HomeMy WebLinkAboutUnion 12-11-29IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SECTOR EMPLOYEES UNION, LOCAL 570
-AND-
MOUNT SINAI HOSPITAL
benefits grievance 2011-0570-0006
Mary Ellen Cummings, Arbitrator
Appearances:
John Brewin and Bryan Mitchell for the union
Shane Smith and Barb Griffin for the employer
Hearing held November 13, 2012 at Toronto
Award issued November 29, 2012 at Georgetown
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AWARD
1. The Ontario Public Service Employees' Union asserts that Mount Sinai Hospital
breached the collective agreement in making a unilateral change to a benefit. The
Hospital imposed a limit on the number of shifts of private duty nursing employees are
entitled to claim in a year. The Hospital responds that it was entitled to make the change.
Background Facts
2. A few years ago, an employee in a bargaining unit represented by the Ontario
Nurses Association made a claim for private duty nursing to care for a spouse with a
chronic illness. The claim was paid, on an ongoing basis by the Hospital's insurer, Sun
Life Financial, in the amount of more than $10,000 a week. There was no limit or
maximum to the benefit.
3. In 2009, the Hospital changed carriers for the benefits of all of its employee plans
to Great West Life. The new insurer required the ONA member to reapply for the private
duty nursing benefit. The claim was denied on the basis that the Great West Life plan had
an exclusion and would not provide the private nursing benefit in respect of a chronic
condition.
4. ONA brought a grievance to arbitration. In Mount Sinai Hospital and the Ontario
Nurses Association, (2010) 197 L.A.C. (4th) 228, Arbitrator Stout held that the Hospital
had violated the ONA collective agreement. The arbitrator held that the exclusion in the
Great West Life plan had not been a feature of the Sun Life Financial plan. The ONA
collective agreement permitted the employer to change benefit carriers "...provided that
the level of benefits conferred thereby are not decreased". Arbitrator Stout concluded that
the limitation on private duty nursing for chronic care conditions was a decrease in the
level of benefits and so the Hospital had breached the collective agreement. At page 238
he wrote:
I accept that providing unlimited private duty nursing care is not usual or ordinary. I also
acknowledge that the cost associated with this benefit is extraordinary in the circumstances of
this case. However, the clear language of the Sun Life Plan and the manner in which it was
applied indicates that this was the level of benefit enjoyed prior to the carrier being changed to
Great West Life.
5. On May 2, 2011 the Hospital gave notice to OPSEU that effective July 4, 2011, it
would "implement a change to the extended health care plan to address the "unlimited"
private duty nursing benefit”. The Hospital wanted to cap the benefit at 90, 8 hour shifts
in each calendar year. The Hospital gave similar notices to all of its bargaining agents.
The Hospital and the other bargaining agents have been able to resolve the matter.
6. It is common ground that private duty nursing is a little used benefit in the
OPSEU bargaining unit and there is no record of a claim in the last 10 years.
The parties' positions
7. OPSEU filed this grievance. OPSEU asserts that the Hospital has breached the
collective agreement in two ways. First, it asserts that Article 20.02 permits the Hospital
to change insurance carriers "...provided the benefits are equivalent and are neither
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reduced or increased". OPSEU argued that the Hospital violated that provision because
the benefits under the Great West Plan are reduced: unlimited private duty nursing is to
be replaced by a limited 90 shifts of 8 hours. The Hospital counters that this provision is
not relevant. When it changed carriers in 2009, the unlimited private duty nursing that
had been a feature of the old plan was retained. The Hospital argued that it was not until
2011, after the issue arose in the ONA bargaining unit, that it sought to impose a
maximum on the private duty nursing provision. The Hospital argued that the relevant
provision is Article 20.01:
The Hospital agrees to contribute towards the premium coverage of participating eligible
employees in the active employ of the Hospital under the insurance plans set out in Article 20.01
subject to their respective terms and conditions....
(b) Extended Health Care
The Hospital shall contribute on behalf of each eligible employee seventy-five percent (75%) of
the billed premium under the Extended Health Care Plan (Liberty Health $22.50 (single) and
$35.00 (family) deductible plan including hearing aids with a maximum of the cost of
acquisition once in every thirty-six (36) months per person and vision care with a maximum of
$200.00* every twenty-four (24) months per person, or its equivalent) provided the balance of
the monthly premium is paid by employees through payroll deduction. Any Hospital currently
paying more than seventy- five percent (75%) of the premium shall continue to do so. The drug
formulary shall be as defined by Liberty Health Formulary Three.
