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HomeMy WebLinkAbout1988-0048.Interest.90-01-19E&&: INTHEMA’ITEXGFANIWPEREST ARBI’IRATICN UNDm ‘TmcmwNplpLoyEEs CCULECTIVE BARGAINING UNIT INVOLVING THE INSTIlVl’IWAL CARE CATWORY Ontazlo Public Service Employees Union - arid - The Qown In Right of Ontarlo D. Fraser, Chair George J. Milley, Employer Nomlnee Brian Swltzum, Union Nominee -for : -for Healincr: Michael Hllich, Staff Relations Officer Human Resources Secretariat Andre Eekerman, Senior Negotlator, OPSEXJ August 15th, 1989, Toronto 2 This matter involves the determlnatlon of wage rates and other matters for approximately 5,300 employees In the Instltutlonal Care Category of the Government of ontarlo. The Institutional Care Qtegory is one of eight occupational categories which bargain separately for wages. The Category consists mainly of employees involved in the care and custody of adult and juvenile wards of Ontirlo Psychiatric Hospitals, students of Schools for the Blind and Deaf, and residents of Mental Retardation Centres. The two most numerous classlficatlons In the Category are Counsellors, Resldentlal Life, and Psychiatric Nursing Assistants, who together account for approximately 76% of the Category. The Category also includes a number of other groups of employees, including Ambulance Officers. That group has approximately 331 employees, of whom some 45 to 50 have duties ln’the Air Ambulance Service, requlrlng flying in aircraft including hellcopters. Members of that latter group are described as Alr Ambulance Officers. The parties agree that the collective agreement containing the increases to be awarded herein shall be effective from January lst, 1989, to December 31st, 1989. They have further agreed that increases shall be retroactive to January lst, 1969, shall be payable on a full or pro-rata basis to all employees who are or were in the Category, and shall apply to all paid hours including overtime worked. The matters In dispute lnvolve salaries, special cases, pension rate increase protection, implementation, and interest on retroactive payments. We will consider these matters in turn. 3 The UBlon has proposed an increase of 9.8% in wages throughout the Category. In support of that proposal, it relies on a nun&r of factors including the growth in the Ontario economy, wage settlements in the public and private sectors in Ontario and elsewhere, growth in productivity, and dlfflcultles in working conditions including stress and increasing workload. The Fanployer has proposed that the wage increase be wlthln the range of settlements In 1989 for four other wage categories In the Ontarlo Public Services. Adjusted for special cases, those increases average out to 5.89% for Admlnlstratlve Services, 6.326% for Sclentlflc and Professional Services, 5.94% for Technical Services, and 6.077% for Office Administration. In support, the employer relies on a number of factors, including the economic climate as reflected by settlements in the private sector, internal relationships, recruitment and retention, and comparablllty of rates of pay for slmllar work in the private sector. We have reviewed all of these factors in detail. Submlsslons In respect of many of them have been analysed in depth In previous interest awards. We do not propose to repeat or add to those lengthy considerations in detail, but wlll indicate scloe major elements that led to our result. We have given substantial welght to settlements in the four other wage categories In the Ontario Public Sector, as they have been freely negotlated, as they represent a collective bargaining response to many factors which are also before us, and as they are close to home. i 4 ‘i We have given sorb? weight to the deterioration of the ratio in salaries between Psychiatric Nursing Assistants (PNA’s) and Counsellors (Resident Life), on the one hand, and Registered Nurses in the Ontario public service. There is also some similarity in the maintenance of that ratio (historically around 75% at the maximum rate), to the maintenance of the ratio between Registered Nursing Assistants (RNA’s) and Registered Nurses in general hospitals. Sections 12(2)(b) and 12(2)(c) of the Qown Fmployees Collective Bargaining Act mandate us to consider such factors, with the latter sub-section providing authority to consider such relatlonshlps “between classlflcatlons of employees”. This consideration, however, must be approached with caution, as the evidence suggests that the ratio may be in large p&t more of a statistical relationship than a historically-bargained one. Purthermore, the evidence also indicates that there are approximately two Counsellors for every PNA, which has the effect of limiting the statistical reach of such a ratio. Nonetheless, a working relationship exists, and weight must be given to wlntalnlng the “appropriate relationships” as provided by CXRA. Settlements in other sectors have been revlewed and provide general guidelines for us, but they are not as determlnatlve as the more speclflc factors we have considered. Growth in productivity is also a factor, but it 1s subsumed to some degree in the settlements we have reviewed. We have given some welght to working condltlons, and have reviewed evidence indicating a comparatively high stress level in the Category, caused by the unique demands of institutional care work combined with an lncreaslng workload. We would note, however, that the Institutional Care Category 1s not alone in thls respect, as the evidence also shows unusually high stress levels 5 i for correctional workers;and others who are involved with lnstltutlonallsed patients and inmates. Recruitment and retention are not simple factors to deal with. There is some