IN THE MATTER OF AN ARBITRATION
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
ONTARIO PUBLIC SERVICE STAFF UNION
Policy Grievance re Hours of Work
Before: Larry Steinberg, Sole Arbitrator
For the Union:
Erin Hallock, Counsel (September 17, 2019 only)
Roberto Henriquez, Counsel
Lois Boggs, Union President
Tim Mulhull, Chief Steward
Cheryl Wing, Staff Representative
Florry Foster, Staff Representative
For the Employer:
Mark Mendl, Counsel
Stephen Giles, Senior Advisor, Employee Relations Division
Hearings held on September 17 and December 6 2019; July 24, November 17 and
December 15, 2020
 I was appointed pursuant to s. 49 of the Labour Relations Act, 1995 to hear this
policy grievance about the hours of work.
 The dispute concerns the proper interpretation of Article 15.01.02 of the collective
agreement which states “The work week shall consist of not less than thirty-five (35) hours
nor more than forty-two (42) hours per week, Monday to Friday”.
 The union interprets this provision as meaning that there is a 35 hour work week
with the result that if, for example, employees have worked 35 hours by Thursday of any
week, employees can decide not to work on Friday without seeking permission from their
 The employer interprets this provision as meaning that there is a 42 hour work
week so that in the above example, employees must work on Friday up to the limit of 42
hours or use a credit (i.e. vacation or compensating day) for the day.
 I disagree with the interpretation asserted by each party. The interpretation
advanced by the union would effectively ignore the clear language that the work week
can extend up to 42 hours. The interpretation advanced by the employer would effectively
ignore that same language that the lower threshold for the work week is 35 hours.
 The parties are seeking clarification from me about the proper application of Article
15.01.02 of the collective agreement which I set out below.
 The union called Cheryl Wing (“Wing”) and Florry Foster (“Foster”), Staff
Representatives, Tim Mulhull, (“Mulhull”), Chief Steward, and Lois Boggs (“Boggs”),
Union President, to give evidence. The employer called Ted Panagiotoulias
(“Panagiotoulias”), Supervisor of Employee Relations and Steve Saysell (“Saysell”),
Administrator of Local Services to give evidence.
 A summary of their evidence is set out below.
 The employee group affected by this grievance is known as the Pro-Tech staff.
This group encompasses a wide variety of jobs, including Staff Representatives. Both
parties agree that the duties and responsibilities of Pro-Tech employees make it
impossible to have specific hours per day or per week.
 This shared understanding is reflected in Article 15.01.01 which states “The Union
and the Employer recognize that the requirements of the Pro-Tech positions are such that
specific hours per day or per week are not possible”.
 Both parties agree that the duties and responsibilities of Staff Representatives
include negotiations, servicing of locals, handling of grievances, administering events
procedure, answering questions, in some cases travelling long distance to visit locals,
holding meetings after hours and, in some cases, attending grievance hearings, for
 Pro-Tech employees are paid a salary. Therefore, the amount that they receive is
the same whether they work 35 hours or 42 hours.
 Pro-Tech employees receive their salary for all hours worked up to 42 hours.
 In addition, for all hours worked beyond 35 hours and up to 42 hours, employees
receive and earn compensating time. Pursuant to Article 15.01.03, employees are
automatically given five compensating days per year “to be scheduled at a time mutually
agreeable to an employee and the Employer”. Employees can also earn up to nine
additional compensating days per year to be scheduled in the same way. Employees earn
one compensating day for every seven hours they work over and above 35 hours in a
 Finally, overtime is paid for any work beyond 42 hours but must be specifically
approved by the employer prior to the work being performed. When overtime work is
performed, it is paid at an hourly rate in the manner determined by the collective
agreement. The employees are directed not to book meetings on Fridays since it is
impossible to predict what would occur earlier in the week, and not scheduling a meeting
on Friday avoids the possibility of a meeting taking them over the 42 hour threshold for
 Both Wing and Foster testified that prior to the events giving rise to the grievance,
they had recorded less than 42 hours of work in a week on their timesheets on numerous
occasions without objection by the employer. In cross-examination, they acknowledge
that in some of those weeks, credits were used to bring the total up to 42. These credits
could include sick days, statutory holidays, compensating days, etc. Nevertheless, it is
equally clear that in many weeks they recorded less than 42 hours of work on their
timesheets and there is no evidence that the employer made any objection to that.
