The employer’s offer of training was limited to employees on the day shift, the time when the third-party training was offered. That discriminated against employees on other shifts, even though the training was for a job that existed only on the day shift.
When an employer specified that a posted training opportunity was only available to workers on the day shift, the union grieved.
In 2010, a municipal employer posted a training opportunity for Public Works Operators (PWOs) to train as backhoe operators.
The only qualifications listed on the posting specified that applicants either be on the day shift or willing to transfer to the day shift for training. The posting said that prospective applicants would also be required to work the day shift after the completion of training.
The union grieved claiming that restricting training opportunities to the day shift violated the collective agreement.
The union argued that a worker’s shift did not amount to a “qualification” for the purposes of the collective agreement provisions governing training.
Certainly, the union said, a worker’s shift should not serve to deny an employee a training opportunity. A “qualification” is generally understood to refer to attributes such as education, training and experience that prepare a worker to perform the duties of a particular job. A worker’s shift does not make him or her either more or less able to perform assigned job duties or complete the necessary training.
Moreover, the union said, the posting failed to take seniority rights into account. A senior employee should not be made to lose out on a training opportunity simply because he or she is not working on the shift when the training is offered.
The union acknowledged that a requirement to offer such training either on weekends or off-peak hours would increase operational costs for the employer. However, the seniority rights of bargaining unit members trumped concerns about additional costs, the union said.
The employer argued that it was reasonable to schedule training as it did and that management’s rights permitted it to do so.
Context was important, the employer said. Of the 79 permanent PWOs, six worked weekends and only three were permanently assigned to night shifts. Training, in this case, involved the actual operation of a backhoe. Given that three backhoe operators were assigned to work the day shift and that the management staff that was responsible for training was also on the day shift, it was appropriate that the training should take place on the day shift.
There was nothing improper about management restricting backhoe training and operation to the day shift, the employer said. Management’s rights confirmed the employer’s right to manage subject only to specific restrictions as set out in the collective agreement.
The employer’s discretionary power to determine the nature of the training was reviewable according to a standard of reasonableness. In the circumstances, the employer said, it was reasonable to restrict backhoe training opportunities to employees working on the day shift.
The Arbitrator disagreed.
The employer did have broad latitude to establish and implement training. The employer also had the right to determine the nature of the training and the level of qualifications required to take the training.
Nevertheless, the collective agreement clearly established how the parties intended to provide training opportunities.
“While … the Employer retains broad decision-making power over the nature and scope of training, Article 23.05 [on Training] does limit that decision-making power. Specifically, the parties expressly utilized the term “qualifications” to set out the minimum standards required of employees to be eligible to participate in a training opportunity.”
Qualifications are attributes
The term “qualification” has consistently been interpreted by Arbitrators to refer to the attributes of an individual that are relevant to performing the duties of the position in question, the Arbitrator said.
This applied in this case too.
“Accordingly, for the purposes of Article 23.05, the term ‘qualifications’ should be interpreted in terms of the ability of the employee to successfully complete the training. The question posed by the use of ‘qualifications’ is whether the employee possesses the required physical ability, knowledge, experience and/or skill set that he/she would be a suitable candidate for the training. It is difficult to see how the shift worked by the employee is relevant to his/her ability to successfully complete the training. If the parties had intended that training opportunities be limited to employees working a particular shift they could easily have expressed this limitation in Article 23.05.”
It was inappropriate for the employer to restrict backhoe training to employees either working on the day shift or those willing to transfer to the day shift, the Arbitrator said.
The grievance was upheld.
Reference: The Corporation of the City of Peterborough and Canadian Union of Public Employees, Local 504. Brian Sheehan — Sole Arbitrator. Vince Panetta for the Employer and Gavin Leeb for the Union. February 23, 2011. 16 pp. Full Decision Order No. LVI3943-2.