evidence from the employer that there is no particular difficulty in recruiting and retaining employees in the Category, but the submlsslons on this are a relatively new n&ter, and the data must be regarded vith care. In particular, we would note that there are problems wlth retention data. For example, exit surveys (to find reasons for leaving) are an important element of any submission on the validity of retention data, but, as the unlon has pointed out, reasons given for leavlng will very often be masked for unspoken reasons, such as a desire not to “burn one’s bridges”. We can, however, conclude that recruitment and retentlon is not a slghlflcant problem in the Category, as it has,.perhaps, been in other categories. The effect of such a conclusion is limited. Where recruitment or retention is a problem, the response 1s reasonably straight-forward. Benefits are increased until a satisfactory recruitment or retention percentage Is achieved, or other changes are tie lnvolving such things as better job advertising, recruitment bonuses, or enhanced working conditions. But where recruitment or retention is not a problem, the opposite response, in some form or other, my not be appropriate for a category in the Ontario Public Service. The factors provided in GCBA, section 12(2), illustrate why. Section 12(2)(a) refers to the need for qualified employees. Hovever, the folloving subsections refer to such matters as conditions of employment in similar occupations, maintaining appropriate relationships betveen classifications, and fair and reasonable terms and conditions relative 6 to such thlngs as quallflcatlons, work performed, responsibility assumed, and so on. Those latter factors are almost all comparative factors, in one sense or another, maklng comparisons with other occupations or classifications, or comparing terms and conditions with such things as work performed or responsibility assumed. So there is a large, Inter-related web of factors used to suggest an appropriate wage level which have little or nothing to do with recruitment or retention on their face. It would be an unusual and unbalanced result, if the results of all such mandated comparisons were then down-graded, or reduced in effect, because, as found in section 12(2)(a), “the needs of the crown and its agencies for qualified employees” was being easily met. Such certainly could be done, but the circumstances would have to be quite unusual for the other “comparable” factors, in effect to be given less weight. We think that in view of the size and diversity of the occupations lmthe Ontario Public Service, that a factor of recruitment and retention would be most significant when it also enters the web through the “cornparables” route. In other words, if there 1s a downturn in the economy reflected, for example, In conditions of employment outside the public service, or in other classlflcatlons, it may be that ease of recruitment and retention changes the. comparable condltlons of employment to the extent that those changes In turn are seen as affecting conditions of employment In the category In questlon. We would conclude for these reasons that ease of recruitment and retention 1s certainly a factor to consider as we have here, but its weight depends in large part whether It has affected the large list of other comparable factors in the legislation. Evidence of that will be found directly in such things as comparable wage and settlement data. Thus, in conclusion, difficulties in recruitment and retention may produce a direct increase In benefits and working conditions. In a process of wage determination welshed heavily to cornparables, i z 7 eax of recruitment and retention must be viewed In llght of the comparables, and it will have most effect when It is reflected by them. Of all these matters, then, settlements in the four other wage categories have been given substantial weight. Condltlons of employment in similar occupations have been reviewed, and in particular the PNA/RN ration has been considered in light of an outside comparison. Difficulties in working conditions have been a factor, and a number of other factors have been reviewed, including recruitment and retention. We conclude that the resulting increase should be above the average range of settlements in the Ontario Public Service, and award an increase of 6.5% for all classifications effective January lst, 1969, for all paid hours including overtime worked .for all employees in the Institutional Care Category in-1989. The union has submitted that Ambulance Officers comprise a special case within the Category for which a 5% increase In wages above any general increase, is justified. The special case is based on the dlfferentlal between wage rates for such Officers, and.wage for rates for Ambulance Officers in the Metro Toronto Ambulance Service. The starting rate of that latter group is 8.8% higher than that in the Ontario public service. After two years, it is 5.5%.higher, and after five years, It is 13.7% higher. Furthermore, the Metro Toronto rates have been increased by 7% for 1969, and 7% for 1990. The special case 1s resisted by the employer, on the grounds that Ambulance Officers in the Institutional Care Category work throughout the Province and Metro Toronto Officers only work in the higher paid Metro Toronto 8 region, and that there 1s no history of parity between the two groups. The unlon has responded by noting that the separation between the two Services 1s not a clean one, as the Ambulance Offlcezs in the Institutional Care Category are the second largest group, and they routinely come lnto Toronto. After reviewing these and other submlsslons, It 1s our conclusion that it 1s not appropriate at thls time to adjust the rates of Ambulance Officers by a comparison wlth the Metro Toronto Service. The Metro Toronto rates result from a collective bargaining relationship which is based on factors that have not been sufficiently explored at this time. We accordingly make no additional award in this respect. .