 In addition, both Wing and Foster testified that once they had worked 35 hours in
the week, they felt they had the discretion to book off the rest of the week without
permission from their supervisor. This is based on the notion that the work week is 35
hours; however, they did acknowledge that if directed by the employer they could be
required to work beyond 35 hours and up to 42 hours if there was work that needed to be
 Wing testified about her timesheet for week ending April 6, 2019. Her timesheet
for that week indicated a total of 38 hours with two hours recorded on Friday, April 5. Wing
does not submit timesheets on a timely basis and was not contacted by the employer
about the timesheet until July. On July 4, 2019 her supervisor at the time, Denis Boyer,
sent her an email that stated:
I have confirmed with Employee Relations that you are required to use a credit
for April 5, 2019… As per the OPSSU Collective Agreement, Pro-Tech staff are
required to work from Monday to Friday, and are required to work between 35
and 42 hours. The expectation is that you will record hours worked or credits
every day between Monday and Friday, until you reach 42 hours, at which time
you were are able to stop working or request overtime.”
 As a result, Wing testified that she opted to use a four hour vacation credit to bring
her hours to 42 for the week.
 Foster testified about her timesheet for week ending March 23, 2019. She had
recorded on that timesheet that she worked 35 hours from Monday to Thursday. She
recorded no hours for Friday1. In an email dated July 24, 2019 she was advised by her
supervisor, Bebe De Freitas “(De Freitas”), that employee relations advised that she was
required to use a credit for the day off on Friday, March 22. She opted to use a
 She also testified about her timesheet for the week ending August 17, 2019. By
Thursday of that week she had recorded 40 hours of work. She was advised by her
supervisor, Steve Nield, that she was required to work two hours on Friday to bring her
total to 42 hours for the week.
 Both Wing and Foster testified that they were shocked by the employer’s
requirement they were required to use a credit for Friday when they had already worked
35 hours by Thursday. This was based on the prior practice about which they testified
where they recorded less than 42 hours in the week but were not required to use a credit
to bring them up to 42 hours in the week.
 Finally, Boggs testified in cross-examination about a timesheet involving another
Staff Representative and Union Steward, Lorri Foley (“Foley”), for the week ending June
9, 2018. From Monday to Thursday that week, Foley recorded 35 hours of work. On Friday
of that week she recorded no hours but noted on her timesheet that she was at a union
 She was requested to have the timesheet completed with hours entered for the
union time off for payroll to process. She responded that the time should not be billed to
1 The union treated the prohibition against recording zero hours on Friday as a separate issue. In my view, it is not a
separate issue. The real issue is whether employees can cease work after having worked a minimum of 35 hours in
the week. If they can and are not required to use a credit for the hours up to 42, then how the time not worked is
recorded on the time sheet is not important to the issue before me.
the union because she had worked 35 hours Monday to Thursday which freed up Friday
for union work. In her email to her supervisor, De Freitas, dated July 18, 2018 she stated
Although I realize the work week can be increased to 42 hours, that is not a
requirement unless there is a need such as further local servicing, negotiations,
urgent matters, etc. I did have my employer-provided cell phone with me during
that OPSSU day and monitored emails and for urgent calls.
 On July 24, 2018, De Freitas responded to that email. It is worth setting out the
response in full since it clearly captures the nature of the dispute between the parties.
As per the Collective Agreement, the work week is “not less than thirty-five (35)
hours nor more than forty-two (42) hours per week, Monday to Friday”. This means
that each day, Monday to Friday, are regular work days that must be accounted
for by recording your hours for each day, up to 42 hours per week.
If the minimum of 35 hours from Monday to Thursday was worked, and you would
like to take the Friday off as a comp day, please indicate on your timesheet as
such. If you do record a comp day, we do not need to know how many hours were
spent on OPSSU business. Until the 42 hours are recorded for the week, you do
not have the option to take a week day off without recording the use of your time
or expending any credits.2 [emphasis added]
 Foley chose to have the day recorded as vacation in order to meet the 42 hour
criteria. No grievance was filed about this matter.3
 Boggs testified that in her view there was a complete change in practice in
July/August 2019 with respect to the way in which Wing and Foster, who were the only
2 De Freitas based her email on advice received from Maurice Gaby, Payroll Administrator. In his email to her he
stated clearly “The work week is not 35 hours, which can be increased to 42 hours only if required (as suggested in
her email below)”. He was referring to the extract from the July 18, 2018 email from Foley to De Freitas set out at
para. 24 above.
