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HomeMy WebLinkAboutCarey 18-02-07In the matter of an Arbitration Between: Ontario Public Service Employees Union - Local 425 and Brockville General Hospital (Grievance of Carey) Andrew Tremayne, arbitrator AlDvearances Michael Fisher, Chris Carey, and Elizabeth McIntosh for the union Colin J. Youngman, Linda Peever, Pat Lewis, Keiron Rees, Bridget Mangan, Angel Smith for the employer Hearing held in Brockville, Ontario on January 10, 2018 Award issued on February 7, 2018 at Ottawa, Ontario 1. The grievance claims that the employer has violated the parties' Collective Agreement by not compensating the grievor appropriately. This is an award on the employer's preliminary motion that even assuming the facts asserted by the union to be true, there cannot be a violation of the Collective Agreement. 2. 1 have carefully reviewed the evidence and considered the parties' submissions. For all of the reasons set out below, I find that the employer's objection to this grievance succeeds, because there can be no violation of the Collective Agreement. The grievance is therefore dismissed. Background and Evidence 3. The grievor is a Registered Social Worker on the Assertive Community Treatment (ACT) team at the Brockville General Hospital. The ACT team provides mental health services. The team is a multidisciplinary group which includes employees from different classifications, and the grievor is classified as a Peer Support Worker. The union says that the duties and responsibilities of all members of the ACT team are substantially the same, however the grievor is in a classification which receives a lower wage rate than the classifications of other members of the team. The union has filed a grievance on his behalf, claiming that the employer is not compensating the grievor fairly. 4. The employer objects, saying that even assuming that these facts are true and taking the union's case at its highest, there cannot be a violation of the Collective Agreement. In other words, the employer asks that the grievance be dismissed because the union has not made out an arguable or prima facie case. S. The parties agreed that I should decide the employer's preliminary motion on the basis of written particulars that the union provided to the employer before the start of the hearing. These particulars are attached to this award as "Appendix A" and I have assumed that all of the facts that are set out in this attachment can be proven. In other words, this ruling is based on the union's "best case scenario". To provide context, I will briefly outline some background facts, none of which are in dispute, and summarize the key points of the union's case. 6. ACT is a client -centered, recovery -oriented mental health service delivery model that is in use throughout the province of Ontario. ACT services are delivered by a group of multidisciplinary mental health staff, and the grievor's team includes Registered Nurses, Social Workers, a Recreational Therapist, a Vocational Therapist, and a Concurrent Disorders Specialist. 7. The grievor is classified as a Peer Support Worker. Other members of the ACT team are in different classifications, and the wage rate for the grievor's classification is lower than some of the other team members' classifications. For example, the grievor's work resembles the work of the Vocational Therapist, but the grievor is paid less than this other member of the team. 2 S. A substantial percentage of the work performed by all members of the ACT team is essentially the same. All members perform identical clinical duties, including assessments, administration of medications, and service coordination. The balance of the work is based on the team members' respective disciplines. 9. There are Peer Support Workers in other programs at the Hospital, but they do not perform the same amount of clinical work or provide the same specialized services as the grievor. In other words, the grievor is performing higher -rated clinical work (as are the other members of the ACT team) but he is in the same classification as employees who provide less specialized services which are more aligned with a lower -rated "mentorship" role. 10. The grievor applied for the position of Peer Support Worker with the ACT team in January 2016. The "Qualifications and Related Experience" listed in the job posting include, among other things, "Regulated Health Professional (RN, RPN, OT, etc)". [The parties agree that this means membership in a Regulated Health Profession.] When the same position was posted in 2014, membership in a Regulated Health Profession was not a required qualification. When the grievor applied for the position, he had all of the required qualifications and related experience except for this one, because he had not yet completed his Bachelor of Social Work (BSW) degree and he could not register with the Ontario College of Social Workers until he had done so. He disclosed all of this during the application process. 