The Extended Health Care Plan shall provide for chiropractic, massage therapy and
physiotherapy to a maximum of $300 per insured person annually for each service.
The Extended Health Care Plan shall be amended to provide for one (1) optometry exam every
twenty-four (24) months (up to a $50 maximum**).
The Extended Health Care Plan shall be amended to provide for the option to use the $200*
vision care toward the cost of laser surgery.
The Extended Health Care Plan shall be amended to provide for a prescription drug dispensing
fee cap of $9 per prescription.
The Extended Health Care Plan shall be amended to provide for mandatory generic drug
substitution.
* Effective January 1, 2010, the Extended Health Care Plan shall be amended to provide for a
vision care maximum of $300 per insured person every twenty-four (24) months.
**Effective January 1, 2010, the Extended Health Care Plan shall be amended to provide for one
(1) optometry exam every twenty-four (24) months (up to a $100 maximum).
8. The Hospital submitted that it is obliged to pay premiums under the Extended
Health Care Plan (Liberty Health) "or its equivalent." The union agrees that Article 20.01
is relevant and that the employer has breached it. However, as set out above, the union
also alleged that Article 20.02 is relevant and the employer has breached that provision.
9. Both parties agree that the Liberty Health Plan has not existed since the mid
nineties. However, the employer has a document that it understands constituted the
Liberty Plan around 1995 and the union did not really dispute its authenticity.
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Comparing the benefit plans
10. The employer led evidence through its benefit consultant, Brian Girvan,
Executive Vice-President, Burke and Company. It is not disputed that the Hospital's
Great West Life plan is superior to Liberty Health in a number of ways. The Great West
Life plan provides superior speech therapy, and massage therapy benefits. It provides
benefits not contemplated in the Liberty Health Plan such as chiropractic, osteopathy,
chiropodist, naturopathy. The Great West Life plan covers fertility and smoking cessation
benefits. The Great West Life plan provides superior hearing aid, eyeglass and eye exam
benefits. The Great West Life plan offers out-of-Canada emergency medical coverage,
which was not part of the Liberty Health Plan.
11. Mr. Girvan testified that the benefit plan is designed to place emphasis on benefits
that employees use a lot. Those benefits include prescription drugs, vision care, massage
therapy and orthotics. Mr. Girvan acknowledged that many of those benefits are
specifically mandated by the collective agreement, but other highly utilized benefits, such
as fertility treatments, are provided in the Great West Life plan even though not
mandated by the collective agreement.
12. However, the Liberty Health Plan also provided private duty nursing with no
limitation. As set out above, Hospital proposes to limit the private duty nursing benefit to
90, 8 hour shifts each calendar year.
The parties' submissions
13. The union submitted that the employer violated the collective agreement in
unilaterally reducing the level of private duty nursing. The employer violated Article
20.02 in changing insurance carriers and reducing benefits. The employer also violated
Article 20.01 in failing to provide an "equivalent health care plan". The union rejected the
relevance of the employer's comparison of the Great West Plan to the Liberty Health
plan. The union argued that the Liberty Health Plan, now out of existence, has been
superseded on a number of occasions. The proper comparison is not to the Liberty Health
Plan as it may have existed in 2005, but to the most recent benefit plan as found in each
iteration of the collective agreement. Such an analysis makes practical sense, the union
argued, because the parties have bargained to ensure that the employer maintain
equivalent benefits to those in place, not equivalent to an out of date and obsolete plan.
14. The union submitted that the employer has not met that collective agreement
obligation because the Great West Life plan is not equivalent to the Sun Life plan in one
very important respect; the new plan limits the private duty nursing benefit. While the
union understands that private duty nursing is not a much used benefit, the circumstances
of the ONA bargaining unit member highlight how important that benefit can be for an
employee faced with a long term need for such a benefit.
15. The union also resisted the employer's characterization of the new benefit plan as
equivalent to or superior to the former one, when all of the benefits are compared.
Counsel for the union argued that it is inappropriate for the employer to unilaterally
decide that improvements in one benefit area are better or more valuable than a benefit
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limitation in another area. Counsel for the union argued that such decisions should be
addressed in bargaining, where the union can participate in the balancing.