~ The union has submitted that Ambulance Officers, Air, comprise a further spxlal case within the Ambulance Officer group, and are entltled to a further 5% wage increase above that sought as a special case for the group. The union's case is based on a number of factors, lncludlnq: additional knowledge and skills required; addltional training and responslbllltles; the small space in which those Officers are confined for long flights, lnvolvlng additional physical and nervous straln; and the question of safety. With respect to safety, the union has provided evidence of a number of tragic alr accidents, some of them gulte recent,‘ In which Ambulance Officers have lost their lives. The employer has essentially responded that it vould be premature to provlde a premium for Ambulance Officers who work in the Alr Ambulance Service. A number of classlflcation grievances have been launched by Ambulance officers who perform Advanced Llfe Support duties, and a further number by Ambulance Officers in the Air Ambulance Service. A settlement of all these grievances has included a commitment to review the relevant class standards, which would 9 include a full job evaluation. The employer has submitted that the revlew will produce an appropriate determination of any distinction In the work of those Ambulance Officers in the Air Ambulance Service, and later, through negotlatlon and arbitration if necessary, an appropriate wage level. The union has responded that such a review will not necessarily focus on distinctions found in the Air Ambulance Service, and that it will take a long time for the review to produce a wage differential, if any. The union noted further that the distinctions it noted In support of its special case, were not challenged by the employer, and if the case has been made, that should be recognlzed at this time. We have reviewed a substantial amount of material on this Issue, including the agreement between the Ministry of Health and OPSEU respecting the review, and other documentation including clippings of the unfortunate accidents referred to above. The agreement is not directed in particular to the situation of Ambulance Officers in the Air Ambulance Service, although it may be considered as including that situation where it says in paragraph 1, that: "The employer agrees to revise the class standards for the Ambulance Officer series lncorporatlng.the responsibilities of Basic Life Support and Advanced Life Support in both land and air based provincial ambulance services as applicable." The issue before us may therefore, also be considered directly in that review, but it will be some time before that consideration is completed, and further time If any guestlon of wage differential for those In the air Ambulance Service goes to arbitration. At the moment, a documented and well- 10 s ,argued case in respect of such a differential 1s before us, and that case has not been challenged on the merits at this hearing. In view of the additional knowledge, skill and responsibilities involved, Including, for example: a knowledge of bare-medlclne (altitude) on a patlent, a consequent responolblllty to advise re flight altltude; the operation of advanced patient care equipment and care of the patient In a craft which may move In three directions, sometimes violently; and the regulrement to perform those skills in a dangerous and regrettably, sometimes fatal environment, we are satlsfled that the special case has been sufficiently made at this time. We also conclude that any agreed-to review is sufficiently indeterminate in its content and time-scale that it would be lnapproprlate to refuse to respond to this special case to await the results of such a review. We therefore award an increase of 5% to Ambulance Officers In the Air Ambulance Service effective January lst, 1989, for all pald hours lncludlng overtlme worked. Such increase Is in addltlon to the 6.5% general increase awarded above, for a total increase for that group of 11.5%. The ~unlon has requested a 1% increase ln wages to protect such wages from any increase in the employee’s contribution to the pension fund. In view of the fact that this issue has been raised in all the wage categories negotiated to date, but forms no part of any of the four negotiated settlements, we decline to make an award on this matter. . 11 The union has requested that we order this award to be implemented within thirty days of its date. The employer has responded by noting dlfflcultles in the implementation of an arbitration award, and proposed that the board order that the employer endeavour to Implement the board's award within fifty days of receipt, but in any event no later than sixty days of receipt of the award, and that the order be made a term of the agreement. We adopt the reasoning of prior boards on this matter, and order that the employer endeavour to implement thls award within fifty days of receipt, but in any event no later than sixty days of its receipt, and we further order that this requirement be made a term of the agreement. t on Rev The union has requested that the board order interest to be paid on the wage retroactivity to January lst, 1989. Its submlsslon is based on the further delay produced by compulsory arbitration when compared to settlements where there 1s a right to strlke. In support, it has produced a statistical summary prepared by the Ontario Ministry of Labour, as follows: 12 of -From to Ratification 200 or m 1965 79.3 145.2 195.5 1986 64.9 181.6 253.3 1987 70.6 132.6 260.3 1988 80.. 