11. The grievor was nevertheless the successful candidate, and he was offered the position in late February 2016. The employer told him that the role would be considered temporary until he provided proof that he had registered with the Ontario College of Social Workers. The grievor received his BSW in July 2017 and registered with the College soon thereafter, at which time he was confirmed in the position. Submissions 12. The grievance alleges that the employer has violated Article 25.01 of the parties' Collective Agreement. I have underlined the section of the article that is most relevant to this matter: ARTICLE 25 - COMPENSATION 25.01 (a) When a new classification in the ba[gaining unit is established bv the Hospital, or the HosipitaI makes a substantial chane in the lob content of an existing classification the Hospital shall advise the Union of such new or substantially changed classification and the rate of pay which is established. If so requested within thirty (30) calendar days of such advice, the Hospital agrees to meet with the Union to permit the Union to make representations with respect to the appropriate rate of pay, providing any such meetings shall not delay the implementation of the new or substantially changed classification. Where the Union challenges the rate established by the Hospital and the matter is not resolved following the meeting with the Union, the matter may be referred to arbitration in accordance with the arbitration provisions contained in this collective agreement, it being understood that any arbitration board shall be limited to establishing an appropriate rate based on the relationship existing among other classifications within the Hospitals and the duties and responsibilities involved. It is further understood and agreed that when determining the appropriate rate, primacy must be given to the relationship between job classifications covered by this collective agreement and that such relativity must be maintained. Each change in the rate established by the Hospital either through meetings with the Union or by a Board of Arbitration shall be retroactive from the time at which the new or substantially changed classification was first filled. 13. The employer submits that the Article 25.01(a) is not a broad, open-ended classification clause. It is very restrictive, and triggered only when one of two very specific conditions are met: either the hospital establishes a new classification in the bargaining unit; or the hospital makes a substantial change in the job content of an existing classification. The parties agree that this is not a new classification, so the union must show that the second condition has been triggered, argues the employer, and none of the facts in "Appendix A" support the allegation that there has been a substantial change in the job content of the Peer Support Worker classification. 14. Rather, the facts pleaded by the union center on the allegation that the grievor is not being compensated appropriately, submits the employer. These facts may support an allegation that the grievor is not properly classified, the employer says, but they do not disclose a case that there has been a substantial change in the job content of the grievor's classification, which is the test that the union must satisfy to ground a violation of Article 25.01(a). 15. Moreover, at least part of the substantial change must occur during the lifetime of the Collective Agreement that is in force when the grievance is filed, argues the employer. In the matter before me, the grievance was filed on June 12, 2017, which places it firmly in the ambit of the parties' current Agreement, which runs from April 1, 2016 to March 31, 2019. This is important, the employer submits, because the union has alleged that the qualification that the successful candidate be a .member of a Regulated Health Profession is a substantial change in the content of the job, but that qualification was introduced at the time the position was posted, which was before the current Collective Agreement came into force. 16. The employer also argues that in any event, a change in the qualifications for a position is not a change in job content, and it cites Ontario Public Service Employees' Union (Re: Hanson) and Brockville General Hospital (Leighton) [2009] O.L.A.A. No. 74 in support of the proposition that a change in the method of doing an existing job duty does not always lead to a change in classification. On the facts of that case, the arbitrator also concluded that a change in the job qualifications did not alter the job duties and responsibilities, says the employer. This award follows the reasoning of Arbitrator Kaplan in Ottawa Hospital and 4 Ontario Public Service Employees Union (Job Description Grievance) [2003] O.L.A.A. No. 509, the employer submits. 17. A recent case decided by Arbitrator Slotniek is directly on point, the employer argues. 1n Hamilton Health Sciences and CUPS Local 7800 (Re: RPNs) 2013 CarsweIlOnt 8776, 115 C.L.A.S. 64, 233 L.A.C. (4h) 200, the grievance concerned the pay rates of RPNs who were performing duties that were essentially the same as those performed by employees in another higher paid classification. The collective agreement language in that case was not materially different from the language in Article 25.01(a). The only evidence of change was an increase in the wage rate for the higher classification, and the arbitrator concluded that this was not a change in the job content of the grievors' positions. There was some evidence to support an argument that the grievors would be more appropriately classified at a higher level, but Arbitrator Slotnick held there was no basis in the collective agreement to intervene in the situation, so the employer's argument that the grievance could not succeed was upheld and the union's grievance was dismissed. 