16. The employer submitted that the case law establishes that employers have the
right to unilaterally change aspects of benefit plans. In Labatt's Ontario Breweries and
Brewery Malt and Soft Drink Workers, Local 304 (August 10,1990), Arbitrator Knopf
noted that if employers could not change benefit plans, employees would not see medical
and technological advances. However, if the policy of insurance conflicts with the
collective agreement, the collective agreement prevails. "It is clear that the Employer can
amend the policy so long as the amendment does not place it in a position of conflict with
the collective agreement". Counsel for the Hospital argued that in the case before me
there is no conflict with the collective agreement because the private duty nursing benefit
is not one prescribed by the collective agreement. So long as the overall plan is
equivalent to the Liberty Health plan, the employer can make changes to the benefit plan.
17. The employer also relied on Jacuzzi Canada and United Steelworkers of America,
Local 9042 [2000] O.L.A.A. No. 590 (Tacon) which interpreted the words "equivalent
level of benefits" in deciding whether the employer's changed weekly indemnity plan
complied with the collective agreement. In comparing the old plan to the new plan, the
arbitrator considered not just the level of benefits but the eligibility criteria. She
concluded that because the eligibility criteria were substantially the same, though not
expressed in the same words, the employer's new plan provided an equivalent level of
benefits.
18. Counsel for the employer argued that the Great West Life plan was at least
substantially the same as the Liberty Health plan referred to in the collective agreement
and in many respects, was a superior plan.
19. Counsel for the employer submitted that when arbitrators compare benefit plans,
they compare the basket of benefits. In Hotel-Dieu Grace Hospital and Ontario Nurses
Association [2005] O.L.A.A. No. 307, Arbitrator Burkett talked about the challenge of
determining whether a newly introduced benefit plan was "comparable" to a named plan.
He said that the named plan sets "...the threshold or standard below which extended
health care benefits cannot fall. The Hospital is required to contract for an extended
health care benefit plan that is at least as beneficial to the covered employees as the
threshold or standard"(paragraph 8). In making that comparison, Arbitrator Burkett
submitted that a comparison of the basket of benefits was consistent with the parties'
intention that the benefits plans be "comparable" as opposed to identical. He added that
"...in the context of an extended health benefit plan under a centrally negotiated collective
agreement, an item by item comparison would significantly diminish the capability to
fashion an extended health care plan that, having regard to age, gender, and other
demographics, would best suit the needs of the local employee population". However, in
arriving at his decision, Arbitrator Burkett made a line by line comparison of the orthotics
benefits and did not apply the basket comparison.
20. Similarly, in Windsor Regional Hospital and Ontario Nurses Association [2006]
O.L.A.A. No. 424, Arbitrator Samuels agreed with the basket approach to comparing
benefit plans, quoting Arbitrator Burkett. However, Arbitrator Samuels said that
approach was not appropriate when looking at a benefit that was specifically provided for
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in the collective agreement. He noted that Arbitrator Burkett was considering levels of
orthotics coverage, which were not stipulated in the collective agreement. In contrast,
Windsor Regional Hospital concerned the imposition of a per visit maximum on
chiropractic and massage therapy. The collective agreement stipulated the benefit, with
an annual maximum but no per visit maximum. Arbitrator Samuels held that because the
collective agreement established the elements of the coverage, a basket type of
comparison across benefits was not appropriate.
Analysis and reasons
21. First, I conclude that Article 20.02, which addresses the circumstances in which
the employer can change benefit plan carriers, does not apply. The Hospital changed
carriers in 2009. There is no dispute that the new carrier, Great West Life provided a
private nursing benefit with unlimited coverage. The new plan provided the same benefit
as the old plan. The Hospital did not seek to impose limits on the coverage until May
2011, almost two years after the change of carrier. This is not a question of whether the
new carrier is providing the same benefits.
22. Instead, having regard to Article 20.01, I must determine if the Hospital is paying
premiums for the Extended Health Care Plan (Liberty Health) or its "equivalent". I reject
the union's argument that the appropriate comparison of the Great West Life plan is to its
immediate predecessor, the Sun Life Plan, which was in place at the time the collective
agreement was negotiated. With respect, that is not the language the parties chose.