4 159.5 110.9 (234.1)* NOTE: If ratlflcation precedes or coincides wlth the expiry date, the number of days is zero. *Excluding the Nurses, who ratlfled their settlement before the explry date of their previous agreement. scuRcE: Ministry of Labour .~ The employer has responded that interest is punltlve in nature, that the delay is not the sole responsibility of the employer, and that such awards are infrequent or non-exlstent. We have considered at some length the posltlons summarised here, and view the question of interest as follows. First, it 1s quite clear on the basis of the data supplied that compulsory arbitration delays ratification. There is of course a further delay for implementation, but we cannot assume that that further delay is unique to compulsory arbitration. second, the delay in Ontario public sector settlements with right to strike has averaged under two hundred days for the last few years, and significantly under in some years. The payment or not of interest in such : 13 cases is a matter of exercise of economic power between the p3rtics. It has nothing to do with delay caused by compulsory arbitration. Third, the delay In Ontario public sector settlements with compulsory arbitration has averaged significantly over two hundred days from 1986 on (excluding the Nurses’ ratification shown In the table). It is a simple conclusion that the factor of right to strike maintains ratification wlthin a two hundred day wlndow, and the factor of compulsory arbitration extends ratlflcatlon well beyond that window. Fourth, delay in a right-to-strike system results from .an economic contest in which both parties bear varying degrees of responsibility for the . delay. It is highly likely, if not certain, that In practically every case, delay in the compulsory arbltratlon system, at least m two hundred days (for example), 1s largely attributable to delays in the compulsory arbitratlon process Itself. It would be hard to conclude otherwise on the data we have. Fifth, a compulsory arbltratlon system 1s not the choice of the parties: it 1s imposed by government, which wlshes to avold strikes. Government is therefore the inltlal and prime author of the &delay caused by compulsory arbitration, and It accordingly bears prime responslblllty for the financial loss caused by the m delay In payment of retroactive wages resulting from a consequent award. It is reasonable, fair, and just, therefore, that employees should be made whole, or compensate& for any loss they have suffered which arises directly from delay initiated primarily by a government policy of compulsory arbltratlon. Such employees have lost the use (and the opportunlty to Invest, 14 or ioay off interest-bearing debts) of their increase in wages, and they can be compensated for that loss by an appropriate award of interest on retroactive pay, expressly designed for the purpose of making them whole for the delay attributable to compulsory arbitration. We do not give any weight whatsoever to arguments that such an award is punitive. Its effect IS to make the employee whole in respect of wages for a delay occasioned by the employer, and in respect of work already performed, and it is no more punitive than any single payment of wages is. Wlth these prlnclples In mlnd, we make the following award wlth respect to interest. ~3 a first step in this area, the award is designed cautiously and with a limited reach, and we expect It to be subject to refinement if adopted again in future years, We award payment of simple interest on a px annum basis on the total retroactive wages with such interest cownclng on the day after two hundred clear days have passed since the expiry of the collective agreement herein (December 31st, 1988). The interest is to be calculated at the bank prime rate which exlsts on the two hundred and first clear day after expiry, or the first business day thereafter If that clear day Is not a business day, on one-half of the total retroactive wages owing at the date of their payment. Such interest to be paid at the same time as the retroactive wage payment required e.arller herein. That completes our award wlth respect to interest, but we would add the followlng for clarlficatlon. No interest 1s payable on retroactive wages which have been received wlthln two hundred clear dap of explry to the collective 15 aqeement, as any such delay Is not necessarily attributable to compulsory arbitration. The Ample interest formula, and its application to one-half the total of retroadlve pay, further reflect that principle, and the fact that the employees have not, of course, lost the use of the entire pay for the entire period. An example application would be as follows. For a collective agreement expiring on December 31st, 1988, two hundred clear days would have passed by the end of July 19th, 1989. If the bank prime rate on July 20th, 1989 were 7%, then simple interest at 7% per aMI.UII would be payable on one-half that total of ratrcactive pay when received by the employee, for exL~\pIc sometime in February, 1990. We remain seized to clarify any aspect of this award, and in particular, ,. to assist the parties if required in respect to our award on interest. Dated at Ottawa this \ 4 h day of ,&&AuQ, , A.D. 1940 D. Fraser, Chair George J. Milley, Employer Nominee (4.e i’a&~ &---MA&-J ’ Brian Switzman, Union Nominee T/0048/88 OPSEU and The Crown in Right of Ontario Institutional Care Category DISSENT George Milley Employer Nominee I have reviewed the award of the Chair and for the reasons which follow, I disapprove of the conclusions reached. GENERAL INCRES