18. The union submits that the position of Peer Support Worker changed substantially when the employer introduced the qualification that the successful candidate must be a member of a Regulated Health Profession. The employer also introduced 2 additional requirements at that time: 2 years' experience providing services to adults with a serious mental illness; and previous experience on an ACT team (preferred). Taken together, these new requirements mean that the grievor performs a higher caliber of work requiring a higher Ievel of skill compared to his predecessor. The work that the grievor performs is qualitatively different but the classification has not changed, says the union, so he is not being properly compensated for his work. 19. Moreover, the grievor was not confirmed in the position until he became a member of the Ontario College of Social Work, and this happened during the term of the current Collective Agreement. Once he became a member of the College, he became subject to professional standards of care and the oversight of a regulatory body, and this is a substantial change. This brings the grievance within the scope of the parties' current Agreement, argues the union. 20. The grievor is paid substantially less than some other member of the ACT team although all members of the team perform substantially the same work. Peer Support Workers in other programs at the hospital do not perform the same amount of clinical work as the grievor, nor do they provide the same specialized services as the grievor. The grievor is more of a Peer Support Specialist than a Peer Support Worker, argues the union, and it is fundamentally unfair for him to be classified as the latter. 21. This is particularly troubling, the union submits, because one of the requirements for the position is direct experience and knowledge as a consumer of mental health services. The grievor has this experience, although it is not required for any of the other members of the ACT team. The "bar for entry" to the grievor's position is higher than it is for the other members of the team, the union argues, but the employer is paying a wage rate that is more 5 suited to a lower rated position. If the grievor has been improperly classified, says the union, then the employer exercised its management rights unreasonably. 22. The union does not take issue with the way that very similar relevant collective agreement language was interpreted by Arbitrator Slotnick in the Hamilton Health Sciences award, although that case can be distinguished on its facts. In that case, the parties agreed that the only change had been a wage increase for the higher rated classification as the result of an interest arbitration award, so there was no question that the grievors' duties had not changed. In the case that is before me, argues the union, there has been a substantial change to the grievor's duties, although it has been a gradual change as the grievor has become better skilled at his work. 23. The union also relies on the following awards: Sault College and Ontario Public Service Employees Union (O'Neill) 2012 CanLII 97660; Cambrian College and Ontario Public Service Employees Union, Local 655 (Davie) April 15, 2014 (Unreported); Stackpole Ltd. and United Steelworkers ofAmerica Local 13571, 2003 CanLII 52827 (Slotnick); University Health Network - Toronto Western Hospital and Canadian Union Of Public Employees, Local 5001 (Knopf) 2017 CanLII 82795; and Highland Beverages Ltd. and United Brewery Workers (Weatherill) 1984 CarswellOnt 2440, 13 LAC (3d) 349. 24. The first three cases emphasize that the threshold for making out an arguable or prima facie case is very low, and that a motion to dismiss a grievance without hearing further evidence should not be granted if the union's theory based on the facts has a possibility of success. In the University Health Network case, submits the union, the employer raised a preliminary objection to the arbitrability of the grievance, asserting that allegations did not relate to the application, interpretation, or administration of the collective agreement. The arbitrator found that there was a connection between the grievance and the collective agreement, including the employer's exercise of its management rights, and ruled that the allegations raised a basis for accepting jurisdiction over the dispute. The union relies on Highland Beverages in support of the proposition that management's right to classify employees should not be interpreted as the right to classify employees in any manner whatsoever. Analysis 25. It is clear to me that as a member of the ACT team, the grievor provides a valuable service to the Hospital and to the community. I have no doubt that he is a dedicated and hard- working employee. But the matter I must decide is whether there could be a violation of the Collective Agreement assuming that the facts set out in Appendix "A" are true and taking the union's case at its highest. 