, therefore, that the parties intended to impose a mandatory obligation on the Employer to provide a meal break.”
The Arbitrator also rejected the employer’s argument that the union’s case was estopped by virtue of an earlier grievance that was abandoned. “In this case, the union is not seeking to resurrect the meal claims that were the subject of [a 2005 policy grievance regarding meal breaks], and if it were, it would be precluded from doing so. The union is however seeking an interpretation of the meal break clause, applicable to all employees covered by the EMS appendix, and there is no reason why that interpretation cannot be sought,” the Arbitrator said.
“In light of the foregoing, a declaration that the employer is obliged to provide meal breaks as set out herein under the meal break provision in Appendix D is hereby granted.”
Reference: Canadian Union of Public Employees, Local 1764 and Regional Municipality of Durham. Norm Jesin — Sole Arbitrator. John McLuckie for the Union and John Saunders for the Employer. September 20, 2010. 20 pp.