On the matter of salaries, no viable reason was given to justify increases beyond that of the other four Public service categories already negotiated. It does little for Collective Bargaining when one party refuses to accept the going rate in wage settlements, strikes out on its own to arbitration, and is awarded a higher increase than the other categories. Such a process is not one designed to promote voluntary settlements or to encourage free Collective bargaining. The award gives weight to the so-called deterioration of the rat.io'in salaries between Psychiatric Nursing Assistants and Counsellors on the one~hand and Registered nurses on the other. However, it was emphasized by the Employer and unchallenged by the Union that no conscious salary ratio between these groups has ever been recognized and even if one existed it was nothing more than a statistical coincidence. That this is so is confir- med by the fact that the first time such a ratio was claimed by the union was before the 1988 arbitration board. At that time, arbitrator Saltman referred to a decision Re The Crown in Right of Ontario and The Ontario Public Service Employees Union: -2- Maintenance Services Wage Bargaining Category, October IO,1985 (Kennedy unreported), wherein the said that a wage relationship to be valid, must be consciously established. Ms. Saltman dis- missed the Union,s claim stating: "In our.view, no historical relationshi e has been established as there is no indication hat the parties consciously bargained on the basis of a relationship between the P.N.A.'s and R.N.'s" Further, as stated by the Chair, there are approximately two coun- sellors for every P.N.A. and, notwithstanding the rates of the two classifications are the same, it is somewhat injudicious to suggest the rate of P.N.A., in these circumstances, should be used as a basis for increasing the rate of the vastly larger group of Counsellors. The award, on page 4, seeks to persuade the reader that Section 12(2)(c) of C.E.C.B.A. mandates the Board to consider the relation- ship between the P.N.A. and the R.N. in The Public Service on the one hand and the relationship between the Registered Nursing Assistants and Registered Nurses in General Hospitals on the other as being similar and.appropriate relationship& for salary comp- arisons. With respect, I think the author ought to spend a little more time on this. First, it needs to be determined what an "Appropriate Relationship" means. It is commonly accepted that in order to make a reliable judgement on such an issue, it would first be necessary to have some evaluation of the work, duties and responsibilities of the positions in question. No such evidence or evaluation was presented to the Board. WORKING CONDITION8 The award also gives weight to alleged difficulties in working conditions. Again, there was no evidence ofany changes or diff- iculties in working conditions of the vast majority of the employees - the Counsellors. Nevertheless, they are the benefic- iaries of whatever amount the award attributes to the working -3- conditions of the P.N.A."s. In fact, the Board is not in a position to give any weight to the factor of working conditions of the P,N.A.' s or anyone else without extensive evidence on the job content of the classifications. In The Public Service salaries are based on Class Standards and Job Specifications. While the Union asserted that working conditions were difficult and had deteriorated, no viable evidence was presented to substantiate this. No class Standards were presented to show that P.N.A.'s were performing work outside their class Standards nor was any comparison made to show that the work performed by today's P.N.A. is more onerous than that heretofore. The assessment or determination of working conditions requires a standard or specific criteria against which to measure it.It cannot be guided by self-serving newspaper clippings. This Board did not have such a standard or criteria; it was not established to undertake such a task and it did not go through that exercise. As such~,its concl- usion could not be anything less than wholly subjective and its recommendations unreliable. SPECIAL CASES: AMBULANCE OFFICERS - AIR The award grants an increase of 5% to Ambulance Officers in the Air Ambulance Service. In the circumstances, I can only regard this action as unfortunate, inexcusable and presumptuous. As the award outlines, a Job Evaluation, a review of Class Standards and negotiations affecting this classification are now in progress between the parties. In fact, documents have already been exchanged and reviewed. In its brief to the Board the Employer said: "It is this type of review which will provide the basis for a determination of the appropriate distinctions and wage levels in the Ambulance Officer Class Series. The Union is currently obtaining the required signatures from the grievors to finalize this agreement. The Employer. therefore, requests that the Board make no award with respect to this proposal." In the light of these facts and notwithstanding, the Chair, on page 9, states; n It will take some time before that consideration is -4- I . completed, and further time if any question of wage differential for those in the Air Ambulance Service goes to Arbitration. At the moment, a documented and well-argued case is before us, and that case has not been challenged on the merits at this hearing." I find it somewhat incredible that an arbitrator would knowingly so undertake to interfere with the normal process of C ollective Bargaining. Such an action could very well upset the delicate balances that normally exist in the bargaining process and comp- romise or prejudice the success of the whole effort. The