26. Rates of pay for existing classifications are usually decided by the parties during collective bargaining, and arbitrators have accurately described a provision such as Article 25.01(a) as a mechanism for changing rates of pay in exceptional circumstances, namely during the life of collective agreement. In the hospital sector (and some others), an interest arbitration resolves the dispute if the parties cannot agree on the terms of their collective agreement. Real or perceived iniquities in pay, which are normally brought to the bargaining table, can be addressed between bargaining sessions through the grievance (or rights) arbitration process, but only in very limited circumstances. For these parties, the circumstances are clearly described in Article 25.01(a), and because the parties agree that this is not a new classification, the only possible circumstance that could be relevant is if the Hospital has made "a substantial change in the job content of an existing classification". 27. With this in mind, I will briefly address the union's argument that the employer has exercised its management rights unreasonably when it classified the grievor as a Peer Support Worker. The purpose of setting out wage rates by job classification in a collective agreement is to ensure that employees are paid at a wage rate that is appropriate to the work that they perform. The management rights language in the parties' Collective Agreement confirms that it is the exclusive function of the Hospital to classify employees and to determine job rating or classification, subject to any other relevant provisions in the Collective Agreement. It is generally accepted that as long as the employer exercises these rights in good faith and for valid business reasons there is no breach of the collective agreement. 28. The facts in Appendix "A" describe the grievor's situation. He performs the same work as the other members of the ACT team, some of whom are in higher rated job classifications and are paid more than he is. The employer introduced new requirements for qualifications and related experience to the position, and the grievor is the first Peer Support Worker on the ACT team who was required to be a member of a Regulated Health Profession. In my view, even if these and the other facts on Appendix "A" are assumed to be true, they could not support an allegation that the employer has exercised its management rights in an unreasonable or unfair manner. 29. With respect to whether Appendix "A" discloses a violation of Article 25.01(a), the question is whether these facts, assuming them to be true, could support the allegation that the Hospital has made a substantial change to the job content of the Peer Support Worker position. I accept that the threshold for making out an arguable or prima facie case is very low, and that if the union's theory based on the facts has a possibility of success, a motion to dismiss a grievance without hearing further evidence should not be granted. I also accept that the question of whether the change is substantial is a question of fact that must be addressed in a hearing on the merits. In other words, if the facts in Appendix "A" disclose any change at all (and not just a substantial change) in the "job content" then it would not be appropriate for me to allow the employer's motion and dismiss the grievance without further inquiry. 30. There is no dispute that the grievor became a member of the Ontario College of Social Work during the term of the current Collective Agreement, and I turn now to the question of whether this resulted in a change in the job content of the grievor's classification. 31. In my view, the term "job content" means the substance of the job, what the job consists of, or the constituent elements of the job. On the other hand, the "qualifications" for a position are generally understood to be what is needed to perform the duties and N responsibilities of the position, or what the ability to perform the duties and responsibilities of the position is dependent on. 32. The union argues that when the grievor became a member of the Ontario College of Social Work, his work became subject to professional standards of care and the oversight of a regulatory body. But there is no evidence before me that this ever triggered a change in the substance of the job, what the job consists of, or the constituent elements of the job. 33. The grievor was offered the position in late February 2016. The employer told him that the role would be considered temporary until he provided proof that he had registered with the Ontario College of Social Workers. He received his BSW in July 2017, registered with the College, and was confirmed in the position. There is no evidence that the grievor's duties and responsibilities were any different when he was considered temporary than they were after he was confirmed in the position. That is, when the employer changed what was needed to perform the duties and responsibilities of the position, there