Instead, they chose to compare any new plan that an employer might select with the
known Liberty Health plan. Presumably, the parties wanted to maintain the same fixed
standard or threshold to measure any changes against. It is arguably easier to measure
change against a fixed standard instead of the moving target of whatever plan was in
place when the collective agreement was last negotiated. In any event, the parties
continue to specifically refer to the Liberty Health plan in their collective agreement and
as this arbitration showed, the parties can locate and identify what that is for the purposes
of comparison.
23. Consequently, my task is to determine whether the Great West Life plan is
equivalent to the Liberty Health plan. And in making that determination do I look at all of
the components of each plan and make a comparison on a basket approach, or only
compare the private duty nursing benefits?
24. As set out above, although Arbitrators Burkett and Samuels advocated applying a
basket approach when looking at benefits to determine if plans were comparable, neither
arbitrator applied that approach and Arbitrator Samuels said that it was not an appropriate
approach when the particular benefit, and its features, were mandated by the collective
agreement. In the case before me, the private duty nursing benefit is not mandated by the
collective agreement so I do not need to address that concern.
25. This is a difficult case to decide. There is no question that the Great West Life
plan is, in many respects, superior to the Liberty Health Plan, when taken as a whole, as I
outlined in paragraph 10. However, if I compare the private duty nursing benefit on its
own, the proposed change by the employer would make the private duty nursing benefit
inferior to the benefit in the Liberty Health plan. The employees would be left with a
benefit capped at 90, 8 hour shifts a year, instead of a benefit with no annual usage cap.
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On the one hand, it is not a benefit that has been used by this bargaining unit, but as an
ONA member has experienced in this workplace, when the benefit is needed and used, it
is valuable. This valuable benefit is also expensive when it is used; the ONA member
claimed a benefit that cost $10,000 a week, for an unlimited period.
26. High experience costs in benefit plans affect both the employer and the
employees. In this bargaining unit, both the employer and employees pay the premium
costs. High experience costs affect future premium rates and can imperil an employer's
ability to purchase the same level of insurance benefits at reasonable rates.
27. I cannot delineate the circumstances, if any, when it would be appropriate to
assess whether a benefit or a benefit plan is comparable to another, using the basket
approach comparison, as advocated but ultimately not used, by Arbitrators Burkett and
Samuels.
28. The background to this case, that is, high usage of the benefit in one bargaining
unit, causing the Hospital to seek to cap the usage in all of the bargaining units, properly
focuses me on the particular benefit. I believe it is appropriate to look only at the private
nursing benefit in the Liberty Health Plan and the Great West Life plan and decide if they
are “equivalent”.
29. I recognize and accept Arbitrator Knopf's view in Labatts Ontario Breweries
(above) that unless employers are able to change benefit plans, employees would not be
able to enjoy medical and technological advances. But she also acknowledged that where
the plan amendment places the policy of insurance in conflict with the collective
agreement, the collective agreement prevails.
30. That brings me back to the specific question before me: does the implementation
of a cap on the private duty nursing benefit mean that the Great West Life plan is no
longer "equivalent to" the Liberty Health Plan? I conclude that the answer is yes. Looking
only at the private duty nursing benefit, the implementation of a cap on the benefit
changes the benefit in a significant way and reduces its value to employees who want to
use it. In my view, that change means that the new benefit is not equivalent to the benefit
as it was under the Liberty Health plan.
31. I have been convinced by the union's argument that it should participate in the
consideration of this change to the benefit plan. The union should have an opportunity to
think about whether a cap on the benefit (which is not unusual) is appropriate for this
bargaining unit, when balanced against other factors such as cost, usage and the impact
on other features of the benefit plan. These workplace parties have seen, in the ONA
bargaining unit, both the advantages and costs of a private duty nursing benefit without a
cap. With that experience the Hospital and OPSEU can together consider their options
for the future.
Disposition
32. I conclude that the Hospital's proposed implementation of a cap on the private
duty nursing benefit results in an extended health plan that is not equivalent to Liberty
Health. I find, therefore, that the Hospital has violated Article 20.01 of the collective
agreement.
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33. As the parties requested, I remain seized to deal with any implementation or
remedial issues.
Signed at Georgetown, Ontario, this 29th day of November 2012.
Mary Ellen Cummings