function of the Board is to try and resolve problems between the parties, not to inject itself into situations where it does not belong and create them. The parties should be left free to conclude their negotiations..Nhether the process is long or short is not a matter forthe Board to involve itself in. The procedu-res dealing with Job Evaluation, Class Standards and consequent rates are adequately provided for in the collective Agreement and are not before this board for adjudication. INTEREST ON RETROACTIVE PAYMENTS The award of Simple Interest on the total retroactive wages, commencing on the 201st day following the expiry of the Collect- ive Agreement is, if nothing else, provocative. The Chair bases h is conclusion on a table showing the average number of days from expiry to ratification in Ontario Private Sector settlements; in the Public Sector with the right to strike; and in The Public Sector with cumpulsory arbitration. His analysis of the table leads him to the conclusion that delay in the cumpulsory arbitration system is largely attributable to the cumpulsory process itself. Sinc.e cumpulsory arbitration is imposed by the Government; Government bears the prime respon- sibility for the financial loss caused by the extra delay in -5- payment of retroactive wages resulting from the consequent award. Employees, therefore, should be made whole for any loss resuiting from the Government's policy of cumpulsory arbitration. We do 'not give any weight whatsoever, he says, to arguments that such an award is punitive. In passing, it might be noted that cumpulsory arbitration does not require ratification in the Public Sector herein and only rarely elsewhere. Respecting the matter of punitive awards, the Chair appears to be directly at odds with the opinion expr- essed by the experience arbitrator, Michel Picher, in his 1985 award for the Administrative Services Category: "It is well settled,that a board of arbitration or a labour board may make an-order for payment of in- terest as part of its direction for compensation. It may only do so, however, not punitive. .if its order is compensatory and In other words, the order for the pay- ment of interest is not conditioned on the conduct of the party against which the order is made, but is intended narrowly and exclusively to make the other party whole from a real financial loss it would other- wise suffer. This foregoing approach hs been scrupulously followed by both boards of arbitration and the Ontario Labour Relations Board in making compensatory orders of interest where it has been established that there has been a violation of the collective agreement or of the Ontario Labour Relations Act, as the case may be, with a resulting financial loss to the grieving party." (Emphasis added) Our: award purports to make the employee "whole" for the delay attributable to cumpulsory arbitration. But, from the foregoing quotation, it is clear that to be made "whole" the party would otherwise have to suffer a real financial loss. In the present case this is not so as it cannot be said that the non-payment of interest would be a financial loss. Clearly, one has to be cognisant of the difference between a "rights" dispute and an "Interest" dispute. TO conclude that the delay in cumpulsory ar bitration is attributable to the cumpulsory arbitration process itself in the Public Service appears to be an over-simplification. ., I ” I . I ‘-6- There are many factors which might shorten or prolong the negotiation process. For example: table 6 does not indicate whether the Public Sector cumpulsory arbitration data in column 3 includes negotiations on working conditions as well as wages. Since it does not exclude it, we must assume that it includes it. The number of fringe benefits and working condition issues contained in the Public service Agreements normally exceed those of the Private Sector agreements and as such would be expected to consume more negotiating time vith or without cumpulsory arbitration. It is a principle accepted by the parties that Public Sector increases ought to correspond to those of the Private sector. We have no way of knowing, therefore, what delays, if any, were occasioned by enabling the private sector to lead the way in some types of negotiations. It is also noted that in 1988, the Public sector with cumpulsory arbitration was well in advance of the public sector with the right to strike. More importantly, all eight categories comprising the service- wide bargaining unit of some 50,000 employees, of which Instit- utional care is but one, bargain separately for wages alone. Working conditions are also bargained separately and included in a Master Agreement covering the eight categories. Thus, in the Public Service there are two sets of negotiations covering each category,and this must invariably prolong the negotiating process. Conversely, private sector negotiations normally include both wages and working conditions simult~aneously. It appears, therefore, insofar as it applies to the Institutional Care category, the table is a mix of apples and oranges. As such, its benefit as a criterion cannot be considered reliable. If the table measured the elapsed time dealing with wage negotiations alone, excluding working conditions, the figures would’likely c be much less in the cumpulsory arbitration category. Thus, the information available from the table would appear to lack specificity and be unreliable data on which to establish payment of retroactive interest and on which to devise a formula for payment of such interest. Finally, who is to say that cumpulsory arbitration is less att- ractive to the employee, financially, than the right to strike? The award implies that this is so. But