3 Boggs testified that the reason no grievance was filed was because she viewed this matter as not being of general
application but rather involving issues of union time off. There had been disagreement between the parties about
how to deal with issues of union time off. The uncontradicted testimony of Boggs was that the union was engaged
in high-level discussions with the employer about the issue in an attempt to achieve a better relationship between
the parties. The parties did agree on a resolution to the issue.
employees treated this way that she was aware of, were required use credits on the Friday
of the week where they had already worked for 35 hours. She stated that if she knew the
employer was going to change its practice this would have been raised at bargaining for
the current collective agreement which occurred prior to the summer of 2019.
 Mulhull testified that in his view the goal is to reach 35 hours a week since that is
the minimum requirement. He stated that the hours of work are flexible and that
employees try to balance to 35 hours at the end of the week as best they can. He testified
that the provisions relating to compensating time are a recognition that it is not always
possible to get the work done in the allotted 35 hours.
 Mulhull testified that in view of the structure of the collective agreement and the
language regarding the hours of work, it was up to the individual employee to decide
whether to work on a Friday if, for example, that employee had worked 35 hours by
Thursday. He further testified that in this circumstance it was acceptable for the employee
to put a zero on the timesheet for the Friday and that he had never requested permission
to work only 35 hours per week.
 In cross-examination, he agreed that the employer can compel work up to 42 hours
in the week, however, in his view, in view of the language of the collective agreement, it
would be inappropriate for the employer to compel employees to work 42 hours each and
every week. He stated in re-examination that there would be no point to the hours of work
being expressed as a range if the employer could compel 42 hours of work each and
 He also testified that it would be inappropriate for employees to decide to stop work
at 35 hours if, for example, they were attending at an arbitration or negotiation which was
ongoing when they hit the 35 hour goal.
 He testified that he viewed the structure of the collective agreement as providing
the goal of 35 hours per week but with flexibility to go to 42 hours, if necessary. He agreed
that if an employee had worked 35 hours by Thursday and had nothing pressing on
Friday, they could decide to stop work at that point.
 He also testified that other than Wing and Foster, he is not aware of other
employees who have been treated the same as Wing and Foster and that as Chief
Steward he was in a position to know whether others had been treated the same.
 Panagiotoulias testified that in his view it is up to the employer and not the
employees to decide whether employees work past 35 hours per week. He testified that
if an employee worked 35 hours by Thursday, the employee should consult with the
supervisor to see if there is work to do.
 He testified that in the example above, the employee had two options. One is to
use a credit for the Friday and the second is to ask the supervisor to authorize a day off
on the Friday.
 In cross-examination, Panagiotoulias confirmed for purposes of calculating a
vacation day, seven hours is used. Similarly, 35 hours is used if an employee is away for
an entire work week. The same applies with respect to sick days and sick weeks.
 He further stated that his view of the collective agreement is that employees must
work Monday to Friday and the expectation is that if there is work to be done, to work up
to 42 hours. He is of the view that employees should be working every day.
 Saysell testified that he was in the bargaining unit from 2005 until 2012. He testified
that he was told by his supervisor that he was to work Monday to Friday up to, at that
time, 44 hours in a week. He further testified that it was his understanding that if he had
35 hours by Thursday, for example, he could not take Friday off unless he had a planned
vacation or he used a credit.
 He further testified that he never put zero down on a work day because was he
was told that his work week was Monday to Friday. He testified that even if he had nothing
scheduled for Friday, he needed to be available to handle unforeseen circumstances that
 He testified that when he left the bargaining unit and became a supervisor, the
Administrator at the time advised him that employees had to be available up to 42 hours
in a week in accordance the collective agreement. He stated that that is the way that he
applied the collective agreement as a member of management.
 He testified that since Pro-Tech employees self-schedule, it is expected that they
will schedule themselves to work each day Monday to Friday.
