ARTICLE 3 – EMPLOYEE DEFINITIONS
3.04 CASUAL
A Casual employee is defined as an employee whose work is not normally scheduled on a predetermined basis but who may be prescheduled or called in on a relief basis only to fill in for illness, vacations, emergencies and other periods of staff shortages once it has been determined that no Part-time employees normally scheduled on that unit/department have agreed to work the required number of shifts available. Once a Casual employee has been scheduled or called in under these provisions a Part-time employee may not displace them. A casual employee will be deemed to be terminated if he/she is unavailable to work for a period of 4 consecutive calendar months or more, exclusive of any approved leaves of absences.
Mandatory training, such as (CPR or SMG) will not be considered as “work” for the purposes of this article.
ARTICLE 25 – SICK LEAVE/SHORT TERM DISABILITY (FT)
New 25.02 After three consecutive days of absence caused by sickness or
injury the Employee will be required to provide a medical
certificate supporting such absence. Notwithstanding this provision, where it is suspected there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than three (3) days. Any such certificate requested by the Hospital, shall be paid by the Hospital.
Requests for further medical documentation shall be reasonable
and take into consideration the nature of the illness or injury.
ARTICLE 27 – VACATION (FT)
27.05 Vacation Schedules
(c) Vacation requests submitted after the vacation application period will be granted on a first come first serve basis once the vacation schedule has been posted and subject to the efficient operation of the department. Any denial of a vacation request shall be in writing and include the reasons for the denial.
(e) Vacation Requests
i) Vacation requests for the March break in any calendar year must be submitted in writing to each respective manager by December 1st of the
previous year and shall be approved in accordance with article 27.05(a).
ii) The Employer shall endeavor to respond to any vacation requests outside of prime time vacation within two weeks.
(f) Employees will be required to be available to work either Christmas (December 24, 25, 26) or New Year’s (December 31, January 1) each year,
on an alternating basis. Employees will not be permitted to take the same days off (Christmas or New Year’s) in the next alternating rotation,
if it results in denial of time off to another employee.
Clarity note: If an employee uses time off in year 1 to cover Christmas on a year they would normally work that holiday, they would not be able to utilize time off when it is their next turn to work on Christmas in Year 3 if it results in denial of time off to another employee.
ARTICLE 34 – POSTING AND FILING OF VACANCIES
34.04 b) Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary, he or she they shall be
paid acting pay from that day in accordance with the next higher rate in the higher classification, providing he or she has performed the duties for
the full day.
ARTICLE 35 – HOURS OF WORK AND OVERTIME
New 35.09 In accordance with the current practice, seniority shall continue to be a factor in choosing preferred lines on the master schedule.
ARTICLE 37 – PREMIUM PAYMENTS
37.01 b) Patient Care Facilitator Premium Payment
When a Registered Nurse is assigned to the Patient Care Facilitator role, they will receive a premium payment of $1.25/hours $2.10/hour for all hours worked.
c) Lead-hand/In-charge Premium Payment
When an employee is assigned to a “Lead Hand” or “in-charge” role, they will receive a premium payment of $0.70/hour $1.00/hour for all hours worked.
ARTICLE 40 – PART TIME EMPLOYEES
40.03 Part-time employees will be eligible for four percent (4%) vacation pay in accordance with the Employment Standards Act, 2000.
ARTICLE 41 – MODIFIED WORK
All injured workers shall be treated in accordance with the Workplace Safety and Insurance Act, The Ontario Human Rights Code, the Collective
Agreement and other applicable legislation.
The Employer, in consultation with the Union and employee (and the Union where requested by the employee) will provide fair and equitable practices to accommodate employees who are ill, injured or permanently disabled. The union will be provided notice of any scheduled return to work meeting.
To facilitate these programs, it is understood and agreed that provisions of the Collective Agreement may, where agreed, be varied.