there are many factors which are not considered. What of the economic penalty suffered by the striking employee who walks the picket-line without pay? What~ of the employee who loses his job because of the marginal employer who closes his shop as a result of the strike? What of the consequent reduction in staff and layoffs following a strike? It can be argued with &me validity thatthe cumpul- sory arbitration Public Service employee enjoys the best of both worlds; He does not have to walk the picket line, yet. the principle is well established by arbitrators and scholars that he is entitled to and should be treated no less favourably in wage negotiations than his counterpart in the Private sector. It is also significant that each of the other four categories in the group renewed their agreements through negotiation WITHOUT payment of interest. It is strange that a proposition which is acceptable and fair across the table suddenly becomes unacceptable and unfair before an arbitration board! In the light of the above, the Chair's position that the Governmant as prime author of the extra delay bears the prime responsibility for the financial loss woul convincing. d appear to be something less than IMPLICATIONS OF INTEREST AWARD What are the implications of this unique award that employees be paid interest on retroactive wages commencing on the 201st day following the expiry of the Collective agreement? The most obvious one and perhaps the most serious is that it will tend to destroy any incentive on the part of the Union to reach a negotiated settlement. What do I. have to lose if I can go to arbitration and get interest on retroactive pay? Secondly, there is no automatic right that salary increases be made retroactive to the beginning of the new contract. The awarding of interest will, in all likelihood, stiffen the resolve of the Employer in future against retroactive salary increases. Third, the reasons for delays in the.negotiating process and many and varied. In a number of cases they are consensual and cannot be attributed to one party or the other. For example: a union may be in separate negotiations on behalf of two groups; one of 50 employees and one of 5000. Both sides may be undesirous of having the smaller group set the pattern of settlement for the large group and may thus agree to bide their time for the large group to settle first and set the pattern. In other instances, the union itself may see advantages in prolonging negotiations until other groups have set the pattern. In instances such as these, why should the employer be saddled with the responsibility for the delay and assessed the interest costs after 200 days? For the above reasons, with respect, I consider those parts of the award unacceptable for the reasons outlined. Respectfully December 27,1989 IN TNE NATTZR O? AN INTERART ARRITRATION UNDER TEE CROWN EMPLOYEES COLLECTIW BARGAINING ACT BNTNEtN: TEE CROWN IN RIGHT OF ONTARIO AND ONTARIO PUDLIC BRRVICA EMPLOYEES UNION MD IN TEE NATTER OF TEE IN8TXTUTIONAL CARE CATEGORY DISSENT-IN-PART There are certain very positive and long overdue improvements in this award with which I fully concur. After extensive review of the data the Chairman has awarded a cautious, first step approach of interest on retroactive monies owed to these employees. In so many other awards it has been recognized that retroactivity without interest is an incomplete award. Indeed as stated in weme Court of . . . I : pntario. Divisional Court De mer of the Judicial D reaarda to a deo ision of the Crme Settlerd (Oct. 1. 1985). arievances of McGill. at page 13; "The Crown is one of the 'parties' referred to in 8.19(1). Neither the agreement nor the Act authorize an award of interest in express terms, but the Board wa8 authorised to make a 'final and binding' decision as to *anv differences' between 'the parties'.' The Board did exercise its discretion to substitute reinstatement with compensation for lost wages: after deduction6 for income received from other employment, this loss extended back over several years. For reaeone etated earlier, failure to award interest in 1985 ~on'wages lost in earlier years means, in effect, that the g-rievors would receive only part of the value of the loss for which compensation was ordered. a mv obi.~&n that would amount to a~-failure 9f mstxe L * *. -such a tended bv the lea&.Latur e. Interest was one of the 'differences' that arose between the Crown and the grievors during the arbitration." (Emphasis added) Certainly in the very near future full interest payment on all retroactive monies owed must become the normal standard for compulsory arbitration. These employees did not choose this procedure. They ought not to be further penalieed by having the inherent cost and delay8 in this process all laid at their doorstep. The full payment of interest would restore a semblance of fairness to compulsory arbitration. For a future board of arbitration not to follow this lead would create a situation in which its very neutrality could be questioned. -, ‘. . 