a) New Collective Agreement – Hospital had to adopt Union’s central language, as opposed to status quo language
· Sinai Health System – Mount Sinai Hospital v CUPE Local 5492, (Kaplan, Shaw, Herbert, September 19, 2023)
CUPE was certified as the new bargaining agent for office and clerical employees at the Hospital. While this case dealt with the negotiation of a first collective agreement, the full-time and part-time employees had been represented by various unions since 1976 and 2006, respectively.
CUPE and the Hospital struggled to form a first collective agreement. CUPE wanted to adopt language from the CUPE central agreement. The Hospital, which had most recently had a collective agreement in place with NOWU, wanted to rely on the language from its previous collective agreement, which had imported some SEIU central agreement language.
The parties, having agreed on very few provisions of their first collective agreement, brought that matter to interest arbitration pursuant to the Hospital Labour Disputes Arbitration Act.
The majority decision in this case found that though the employees had previously been subject to language borrowed from the SEIU collective agreement, the fact that they sought new representation shows that they were not satisfied with those terms.
The board of arbitration found that where there exists prevailing central language in the hospital sector, the parties should default to using this language:
Indeed, the cases and settlements are legion – in this sector – where there exists prevailing, normative terms and conditions of employment embodied in a hospital central agreement, that the onus is on the party seeking to depart from these norms to justify that departure.
Hospital work is largely the same between one hospital and the next. While there may sometimes be reason to depart from the normative language, there must be a good justification for doing so. The arbitrator found that no such justification was offered by the Hospital in this case. Since other CUPE-represented hospital workers used the CUPE central language, and since similar language was used for a different bargaining unit in the Hospital’s employ, the CUPE central language was viewed as being generally appropriate for use.
The arbitration board ordered the parties to adopt CUPE central language for all non-monetary issues. Where there was no central language to adopt, the parties were ordered to use the existing language from the Hospital’s most recent agreement with NOWU.
Both the employer nominee and the union nominee dissented from this majority decision.
The employer nominee found that it was inappropriate to arbitrate a first collective agreement at this point, since the parties had not made real efforts to bargain and bargaining had not failed. Furthermore, he found that central terms are normally only awarded by an arbitration board where there is no collective agreement language already in place. In this case, there was already language in place that had been bargained for by the previous union. To award virtually every position proposed by the union harms the bargaining process and disincentivizes the union from actually bargaining. Furthermore, the employer nominee found that some of the Union’s proposals were not based on any demonstrated need and did not make sense in the circumstances:
The Union’s pursuit of Central language is an ideological pursuit. They want it because they want it, even when it makes no logical sense.
The employer nominee found that the parties deserved a more thoughtful consideration of the bargaining issues.
Conversely, the union nominee felt that the wages awarded should have been higher, and that less language should have been imported from the Hospital’s prior collective agreement.
b) Shift Exchange Grievance – Employer not allowed to impose additional limits on shift exchanges
· Canadian Union of Public Employees, Local 5180 v Trillium Health Partners, (Fishbein, September 1, 2023)
The Union brought a grievance relating to the Hospital’s new policy regarding shift exchanges.
The Hospital had been dealing with a very high number of requests for shift exchanges. The Hospital attempted to introduce a policy whereby each shift could only be exchanged one time, other than in exceptional circumstances.
The Union alleged that the Hospital’s policy violated the collective agreement, which stated that approval for shift exchanges “shall not be unreasonably withheld”.
To support its position, the Union referred to a 2017 decision between the same parties, which ruled that the language of the collective agreement did not allow the Hospital to limit the number of shifts that a single employee was allowed to exchange in a given time period.
The arbitrator found that the outcome of the grievance had to accord with the 2017 decision, which found that the collective agreement language did not support this type of limitation on shift exchanges. The arbitrator found that limiting the number of times that a specific shift could be exchanged was essentially similar to limiting the number of times that an employee was allowed to exchange shifts in a given month.
c) Bill 124 Reopener – ONA reopeners are not appropriate comparators for Professional Association of Residents of Ontario
· Ontario Teaching Hospitals (OTH) v Professional Association of Residents of Ontario (PARO), (Kaplan, September 14, 2023)
This was a renegotiation of certain provisions relating a collective agreement that was entered into when Bill 124, the Protecting a Sustainable Public Service for Future Generations Act, 2019, was in force. The collective agreement was reopened since Bill 124 was declared unconstitutional.
The Union represents medical residents working at teaching hospitals in Ontario.
The arbitrator found that the best comparators for the medical residents were other residents working in hospitals across Canada, since they perform the same work throughout the country.
While ONA has renegotiated its own collective agreements in the wake of Bill 124’s invalidity, the arbitrator found that they were not appropriate comparator agreements. The ONA reopeners, unlike the agreement in question, did not address inflation. Furthermore, hospitals have to be concerned with the recruitment and retention of nurses, but not of medical residents. Medical residents must obtain residencies as part of their licensing and are therefore not subject in any way at any time to market forces.
The arbitrator awarded wage increases of 0.75%, 2%, and 3.75% retroactive to 2020, 2021 and 2022, along with various other monetary increases.
d) Bill 124 Reopener – Arbitrators will take the present collective bargaining landscape into account when ordering wage increases
· Humber River Hospital v National Organized Workers Union, (Albertyn, August 22, 2023)
This is another Bill 124 reopener decision. The parties agreed on wage increases for 2020 and 2021 but could not agree to an appropriate wage increase for 2022.
Back in March of 2021, when Bill 124 was still in effect, the parties had settled the terms of their collective agreement through interest arbitration. The arbitrator retained jurisdiction “to address proposals by the parties” should Bill 124 be struck down.
The Hospital argued that the Union should be limited to requesting the wage increase that it had proposed back in March 2021 – a 2% increase for 2022. The arbitrator rejected this argument, finding that the previous decision left the question of wage increases open to negotiation and to arbitral discretion.
When dealing with Bill 124 reopeners, arbitrators may take into account the changed circumstances between the time an original award was issued and the time of the reopener. Reopener awards can reflect the current collective bargaining landscape, rather than just the historical one:
Consequently, all the recent reopener awards considered the scope of their jurisdiction to include the circumstances that arose after the original award (settlements, awards, economic developments, and other matters relevant to exercising a discretion under HLDAA), irrespective of whether there were firm proposals made by the parties as to what might happen if Bill 124 ceased to be effective… it would be artificial and mistaken to limit the Union to the submissions it made more than two years ago, when the economic terrain of hospital collective bargaining has shifted so significantly since then.
The “most important consideration” for arbitrators determining an appropriate wage increase for a reopener is to replicate what the parties themselves would have done in the same period. As a guide, the arbitrator adopted the 3.75% increase awarded to SEIU and CUPE, two comparator unions. However, since the annual increase would apply for 6 months past the expiry of the agreement, the arbitrator halved that increase to just 1.875%, so that the parties could have a free hand to bargain the appropriate increase in 2023.