ARTICLE 44 - WORKLOAD
The Parties have a mutual interest in the provision of quality patient care. Therefore, when an employee, or group of employees covered by this agreement have cause to believe they are being asked to perform more work than is consistent with proper patient care it is agreed by the parties that such concerns will first be raised with their immediate manager/ designate. A meeting with the employee(s) will occur within five business (5) days of the concern being brought to the manager’s attention. The immediate manager or designate will provide a response within 14 calendar days from the date of the meeting. Where a resolution is not reached, such workload problems may be discussed by the Labour Management Committee.
If no consensus can be reached at Labour Management Committee the parties will meet with the VP, Clinical Services within thirty (30) days of
referral to present the issues. The VP, Clinical Services will notify the Union of the decision in writing within fourteen (14) days.
ARTICLE 45 – DURATION
April 1, 2020 – March 31, 2022
LETTERS OF UNDERSTANDING
New Letter of Understanding: Whistleblowing
The Centre agrees to conduct an environmental scan related to a Whistleblowing policy. The letter of understanding shall expire with the expiration of the collective agreement.
Letter of Understanding #1: Labour Management Committee - Not renewed
Physicians Assistant Wage Scale
Effective date of the award, add to Psychometrist classification for purposes of the wage grid. Existing Physician Assistants to be placed at Step 5 of the grid.
Wages
Effective April 1, 2020 1%
Effective April 1, 2021 1%
Retroactivity
Current employees on staff, from the date of either of this award, will be paid retroactivity, within four (4) full pay periods, from the date of this award, on the basis of hours paid. Retroactivity shall be paid on wage increases, including any payments based on the wage rate (for example, the percentage in lieu of benefits and vacation pay).
The Hospital will contact former employees at their last known address on record with the hospital, within four (4) full pay periods from the date of this award, to advise them of their entitlement to retroactivity. Former employees will have a period of four (4) full pay periods from the date of the notice to claim such retroactivity and, if they fail to claim within the four (4) full pay periods, their claim will be deemed to be abandoned.
Compensation Reopener
We remain seized to reopen compensation issues should outstanding constitutional challenges prove successful or should Bill 124 be otherwise modified or repealed with retroactive effect or for some other legally relevant reason such as, for instance, if the union’s exemption request filed is granted.
Notice
The Union gives notice of strict adhere to articles 39.02 (Launder Uniforms) , 37.10 (transport patient in own vehicle), 35.03(a) (round to the nearest half-hour).
The Union gives notice that its interpretation of Article 32.07 includes the lowest classification that the employee is qualified and able to do, not necessarily the lowest classification.
The Union also gives notice of its interpretation of Article 37.08 (Reporting Pay) which applies whether the employee is on site or not.
The Award
IN THE MATTER OF A BOARD OF INTEREST ARBITRATION PURSUANT TO THE HOSPITAL LABOUR DISPUTES ARBITRATION ACT
BETWEEN:
(“the Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 331
(“the Union”)
BEFORE:
Larry Steinberg Chair
Harold Ball Hospital Nominee
Terry Moore Union Nominee
Appearances
For the Employer:
Amanda Cohen Counsel
Alia Rashid Counsel
Quinn Brown Student-at-Law
Camille Thomas Director Human Resources, Wellness,
Occupational Health & Safety
Gordon Shantz Lead, Labour Relations
Vincci Tang Deputy CFO
Mark Rice Administrative Director
Sarah Kipping Director of Professional Practices
Chris Nielsen Manager – Environmental Services
For the Union:
Manzur Malik, Research Officer
Jennifer Markle, Staff Representative
Jonathan Leung, Bargaining Committee
Leanne Beaudry, Bargaining Committee
Sarah Carde, Bargaining Committee
Jackie Schumacher, Bargaining Committee
Gabriela Turnbulls, Bargaining Committee
Tracy Bray, Bargaining Committee
Denise Wagler-Allan, Bargaining Committee
Hearing held by Zoom on November 1, 2021; Executive Session November 25, 2021
[1] This is an interest arbitration pursuant to HLDAA to settle the terms and conditions of a renewal collective agreement between the parties. The parties were unable to agree on the term of the renewal agreement and accordingly, pursuant to s. 10(11) of HLDAA, the renewal agreement will be for a term of two years from April 1, 2020 to March 31, 2022.
