Canada: Employer's Safety Concerns Were Not Sufficient To Avoid Its Obligations Under Its Collective Agreement

Last Updated: November 10 2016
Article by Cristina Wendel

An Employer was required to revert to a previous shift schedule in accordance with its obligations under the collective agreement, notwithstanding its claim that the previous shift schedule was less safe.

Initially, the majority of the employees at the Employer's mine worked a rotating 2X2 shift schedule whereby employees each worked 12 hour shifts. They worked 2 day shifts, had a 24 hour break, followed by 2 night shifts and then 4 days off.

In 2014, after more than a year of negotiations, the Employer and the Union entered into a Memorandum of Agreement which included 2 Letters of Understanding setting out a new shift schedule. The new shift schedule was a 4X4 rotating shift. Employees would continue working 12 hour shifts but would do so in 4 day shifts, followed by 4 days off, then work 4 night shifts, followed by 4 days off.  The agreement was for a 9 month trial period after which employees would vote on whether they wanted to continue permanently with the 4X4 schedule, or return to the previous 2X2 schedule.

At the end of the 9 month trial period, the employees voted against a permanent change to the 4X4 schedule. Pursuant to the agreement, the Employer was required to return to the previous schedule within 60 days. The Employer refused, citing safety issues. During the trial period, it had monitored safety and performance indicators which it believed demonstrated that the 4X4 configuration was safer and more productive than the 2X2 arrangement. For instance, the Employer claimed that the trial period had yielded the lowest number of total incidents, with a 23% overall reduction, in spite of the Employer encouraging greater incident reporting. Although this was an unintended consequence, the Employer concluded that it could not, in good conscience, return to a shift arrangement it considered to be less safe. The parties discussed numerous options but were unable to come to an agreement. Both the Union and the Employer filed grievances.

The arbitrator found that the Employer was required to return to the 2X2 schedule in accordance with the agreement and in light of the results of the employees' vote. The arbitrator then considered whether the Employer's safety concerns were sufficient to justify its refusal to return to the 2X2 shift as required. The arbitrator accepted that the safety improvements were real but was not persuaded that a return to the 2X2 shift could be categorized as unsafe or in violation of the Employer's obligations under the occupational health and safety legislation. The arbitrator found it difficult to conclude the 2X2 shift was unsafe given that the Employer had operated this shift for decades and agreed with the Union's point that improved safety was not a "trump card that can simply be pulled out to defeat collectively bargained consequences." Overall, the evidence fell short of establishing that a return to the 2X2 shift would be unsafe. The arbitrator appeared to acknowledge that the Employer may have an overriding right to impose a new schedule based on safety issues, despite its collective agreement commitments; however, it compared that right to the employees' right to refuse unsafe work as a right that had to be exercised seriously and sparingly. Having the right did not mean that employees could refuse work because there may be a somewhat safer way of doing the work.

The arbitrator ultimately upheld the Union's grievance and directed the Employer to return to the previous 2X2 schedule as soon as possible. However, he urged the parties to work together to develop alternative schedules if the Employer considered it necessary. He also urged the Union and its members to give renewed attention to the safety considerations involved and not to let other issues direct attention away from proposals that offered a demonstrable improvement in safety.

SunHills Mining LP v. United Steelworkers Local 1595, 2016 CanLII 71922 (Alta. GAA)

For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com

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