A labour arbitrator has held that the practice of unionized
long-term care home employees voluntarily working two 8-hour shifts
in succession did not violate the Ontario Employment Standards
Act or Occupational Health and Safety Act.
With respect to the ESA, the arbitrator held that the practice
did not violate section 18(1) which required that employers
"give an employee a period of at least 11 consecutive hours
free from performing work in each day." That was because,
according to the arbitrator, s. 18(1) permitted an employee to
voluntarily work more than 13 hours in a day; as such, the
collective agreement provision permitting double shifts was a
greater right or benefit and thus did not violate the ESA.
The issue under the OHSA was whether the employer, by permitting
employees to work double shifts, was violating its "general
duty" under s. 25(2)(h) of the OHSA to take all precautions
reasonable in the circumstances for the protection of a worker, due
to safety issues that could result from employee fatigue. The
arbitrator noted that there was "no meaningful
correlation" between workplace accidents or resident
complaints and employees working double shifts. Also, the practice
of double shifts was a reasonably-accepted industry standard. As
such, the general duty under the OHSA did not require the employer
to ban double-shifts.
The arbitrator stated, though, that employees should voluntarily
assess, before they take on an added shift, whether they are too
tired to work safely.
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