[2] The employer is a 346-bed public hospital providing an array of specialized assessment and treatment services to those living with complex and serious mental illness. There are 1164 employees represented by the union in three bargaining units which bargain together. These are the RN unit (363 employees), the Office, Clerical, Serivice and Maintenance unit (225 employees) and the ParaMed/Professional unit (576 employees).
[3] Notice to Bargain was sent by the Union on January 3, 2020. Because of the pandemic, bargaining commenced much later. The parties bargained on January 6 and 7, 2021. Shortly thereafter, the Employer filed for conciliation on January 13, 2021. Conciliation took place on February 16 and 17, 2021. On February 26, 2021, the No Boards were issued.
[4] In resolving this dispute, the Board has had regard to and applied the provisions of s. 9(1)(1.1) of HLDAA. In addition, and notwithstanding the able argument of the union, we are bound by the provisions of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (“Bill 124”) and, but for Bill 124, the outcome would have been different. Bill 124 limits total compensation increases to 1% during the moderation period. As is now normative, we have included a wage reopener provision should outstanding constitutional challenges prove successful or should Bill 124 be otherwise modified or repealed with retroactive effect.
[5] After considering the evidence and argument of the parties the renewal agreement shall consist of the expired terms of the existing collective agreement, all matters agreed to by the parties in collective bargaining and the following terms and conditions. All proposals not referred to below are dismissed.
a) Article 25 Sick Leave/Short Term Disability Full Time Employees Only
New 25.02 After three consecutive days of absence caused by sickness or injury the Employee will be required to provide a medical certificate supporting such absence. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee's manager may require an employee to submit a medical certificate for a period of absence of less than three (3) days. Any such certificate requested by the Hospital, shall be paid by the Hospital.
Requests for further medical documentation shall be reasonable and take into consideration the nature of the illness or injury
b) Article 35 Hours of Work and Overtime
New 35.09 In accordance with the current practice, seniority shall continue to be a factor in choosing preferred lines on the master schedule.
c) Article 41 Modified Work
Amend the second paragraph, first sentence as follows:
The Employer, in consultation with the Union and employee will provide fair and equitable practices to accommodate employees who are ill, injured or permanently disabled.
d) Article 34 Posting and Filling of Vacancies Within the Centre
Article 34.04 (b) amend the second sentence by deleting “he or she” and replace with “they”.
e) Article 37 Premium Payments/Transportation/Meal Allowance
Article 37.05 (b) delete “$1.25/hour” and replace with “$2.10/hour”
Article 37.05 (c) delete “$0.70/hour” and replace with “$1.00/hour”
f) Article 40 Part Time Employees
Article 40.03 Employer proposal awarded.
g) Physicians Assistant Wage Scale
Effective date of the award, add to Psychometrist classification for purposes of the wage grid. Existing Physician Assistants to be placed at Step 5 of the grid.
h) Wages
Effective April 1, 2020 1%
Effective April 1, 2021 1%
[6] Retroactivity
Current employees on staff, from the date of either of this award, will be paid retroactivity, within four (4) full pay periods, from the date of this award, on the basis of hours paid. Retroactivity shall be paid on wage increases, including any payments based on the wage rate (for example, the percentage in lieu of benefits and vacation pay).
The Hospital will contact former employees at their last known address on record with the hospital, within four (4) full pay periods from the date of this award, to advise them of their entitlement to retroactivity. Former employees will have a period of four (4) full pay periods from the date of the notice to claim such retroactivity and, if they fail to claim within the four (4) full pay periods, their claim will be deemed to be abandoned.