 In cross-examination he was asked what he meant by employees being available
Monday to Friday. He stated that employees have to at least be available to answer the
 The following provisions of the collective agreement are relevant to the question
Article 3-Management’s Rights
3.02 Other rights retained by the management of the OPSEU are hereby
recognized, prominent among which, but by no means wholly inclusive, are:
a) The right to determine and effect its own methods and scope of operations;…
to select, hire and directed them [staff];… To establish policies and standards
governing its operations…
b) to make and enforce reasonable rules of procedure and conduct during
working hours or on union assignment for its employees
Article 15.01 Professional-Technical Staff-Hours of Work, Compensating
Time and Overtime
15.01.01 The Union and the Employer recognize that the requirements of the
Pro-Tech positions are such that specific hours per day or per week are not
15.01.02 The work week shall consist of not less than thirty-five (35) hours
nor more than forty-two (42) hours per week, Monday to Friday.
15.01.03 Employees in Pro-Tech classifications shall receive compensating
time to a maximum of fourteen (14) days earned per year for regular hours worked
between thirty-five (35) and forty-two (42) hours per week Monday to Friday as
follows: [five days per year automatically “to be scheduled at a time mutually
agreeable to an employee in the Employer” and up to an additional nine days per
year to be earned by the employee and scheduled in the same way]
15.01.04 b) Compensating time may be applied to authorize leave used in units
of full-day days or half days. No other fraction of days shall be permitted.
15.01.05 a) Hours worked beyond forty-two (42) hours, Monday to Friday, must
be authorized in advance by the Employer. These hours will be paid, banked or
taken as lieu time at the rate of time and one half (1 ½ )…..
15.02 Support Staff-Hours of Work and Overtime
15.02.01 The work week shall consist of five (5) days of seven (7) continuous
hours each to a total of thirty-five (35) hours, Monday to Friday inclusive
Summary of Submissions of the Parties
 The union argues that the essential question is whether employees are permitted
to work 35 hours per week or whether they are required to work 42 hours per week on a
regular ongoing basis. A secondary question, according to the union, is whether an
employee is entitled to record a zero on a day they decided not to work once they had
reached 35 hours but less than 42 hours per week.
 The union reviewed the evidence in some detail. It highlighted the evidence of
Wing and Foster and noted a number of things. First, both were advised by their
supervisor, De Freitas, that the work week was 35 hours. Second, until the events in the
summer of 2019, and apart from the question of union time, timesheets that were
submitted with less than 42 hours in the week, including timesheets submitted after the
summer of 2019, had not been questioned.
 The union also pointed to the evidence of Foster who testified that she was told
not to book meetings on Fridays. The union also pointed to her evidence that urgent
matters must be attended to up to 42 hours in the week and thereafter only with
permission of the employer and that she was told by De Freitas that non-urgent matters
could be put off to the following week.
 The union also points to the evidence of Boggs that if the union had been advised
that the employer intended to change its practice regarding the number of hours
employees must work in the week, this would have been raised by the union in the
bargaining that led to the current collective agreement.
 The union also notes that days off, sick days and vacation days are calculated on
the basis of seven hours per day or 35 hours per week and from this argues that 35 hours
per week is “the base administrative number” to reinforce its argument that the work week
is 35 hours. As a result, the union asserts that “technically” employees can decide, without
permission from the supervisor, to stop work after they have worked 35 hours in a week.
 The union further argues that the language of Article 15.01.02 does not mean that
employees must work Monday to Friday each week. The union points to the provisions in
article 15.02.01 respecting Support Staff which indicates that their work week is “Monday
to Friday inclusive”. The union argues that the absence of the word “inclusive” in article
15.01.02 means that Pro-Tech employees are not required by the language of the
collective agreement to work each day Monday to Friday. The union cites the decision in
Great Lakes Pilotage Authority and Corporation of Professional Great Lakes Pilots and
Canadian Merchant Service Guild, 2017 CanLII 29211 (ON LA) (“Great Lakes Pilotage)
at para.10 (Albertyn) regarding the meaning of inclusive in a collective agreement.
 The union argues that the interpretive task of an arbitrator in a case like this is to
apply the principles of contract interpretation referred to in Bruce Power LP and Society
of Energy Professionals, 2017 CanLII 94612 (ON LA) (“Bruce Power”) at para. 41
… The message from the Supreme Court of Canada seems to be that the words
of the contract must be given their plain and ordinary meaning read in the context
of both the contract as a whole and in the objective circumstantial context which
was or ought reasonably have been known to the parties at the time the contract
was made, but that context cannot change or “overrule” the meaning of the words
used. That is, the decision-makers’ task continues to be what it has always been;
namely, to determine the objective contextual meaning of the contract but with
the words used being the most important consideration.
