HomeMy WebLinkAboutUNION-1995-10-01
IN THE MATTER OF AN ARBITRATION
BETWEEN:
..,.
THE EASTERN ONTARIO HEALTH u.NIT
the Employer
AND:
THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO
the Association
Grievance re: Pay Rate for the Classification of ~~._' ~ ,-,...., '---.:J:-::;'\
Health Educator/Promoter \h,';;'" \Y [', '.l~ "\\ \
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BOARD OF ARBITRATION: .~~....---------
.-....-..... ~ ~. .
Jane E. Emrich
Robert M. Whittaker
Bany Stephens
Chair
Employer Nominee
Association Nominee
APPEARANCES:
For the Employer.
Thomas A Stefanick
Ray Besner
Counsel, Shibley Righton
Director, Corporate Support
& Services
For the Association:
Sue McCulloch
Angela Rubino
Labour Relations Officer
Health Educator/Promoter
Hearing held in Cornwall, Ontario on the 9th day of November, 1994.
I INTRODUCTION
The Association grieves under Article 3.04 of the collective agreement asking that
this Board establish a rate of pay for the classification of Health Educator/Promoter.
Article 3.04 reads as follows:
..,...
3.04 The Association shall be advised of any new classifications that are
being created and the salary applicable thereto shall be subject to
negotiation. If the parties are unable to agree upon the salary for
a new job classification, the matter may be submitted to arbitration
for determination.
The Employer is a public health unit under the Health Protection and Promotion
Act It is divided into a public health department and a home care department, with the
head office located in Cornwall and five district offices located in Winchester, Alexandria,
Clarence Creek, Hawkesbury, and Casselman. The employees are represented by three
unions: AAH.P.O. represents the paramedical employees, O.NA represents nurses,
and C.U.P.E. represents all employees save and except management and employees
within the scope oftheAAH.P.O. and O.NA bargaining units. AAH.P.O. was certified
as bargaining agent on August 2, 1990 and a first collective agreement was signed on
May 13, 1992, the term of which e.xpired on December 31, 1992. Pursuant to s.35 of
the Social Contract Act (Bill 48), AAH.P.O. gave notice to the Employer that it wished
to revive and extend the operation of the collective agreement to March 31, 1996. The
effect of the notice is set forth in s.35(3) of the Social Contract Act
s.35 (3)
The giving of the notice extends an existing collective
agreement or, in the case of a collective agreement that has
expired, revives and extends the collective agreement to
March 31, 1996.
The Employer began to post a position titled Health Educator/Promoter in May
1991. At the time of establishing the position, the Employer acknowledged that the
work was not managerial, but remained non-committal about whether the tasks, duties,
1
and responsibilities of the position fell within the scope of the O.NA, AAH.P.O., or
C.U.P.E. bargaining units. Eventually, both AAH.P.O. and O.NA complained to the
Ontario Labour Relations Board under s.93 of the Labour Relations Act to seek a
determination of jurisdiction. The parties filed before us the decision of the BOard dated
April 30, 1993. At paragraphs 4 to 6, the Board reviewed the scope of the bargaining
units described in the collective bargaining agreements with O.N.A and C.U.P.E. and
the terms of the certificate issued to AAH.P.O. on August 2, 1990. At paragraphs 11
to 19, the Board reviewed the terms of the various postings describing the position and
at paragraphs 20 and 21 reviews the background of persons selected for the positions
posted. Most of the postings stipulated that a baccalaureate degree in a health related
field was a required qualification. At paragraph 21, the Board noted that there was a
wide variation in prior experience amongst the candidates selected:
21. There is also a substantial variation in their prior experience, which
includes promoting health, sports, and fitness to teachers and municipal
officials on behalf of the Ministry of Tourism and Recreation; delivering
fitness programs; planning, organizing, and conducting sports oriented
activities; supervising cardiac patients in a cardiac rehabilitation program;
analyzing fitness evaluations and developing personalized exercise
programs; presenting nutrition education sessions; working as a dietetic
supervisor; researching community resources for emergency planning
purposes; serving as a counsellor and group facilitator in respect of
overcoming sexual abuse trauma; and working for the Victorian Order of
Nurses.
At paragraph 22 of the decision, the Board noted that in the course of the hearing
on February 25, 1993, counsel for the Employer eventually indicated that on the basis
of the material filed and the submissions of the other parties, the Employer would take
the stance that' the work of Health Educator/Promoter should be assigned to the
A.AH.P.O. bargaining unit. At paragraphs 27 to 29 the Board sets forth the reasons
supporting its determination:
2
27. In the instant case, health educational and promotional work has
been performed, to some extent, by employees in each of the three
bargaining units. However, with the possible exception of the position of
dental health educator, the educational and promotional work performed
by employees has generally been only part of the employees' work.