[7] Compensation Reopener
We remain seized to reopen compensation issues should outstanding constitutional challenges prove successful or should Bill 124 be otherwise modified or repealed with retroactive effect or for some other legally relevant reason such as, for instance, if the union’s exemption request filed is granted.
[8] We remain seized until the parties enter into a collective agreement.
Dated at Toronto Ontario this 17th day of January 2022
__________________
Larry Steinberg, Chair
“I concur”
_____________________________ Harold Ball, Employer Nominee
“I partially dissent”
______________________________ Terry Moore, Union Nominee
Union Nominee Partial-Dissent
Although I have disagreements with specific aspects of the Chair’s award, once again the largest impediment to a fair and more balanced outcome is the perverse impact of the Ford government’s Bill 124 on collective bargaining.
The legislated outcome on compensation issues removes any real incentive for employers to do the work required to achieve common ground with union bargaining teams on contentious, non-compensation related issues. When the synergistic impact of the pandemic is added to a labour relations climate already poisoned by Bill 124, the results are predictable and will have long term negative impacts on labour relations.
By all accounts, the round of bargaining leading to this arbitration was as short as it was fractious, with many items that ought to have been resolved between the parties themselves remaining on the table. The union brought 18 issues to arbitration and the employer 4.
With respect to the employer’s proposals, it has to be said that asking the Board to grant it increased power to fire part-time employees for alleged failure to meet their availability and weekly hours of work commitments, without reasons acceptable to the employer, in the middle of a pandemic was not only factually unnecessary but also extremely provocative to a union whose membership is close to 40% part-time.
I fully support the Chair’s dismissal of that proposal as well as other tone deaf employer demands to cut bereavement leave entitlement as well as weaken full-time employee sick leave re-qualification rights when returning from a leave due to illness or injury that crosses from one calendar year to the next. These proposals lacked any demonstrated need and convey a breath-takingly insensitive attitude in the face of the challenges confronting hospital workers during the continuing covid-19 crisis.
I also agree with the Chair’s rejection of the employer’s request to eliminate one of the two full-time local union leave positions – despite the fact that it’s 100% paid for by the union. It maybe tempting to attack the messenger if you don’t like the message but it doesn’t solve real-world problems, increase problem-solving capacity between the parties, or improve the labour relations climate. In fact, it makes things worse.
The employer has tremendous authority to operate the Ontario Shores workplace under the terms of the management rights clause of the collective agreement. In recognition of all that power and authority, it has often been said by arbitrators and human resources specialists that an employer gets the labour relations climate it deserves.
With respect to the Chair’s award on the outstanding Union issues, I, first of all, need to acknowledge and agree with the awarded increases on shift premiums to industry standard levels. I also recognize that there is some improved language awarded related to master schedules and modified work. However, I would have awarded stronger language in both cases.
As the union argued, predictable master schedules are essential for part-time employees, particularly those struggling to balance work across multiple employers and personal circumstances made more difficult under pandemic conditions. And, on the flip side, seniority-based master scheduling provides the employer with a tool to assist part-time employees struggling to meet those challenges. Providing a clear right for employees to choose their preferred line on master schedules by seniority, subject to narrow operational requirement exceptions, would bring a welcome and justified element of predictability to often chaotic hospital worker lives.
On modified work, I would have awarded the right of employees to have a union representative present during any modified work discussions, unless that right was specifically declined by the employee. Employees seeking modified work are often among the most vulnerable people in the bargaining unit and it is not fair or reasonable, in my view, to expect them to advocate on their own behalf in discussions involving a working knowledge of collective agreement provisions as well as human rights rules/guidelines. Having a union representative involved in modified work meetings can make for better outcomes and fewer disputes.
All of Which Is Respectfully Submitted,
Terry Moore, Union Nominee
January 16, 2022