 In the alternative, the union argues that the employer’s requirement that
employees must work 42 hours in the week and are prohibited from recording a zero is a
rule that imposes a restriction on employee conduct (Re Zellers Inc. and U.F.C.W., Local
175,  O.L.A.A. No. 1134 at paras. 32, 36-37 (Dumoulin) (“Zellers”)). In these
circumstances, the union argues that the rules in KVP. Co. v. Lumber & Mail Workers’
Union, Local 2537 (Veronneau Grievance), 1965 CarswellOnt 618 (Robinson) (“KVP”) at
para. 34 are applicable. The union argues that the rule in this case fails on a number of
grounds, including, among others, that it is inconsistent with the collective agreement and
is unreasonable because it was not brought to the attention of the union and its members.
 In the further alternative, the union argues that the employer is estopped from
applying the 42 hour rule based on the practice prior to and after the summer of 2019
since the union was deprived of the opportunity to bargain with the employer on this issue.
 Based on all of the above, the union argues that the grievance should be allowed
and that the employer be directed not to apply its rule that employees must work each
and every day, Monday to Friday, 42 hours per week.
 The employer characterizes the issue as whether employees can decide to stop
working when they have worked 35 hours in a week or whether the decision to stop
working requires approval from their supervisor.
 The employer argues that the union’s argument is based on a misconception that
the work week is only 35 hours. The employer argues that this ignores the clear words of
Article 15.01.02 which provides for a range of hours from 35 to 42. The employer further
argues that this very issue was decided more than 30 years ago in an arbitration between
these very parties in OPSEU and Ontario Public Service Staff Union, Re, 1988
CarswellOnt 5246 (Stanley) ( “the Stanley Award”) where it was held that the virtually
identical provision to Article 15.01.02 meant the work week was not 35 hours but fell within
the range which at that time was 35-44 hours per week.
 The employer strongly argues that it is the employer who decides whether
employees must work beyond 35 hours in the week pursuant to its management rights,
although it does concede that decision cannot be made in an arbitrary, discriminatory or
bad faith manner which would include requiring employees to work 42 hours each and
every week without proper justification.
 The employer does argue, however, that if an employee is given permission not to
work, for example, on Friday, having worked less than 42 hours in the week up to
Thursday, the employee must use a credit to cover the hours that they are not working
on Friday. This is also the origin of the “no zero” rule.
 The employer argues that its position is supported by the clear and unambiguous
language of the collective agreement including Articles 3.02 and 15.01.02.
 With respect to the union’s argument that the omission of the word “inclusive”
means that employees are not required to work Monday to Friday, the employer argues
that the use of the word inclusive would be redundant given the clear language of Article
15.01.02. Given that language, the employer argues it would be inappropriate to read out
one day of the week from the language of the collective agreement. In the employer’s
view, it would take much more explicit language to limit the work week to something less
than Monday to Friday.
 The employer asserts that in considering Articles 3.02 and 15.01.02, the proper
approach is that employees are required to work up to 42 hours or to check with the
supervisor before leaving work prior to that. Otherwise, the employer argues that it cannot
meaningfully exercise its management rights where, as here, timesheets are not
submitted in a timely way.
 With respect to the union’s argument about the application of KVP, the employer
argues that this is not a case about the employer unilaterally promulgating a rule but a
case where the employer and the union disagree about the interpretation of a specific
provision in the collective agreement.
 Finally, with respect to the union’s estoppel argument, the employer argues that
there is no legally recognized practice the union can rely on. The employer asserts that
to the extent that there is a practice, the evidence indicates that it is inconsistent and
therefore insufficient to support an estoppel argument. In this regard, the employer points
to the evidence of Foley’s timesheet regarding union time off and the union’s awareness
of the employer’s approach to these issues.
 Accordingly, the employer request that the grievance be dismissed.
What is the Work Week?