was no accompanying change to the substance of the job or what the job consists of. 34. There is no dispute that membership in a Regulated Health Profession was a new qualification for the Peer Support Worker position when the grievor applied for it January 2016. It is theoretically possible that the introduction of this (and other) new requirements for the position could have caused a change to the job content of the classification. But these new requirements were introduced before the parties' current Collective Agreement came into force, so any such change would not be covered by the grievance. In any event, for reasons that are set out above, I find that there is no evidence before me that the mere introduction of this new qualification triggered in a change to the job content of the grievor's classification. Disposition 35. For the reasons set out above, assuming that the facts set out in Appendix "A" are true, and taking the union's case at its highest, I find that there can be no violation of the Collective Agreement. The grievance is therefore dismissed. 36. I am not seized. Signed at Ottawa, Ontario on February 7, 2018 Andrew Tremayne Appendix "A" The grievor was hired in the position of Peer Support Worker on the Brockville General Hospital's (BGH's) Assertive Community Treatment (ACT) Team, in March 2016. Before he was hired, he was advised by a BGH human resource's representative that this position is very unique and the requirements very specific. In fact, the work he is required to do is better described as that of a Peer Support Specialist, that is, a professional who provides clinical support to clients, as do other members of the ACT Team, rather than a Peer Support Worker. He should, accordingly, be placed in a higher classification. Also included on the ACT Team are Registered Nurses, Social Workers, a Recreational Therapist, a Vocational Specialist, and a Concurrent Disorders Specialist (formerly Addictions Specialist). About 80 per cent of the Team members' work is practically the same, with the remaining 20 per sent based upon their respective disciplines, e.g. a Registered Nurse will give injections. Each Team member has their own primary client load that they maintain. Each team member can, and is required, to deal with any client at any time. Each Team member performs identical clinical duties, including with respect to the assessment of mental health issues, administration of psychotropic medicines, and service coordination. Indeed, each Team member is required to be on call to deal with emergency crisis situations. Each Team member is required to rotate the Daily Task Organizer duty. In order to receive equal pay for equal work, the griever must be paid commensurate to the other members of the Team. The work the griever does is effectively equal to the work being done by the Vocational Specialist. In April 2015, according to the wage grid in the collective agreement ending March 31, 2016, the Vocational Specialist classification started at $28.78 per hour, as compared to $23.11 per hour for the Peer Support Worker classification, with annual step increases for four and five years respectively. (There has been an overall 1.4 per cent annual increase to those wages in 2016 and 2017.) The only difference between the griever's work and that of the Vocational Specialist is with respect to content. Their counseling and service coordination, for example, will focus on their respective specialties, i.e. peer support (social roles, internalized stigma, quality of life) in the griever's case and employment-related issues in the Vocational Specialist's case. Notably, the Vocational Specialist is not required to be a registered health professional, and neither is the Concurrent Disorders Specialist. When the griever applied to the Peer Support Position, the employer required candidates to become registered health professionals, a new qualification that was not a required of the griever's predecessors. Since the griever has become a member of the Ontario College of Social Workers and Social Support Workers, as a registered Social Worker, he is subject to the professional standards and oversight of that regulating body. M Peer support work exists on a spectrum. On one hand, it is a mentorship role where the focus is on empathy and advocacy, and on the other, it is a specialist or clinical role where the focus is clinical treatment. This latter role requires knowledge of mental health issues and diagnoses, psychotropic medicines, treatment plans, crisis intervention and so forth. The griever is in a clinical role, in accordance with the program standards for the ACT Team, but is being paid for more of a mentorship-type role, perhaps similar to the Peer Support Worker in the Assault Response and Care (ARC) Centre. In other words, the griever is doing higher -rated clinical work, as do other members of the Team, and should properly be placed in a specialist classification. From the griever's perspective, this case is about dignity, and he strongly feels he is being undervalued, notwithstanding counselling is fundamental to the work he is required to do, because his job requires lived experience with mental health issues.