Toronto, ON — May 20th, 2026 — A recent arbitration decision, Orillia Soldiers’ Memorial Hospital v. ONA (2026 CanLII 32982), provides welcome clarity for hospitals and other unionized employers struggling with premium pay claims tied to shift turn‑around rules. Arbitrator Colin Johnston dismissed a series of grievances seeking premium pay where nurses voluntarily picked up additional shifts that reduced the required time off between shifts.
ONA argued that once the nurse accepted the shift, it became part of their “scheduled” hours, triggering premium pay. The Hospital disagreed, maintaining that:
- The scheduling rules apply only to employer‑scheduled shifts, and
- Voluntarily accepted shifts do not convert into scheduled hours for premium purposes.
Arbitrator Johnston agreed with the Hospital.
The award reinforces a key principle: premium obligations under scheduling language apply only when the employer schedules the violation, not when employees voluntarily create the conflict by accepting extra shifts.
Below is a summary of the decision and what it means for employers.
The Issue: Do Nurses Get Premium Pay When They Voluntarily Pick Up Shifts That Reduce Turn‑Around Time?
ONA filed group, policy, and individual grievances alleging that nurses were owed premium pay under Articles G.04(c), G.05(f), and G.12 of the collective agreement. These provisions require specific minimum time off between shift changes, 16 or 12 hours for standard and extended shifts, and 48 hours after a night shift.
The twist? In every case, the Hospital had scheduled the nurses in full compliance with the collective agreement. The nurses later bid on and accepted additional shifts, often night shifts, that reduced the time off before their next scheduled day shift.
The Decision: Voluntary Shifts Are Not “Scheduled Shifts”
The arbitrator drew a clear distinction between:
- Scheduled hours (assigned unilaterally by the employer), and
- Additional hours worked (accepted voluntarily by the employee).
He emphasized that a nurse cannot decline a scheduled shift, but they can decline an additional shift offered through the Hospital’s automated bidding system. That voluntary choice is the defining feature.
Two key findings stand out:
- The Hospital complied with the scheduling rules.
The Hospital scheduled all nurses with the required time off between shifts. The conflict only arose because the nurses chose to pick up extra shifts.
- Voluntary acceptance = mutual consent to reduced time off.
Articles G.04(c) and G.05(f) expressly allow nurses to “mutually agree otherwise” to reduced time off. By bidding on the shift, the nurse consents to the reduced turn‑around and premium pay does not apply.
Arbitrator Johnston relied heavily on Arbitrator Herman’s earlier decisions (Guelph General Hospital[1] and Brockville General Hospital[2]), which similarly held that premium pay applies only when the employer schedules the violation.
Why Article G.12 Didn’t Save the Union’s Case
ONA argued that Article G.12, a general “failure to maintain scheduling rules” premium, applied regardless of how the conflict arose. The arbitrator rejected this argument, noting that Article G.12 cannot override the specific language in G.04(c) and G.05(f), and those articles explicitly contemplate mutual agreement to reduced time off.
In other words, Article G.12 is not a catch‑all premium for every instance of reduced turn‑around time.
Key Takeaways for Employers
- Premium pay is not triggered when employees voluntarily pick up shifts.
If the employer schedules the nurse properly, and the nurse later chooses to work an additional shift that reduces the turn‑around time, no premium is owed.
- “Scheduled” means employer‑assigned, not employee‑accepted.
This decision reinforces the long‑standing distinction in hospital sector jurisprudence:
- Scheduled shifts = employer‑assigned
- Additional shifts = employee‑accepted
- Premium language tied to “scheduled” shifts applies only to the employer-assigned shift.
- Mutual consent matters.
Where the collective agreement allows employees to “mutually agree otherwise,” voluntary shift acceptance is treated as consent to reduced time off.
- Automated shift‑bidding systems are not “scheduling.”
The arbitrator rejected the idea that shifts accepted through the ETA system become “scheduled” simply because the system updates the nurse’s calendar.
- Employers should continue to distinguish between:
- Posted schedules, and
- Additional shifts offered after posting.
This distinction is central to avoiding unintended premium pay obligations.
- A caution: the line can blur in other circumstances.
The arbitrator noted that if:
- Nurses must bid on shifts to secure full‑time hours, or
- The employer leaves large gaps in the schedule and relies on bidding to fill them, the analysis may differ.
Employers should ensure their scheduling practices do not inadvertently convert voluntary shifts into de facto scheduled hours.
Bottom Line
This decision is a strong affirmation of the principle that premium pay for shift turn‑around violations applies only when the employer creates the violation, not when employees do so voluntarily.
For hospitals and other unionized employers, it provides helpful clarity and reduces exposure to premium pay claims arising from voluntary shift‑picking practices.
If you would like to further discuss scheduling requirements, please reach out to a member of the Protea LLP team.
[1] Guelph General Hospital and ONA (2009-15), 2010 CarswellOnt 11572 (Herman)
[2] Brockville General Hospital and ONA Local 67 (Smith), 2020 CarswellOnt 14887 (Herman)