 I agree with the interpretive approach articulated by Arbitrator Surdykowski in
 Applying that approach in this case can lead to no other conclusion but that the
work week for Pro-Tech employees is neither 35 hours as asserted by the union nor 42
hours as appears in some of the emails from the employer which were entered into
evidence (although in argument the employer seemed to move off that position to an
acknowledgement that the work week was a range from 35 to 42 hours).
 In my opinion, there is absolutely no ambiguity in the language of Article 15.01.02
which, for the sake of convenience, reads as follows: “The work week shall consist of not
less than (thirty-five) 35 hours nor more than forty-two (42) hours per week, Monday to
 The language means what it says, namely that the work week is between 35 hours
and 42 hours. It does not say that the work week is 35 hours and it does not say that the
work week is 42 hours.
 This interpretation of the work week is not new for these parties. The Stanley
Award, which was issued in 1988, dealt with the question of whether, in determining the
appropriate hourly rate for weekend overtime, the divisor was 35, as asserted by the union
or 40, asserted by the employer. After reviewing the language of the collective agreement
and the negotiating history, including the language of the predecessor collective
agreement, the arbitrator stated as follows:
18. Second, to succeed in the argument that 35 hours is a proper divisor the
grievors must establish that 35 hours is the regular work week. If one thing is clear
it is that, although an argument may have been made for the work week being 35
hours under the old Collective Agreement, the new one clearly states the regular
work week is “not less than 35 hours nor more than 44 [now 42] ” and that hours
in excess of 44 [now 42] are overtime”. [emphasis added]
19. There is evidence that the employers [sic] practice has been that if an
employees [sic] ‘work was finished’ they were free to leave after putting in a seven
hour day. The daily quota of work in this kind of a unit is a rather elusive concept;
there are no quotas nor can there be. The parties have always recognized that by
the words of paragraph 1 of Appendix A1 [now Article 15.01.01]. The union tried to
negotiate those words out and substitute a clear statement that a week’s work was
35 hours. It is absolutely clear that they were not successful in that objective.
 Notwithstanding that the parties have negotiated numerous collective agreements
since the Stanley Award, the hours of work and overtime provisions are identical in the
current collective agreement to those that were before Arbitrator Stanley with the
exceptions that the upper limit of the work week is now 42 and there has been an increase
in the total number of compensating days from 12 to 14.
 In light of the clear language of the collective agreement and the long-standing
interpretation of that language that has survived unchanged through numerous rounds of
collective bargaining in the 30+ years since the Stanley Award, it is clear that the parties
have accepted that the work week is not 35 hours but rather falls within a range of 35
hours to 42 hours.
 As part of its contextual analysis in support of its argument that the work week is
35 hours, the union referred to the fact that daily credits, vacation days, sick days, etc.
are calculated on the basis of seven hours per day and 35 hours per week. In the face of
the language of the collective agreement and the long-standing interpretation flowing from
the Stanley Award, this analysis does not assist the union. It is quite clear that since these
employees are paid a salary without specified hours of work per day or per week, then
for administrative purposes the employer has determined how it will treat these credits.
This is no different than having to determine an hourly rate for overtime purposes for
employees who are paid a salary.
Can Employees Decide To Stop Work Once They Have Worked 35 Hours In A
 In my opinion, employees cannot decide on their own to stop work once they have
reached 35 hours of work in a week. This follows logically from the fact that the work week
is not 35 hours but is 35 hours to 42 hours.
 The employer correctly points out that pursuant to its management rights it has the
right to direct its employees and to assign work. In fact, all the union witnesses
acknowledged that if they had worked 35 hours in the week and were directed by the
employer to perform additional work, they were required to do so. Similarly, all of the
union witnesses acknowledged that if the employer directed them to work overtime (more
than 42 hours) they would be obliged to do so.
 It follows logically, therefore, that since the work week extends up to 42 hours,
employees who wish to stop working before they work 42 hours in the week require the
approval of their supervisor to do so.
Supervisory Discretion to Approve or Not Approve a Request to Work Less Than
 Although not apparent from the email exchanges referred to in evidence, in
argument the employer acknowledges that the supervisor has a discretion whether to
approve or not approve a request of an employee to cease working before that employee
has worked 42 hours in the week, and that the discretion cannot be exercised in an
arbitrary, discriminatory or bad faith manner. The employer further acknowledges that if
every employee request to stop work prior to working 42 hours was denied, this would
likely not be in compliance with this standard.