3 I am also in full agreement with the Chairman's award for those ir) the air ambulance service. It is eimply a canon of any bargained remuneration system, that adding additional requirements of knovledge, skills and responsibilities, ought to lead to an increase in wages. However, in two significant areas I must with respect, dissent from the award of the Chairman. The ambulance service directly organized under the Ontario Public Service is the second largest in Ontario - second only to the one in Metropolitan Toronto. All other local ambulance services in Ontario are significantly smaller than these two. In the past, certain chairman have not granted additional increases to the O.P.S. ambulance driver/attendants because they rejected a comparison with Metro workers and instead accepted a comparison with these other small ambulance services. I am pleased that the chairman in his award has not accepted this approach. However, he has chosen not to make any award.in this area. I cannot agree. Consistently the employer has claimed that the strike/lockout mechanism found in the.private sector ought to set the pattern for O.P.S. employees’ remuneration. Yet in this situation the employer will not recognise this approach. The Metro 4 ambulance drivers/attendant through their bargaining strength are paid mere than 14% higher than the O.P.S. employees who are prohibited by this employer from taking strike action. Instead the employer seeks to compare these employees with those who work in small, isolated units with far less bargaining strength than the O.P.S. could command. Surely common sense- says that under any labour relations bargaining reality the PIetro comparable is a compelling one. I would have narrowed the 14% difference by awarding 5% as an additional payment to all those in the O.P.S. ambulance service. .Finally, I am unable to agree with the Chairman's disposition of the general wage increase. These employees play a vital role in the provision of direct care to the citizens of Ontario. Their role is of such importance that they are denied the right to the usual collective bargaining resolution mechanism to obtain the remuneration they deserve. Within this category more than 75% of the employees are classified as Residential Life Counsellors or Psychiatric Nursing Assistants. They are involved in direct patient and resident care. As members of health care teams, which include registered nurses, they are directly involved in: the provision of physical and pey+ological treatments: the monitoring of the patient's or resident's progress; team analysis of the patient's or resident'6 health status; and all other facets of. the direct care programs. -, . 5 It is also' undisputed, that under the government's policy of deinstitutionalisation, those who remain for the provision of care in our public institutions requires the most intensive standards of care and in turn are often the oost difficult patients and residents to work with. Yet at the present, the top wage paid to these dedicated care givers is $12.89. At a time when the general labour factory rate in unionised 8hOp8 in this province is significantly higher, this present wage rate is simply unacceptable. I am pleased that the chairman has recognized the rignificance of the 75% ratio in regard8 to R.N. and the P.N.A. and Counsellor rates. A review of the wage rates produce the following: ComQari8on Of PW and RN )taximum Rate8 -- 1975-1988 1975 198.80 263.33 75.5 1976 218.00 288.83 75.5 t977 234.40 315.67 74.3 1978 247.20 339.08 72.9 1979 262.40 fS9.93 72.9 1980 292.80 392.32 74.6 aget 322.00 442.46 72.8 1982 365.20 499.08 73.2 1983 384.00 523.34 73.4 1984 406.80 s47.41 74.7 1985 426.60 S98.34 71.3 a986 460.00 623.47 73.8 1987 491.20 662.33 74.1 1988 939.60 734.48 72.2 I ‘! 6 Prom the mid 1970'S the 798 tie point is the Rode for the settlemmt with these employees. Then in the early 19801s during the period of the InflatfenN&t Act and u I6Q which followed, the government distorted this pattern. However, immediately after in an award chaired by Hr. H. Brown the 75% ratio wae just about completely r.estored. Yet in 1986, in a decision of a board chaired by Ms. Jane Devlin, she did .not pursue the hietorical tie point and based on reasoning with which I cannot agree she awarded a lower rate of pay for these employees. Directly after this award, the parties took this issue into their own hands. On their own agreement, without resort to arbitration, in a two year deal spanning 1986 and 1987, the parties agreed to increases which closed the differential to 74.1%. Surely that must be a most significant consideration for our board. The employer has argued that a tie point between difSerent categories of employees must be based an job comparability and on evidence to chow that this tie point was patently enunciated in the parties bargain. These arguments must be rej ecbd . In establishing the 75% tie point between R.N.'s and R.N.A.'s in the public hospftaIs, Kevin Burkett in his 1977 Wellesley Hospital/O.N.A. Award required neither of the conditions argued by the government in this case. Rather Mr. Burkett stated; 7 "The board has chosen the RNA classification as the appropriate tie point. The Board has 8414Ct4d this tie point for the following reasons. Firstly, the registered nursing assfetant belongs to the same work group as the regietered nurse. Secondly, the registersd nursing assistant is a member of the service unit which includes classifications found in the private sector. the registered Thirdly, nursing assistant is covered by a collective agreement extending to March 31, 1978 and fourthly, there is evidence before the Board which establishes the existence of a historical differential of 74 per cent or 75 per cent between the start rates for the registered nursing assistant and the registered nurse on the basic of weighted average monthly rateo, the parties themselvee negotiated a differential of just under 75 per cent for the 1975 calendar year." Surely these patient and dedicated employees ought to receive the appropriate consideration from the arbitration process. At the very least I would have awarded an increase to this category sufficient to bring the P.N.A. and the Residential Life Counsellors up to 75% of the R.N.'8 maximum rate. Dated at Toronto, Ontario this 16th day of January, 1990. Respectfully submitted, Brian Switz Union Nominee