 This is undoubtedly correct. If it were otherwise, then the employer would
effectively be turning a 35 to 42 hour work week into a 42 hour work week. It is not for me
to outline all the various considerations a supervisor should consider in exercising that
discretion, but one situation that was raised several times during the hearing requires
 All of the union witnesses who testified recognized that time sensitive or urgent
matters need to be attended to regardless of the number of hours of work they had worked
in the week (subject to the requirement to seek permission for work beyond 42 hours).
 However, by the very nature of the Pro-Tech jobs, there is always some work to
be done which is not of an urgent or time sensitive nature but, for lack of a better word, is
of a routine nature. The simple fact that routine work remains to be done after the
employee has worked 35 hours but before the employee has reached 42 hours would
not, in my opinion, justify a refusal by supervisor to approve the time off requested.
 There are two other points that I wish to make. First, it is inappropriate in my view
for the employer to require employees who request such time off to use a credit in order
to reach 42 hours in the week. This flows logically from the fact that the work week falls
within the range of 35 to 42 hours and there is simply no justification to require employees
to use a credit to bring their hours up to 42 in the week.
 Second, where employees request the time off from their supervisor and where it
is granted, the employee must keep themselves available should any urgent or time
sensitive matters arise while they are not at work. Once again, this flows logically from
the fact that the work week extends to 42 hours and that employees can be required to
work up to this limit, if necessary. Employees must keep themselves available if an
unforeseen urgent or time sensitive matter arises while they are off work (as Foley did).
If the employee wishes the time off and does not want to remain available, then they
would be at liberty to use a compensating day or a vacation day.
Must Employees Work Monday to Friday?
 The next issue that must be determined is whether employees are required to work
every day from Monday to Friday.
 The parties have acknowledged in Article 15.01.01 that the requirements of the
Pro-Tech positions “are such that specific hours per day or per week are not possible”. In
light of that reality, the evidence at the hearing is that employees self-schedule due to the
nature of their work. The evidence is that employees are expected to “flex” their hours so
that overtime can be avoided and that the work is spread out over the work week Monday
to Friday. (Mulhull testified that in his view employees have to flex to 35 hours in the week
whereas Panagiotoulias and Saysell believe that employees have to flex to 42 hours in
 But the nature of the work performed by Pro-Tech employees can be
unpredictable. For example, negotiations or arbitrations may extend longer than
anticipated or emergencies may arise that will throw off the best planned weekly or daily
agenda. The result may be that employees reach or exceed the 35 hour minimum before
 Both parties agree that where employees, for example, reach 42 hours by
Thursday they cannot work on Friday without the permission of their supervisor since that
would require the payment of overtime. Article 15.01.05(a) requires that overtime “must
be authorized in advance by the Employer”.
 The issue arises where employees have worked 35 hours or more up to Thursday
but less than 42 hours. As noted above, the work week is neither 35 hours nor is it 42
hours but is a range of 35 hours to 42 hours.
 The union’s position is that where an employee reaches the minimum number of
hours before Friday, the employer cannot require an employee to work on Friday simply
because Article 15.01.02 refers to a work week of “Monday to Friday”. The union referred
me to the analogous provision in Article 15.02.01 for Support Staff which provides that
the work week is “Monday to Friday inclusive” and argues that the omission of the word
inclusive in Article 15.01.02 indicates that the parties did not intend a rigid Monday to
Friday work week. The employer argues that the word “inclusive” is redundant and
 I disagree with the employer. These are sophisticated parties, in fact, among the
most sophisticated parties when it comes to the drafting of collective agreement
language. As pointed out by counsel for the employer in argument, one of the principles
of contract interpretation is that all words must be given meaning and that the words used
and not used are significant.
 Arbitrator Albertyn stated in Great Lakes Pilotage at para. 10:
The plain meaning of the word ‘inclusive’, in the provision, means ‘comprehending
stated limits or extremes’ (Miriam-Webster), ‘making clear that the item stated are
included in the set’ (Collins), and that the first and the last number are part of the
 The omission of the word “inclusive” in Article 15.01.02 and its inclusion in Article
15.02.01 must be given meaning. In the context of the working conditions of the Support
Staff, the use of the word “inclusive” makes sense since the employees are working a
fixed schedule of five days consisting of seven continuous hours each day to a total of 35
hours in the week.
 This, of course, is very different than the Pro-Tech employees who, because of the
nature of their jobs, cannot be scheduled for specific hours per day or per week. Much
greater flexibility exists in the scheduling of Pro-Tech employees and the omission of the
word “inclusive” is reflective of the need for flexibility in the work arrangements for this
 For all of these reasons, I am of the opinion that the reference to “Monday to
Friday” in Article 15.01.02 cannot be used to justify requiring an employee who, for
example, has reached at least 35 hours of work in the week by Thursday, to work on
Application of Principles of KVP
 I agree with the employer that this is not a case to which KVP applies.
 The employer has not acted pursuant to its undoubted rule-making authority.
Rather, this case involves a disagreement between the parties regarding the
interpretation of a specific provision of the collective agreement. The employer, acting on
its interpretation of the language of the collective agreement, has administered the
collective agreement in a certain way. The union disagrees with that interpretation.
 This case, therefore, is decided based on the rules applicable to the interpretation
of collective agreements and not based on the principles applicable to unilateral rules
promulgated by an employer.
 The Zellers case cited by the union is clearly distinguishable from the present case.
In that case, the company unilaterally promulgated a rule that employees could only work
five days per week. The collective agreement had provisions regarding the number of
hours per week that employees could work but no provisions dealing with the number of
days per week that employees could work. It was for that reason that KVP applied to the
rule. In this case there is no such rule pursuant to which the employer is acting but simply
its interpretation of the language of the collective agreement.
 This is not an appropriate case for the application of the principle of estoppel. The
reason for this is that there is no clear, consistent and accepted practice that has been
proven based on the evidence.
 First, there are approximately 175 employees in the bargaining unit. I have only
been provided with timesheets from two of them which is insufficient to establish a
practice on which an estoppel can be built.
 Second, and more importantly, the evidence of Saysell was that no such practice
existed while he was in the bargaining unit or since his departure from the bargaining unit.
His evidence was that from the moment he entered the bargaining unit he was advised
that the hours of work and the filling out of timesheets were to be done as the employer
has asserted it should be done.
 I do not doubt the evidence of the union’s witnesses that on numerous occasions,
both before and after the summer of 2019, they submitted timesheets indicating a work
week of less than 42 hours that were accepted and not questioned by the employer.
However, the most that can be said is that there was an inconsistent practice regarding
recording hours. An inconsistent practice cannot be used as the foundation for an
 As a result, there is no estoppel available to the union on the facts of this case.
 A summary of the above is as follows:
a) the work week for Pro-Tech employees is 35 to 42 hours
b) where employees have reached 35 hours of work in a week and they wish to
stop work, they must ask their supervisor for permission to do so
c) the supervisor has a discretion to grant or refuse the request, which discretion
must be exercised in a manner that is not arbitrary, discriminatory or in bad
d) if the supervisor grants the time off, the employees must remain available in
the event that unforeseen matters arise which are urgent and must be attended
e) if the supervisor grants the time off, employees are not required use a credit to
bring the hours up to 42
f) if the supervisor grants the time off but the employee does not want to remain
available, then a credit must be used.
 This is one of those situations where the natural progression is for members of the
bargaining unit to move into management positions. One of the great strengths of that is
that the members of management at one time walked in the shoes of the Pro-Tech
employees and fully understand and appreciate the nature of the work that the Pro-Tech
employees do and the pressures they are under.
 The Pro-Tech employees are responsible professionals who are dedicated to their
jobs and to the servicing of the members of the employer. Each one acknowledged and
accepted that they were responsible to flex their hours in such a way as to avoid overtime
and to spread the work over the Monday to Friday time frame as best they can.
 In light of the above, the issues that were litigated in this case should not be a
frequent occurrence. For the most part, employees should be able to flex their hours in
such a way that they will complete 35 to 42 hours of work per week during the Monday to
 So long as both parties act in good faith and recognize that the work week is neither
35 hours nor 42 hours per week but a range of 35 to 42 hours per week, the parties should
be able to navigate sensibly through this issue.
 In my opinion, this is an appropriate case to simply declare that Article 15.01.02
should be properly interpreted and applied as indicated above. No further remedies are
 I remain seized in the event the parties require assistance in implementing this
Dated at Toronto Ontario this 11th day of January 2021