Although the dental health educator certainly performs educational
functions, the scope of those functions is quite narrow. Moreover, the
inclusion of that position in the C.U.P.E. bargaining unit despite'its
specific listing in the A.A.H.P.O. paramedical clarity note is an
historical anomaly. Although C.U.P.E.'s bargaining unit is an "all
employee" unit, it excludes "persons covered by subsisting collective
agreements," such as paramedical employees and registered nurses.
Moreover, few if any of the persons in the C.U.P.E. bargaining unit
have the level of education or type of experience required for the
position of Health Educator/Promoter, and many of the persons in
that unit (such as secretaries, clerk typists. and custodians) would
not share a community of interest with the persons in the Health
Educator/Promoter classification.
28. The nature of the work performed by Health Educator/Promoters
who are registered nurses, and the skills and knowledge which they utilize
in performing it, lend substantial support to O.N.A's claim that persons
in that classification who are registered nurses should be included in its
bargaining unit. However, there is some variance in the duties and
responsibilities of employees in that classification, and the Employer has
a legitimate need to be in a position to adopt an interdisciplinary approach
by utilizing Health Educator/Promoters with various types of training,
knowledge, and experience in areas such as nutrition, recreology, and
other aspects of health education and promotion. These factors render
untenable O.N.A's contention that all of the Health Educator/Promoter
positions should be awarded to registered nurses and included in its
bargaining unit. For reasons which are largely historical in nature, the
Board has granted O.N.A bargaining units confined to registered and
graduate nurses. That very narrow unit is undoubtedly advantageous to
O.N.A in a number of respects. However, it does not enable O.N.A to
dictate that, 'despite ongoing developments in the public health field as
described above, the Employer must use only registered nurses to perform
health education and promotion work, even though persons with other
educational or experiential backgrounds are equally or better qualified to
perform various aspects of that work, and are essential to the
interdisciplinary approach emphasized in the aforementioned Guidelines
and standards. (See, generally, Sudbury Al~oma Hospital, [1989] OLRB
Rep. Apr. 390.) On the other hand, an employer such as the Health Unit
whose work place is split into a number of discrete bargaining units
cannot legitimately proceed as if those bargaining units do not exist by
creating a broad classification covering some positions that should
properly be included in one bargaining unit and other positions which
should properly be included in a second (or third) bargaining unit.
Although (in the absence of circumstances rendering it an unfair labour
practice) the Health Unit is at liberty to select either a registered nurse or
other du1y qualified person to fill a Health Educator/Promoter position, if
it elects to use a registered nurse that position must be included in
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O.NA's bargaining unit, because registered nurses functioning as Health
Educator/Promoters rely upon the knowledge and skills obtained through
their nursing education and experience to fu1iill the duties and
responsibilities of those positions.
29. Thus, having regard to all the evidence, we have concluded that the
positions held by Monique Bouvier, Heather Corbett, Chantal Lacetle,
Scphie Leduc, and Patricia Topp, who are all registered nurses, should be
included in O.N.A's bargaining unit. We have also concluded that the
position held by Richard Chatelaine, a certified Public Health Inspector
who spends forty percent of his time performing the work of a Public
Health Inspector, should be included in the C.U.P.E. bargaining unit so
long as public health inspection duties remain a substantial proportion of
the duties and responsibilities of that position. The remainder of the
Health Educator/Promoter positions should be included in AAH.P.O.'s
paramedical bargaining unit.
II ISSUES & ARGUMENTS OF THE PARTIES
The effect of the Board's decision was to apportion the work of the . position of
Health Educator/Promoter among the three bargaining units. Positions held by
registered nurses fall within the O.NA bargaining unit, and one position falls within the
C.U.P.E. bargaining unit so long as public health inspection duties remain a substantial
proportion of the duties and responsibilities of the position. The remainder of the
positions are to be included in the AAH.P.O. bargaining unit. This division has led to
the present conflict which centres upon the question of which salary rate and wage grid
is the most appropriate for this classification?
4
A) Employer Proposal & Arguments
Mav 5. 1993
$34.325.30 $35.122.01 $35.918.71 $36.715.43 $37.512.14 538.308.84 $39.105.55 $39.902.25
....
On behalf of the Employer, it is argued that the classification of Health
Educator/Promoter should be paid according to the wage grid applicable to public
health nurses for the 1991-92 term. All the persons classified as Health
Educator/Promoter have been paid according to this wage grid since the classification
was established. Furthermore, counsel for the Employer advised that it has reached a
settlement with C.U.P,E. accepting this grid as appropriate for the classification. The
Employer urged us to maintain the status quo as it represented a fair level of
remuneration and compared favourably to the salary grid for the classification of Health
Educator contained in the collective agreement between the Kent-Chatham Board of
Health and C.U.P.E., Local 2392 for the term January 1, 1993 to December 31, 1994.
In any event, the Employer argued that the provisions of the Social. Contract Act
precluded this Board from awarding an increase to the compensation for this
classification. Counsel argued that since this grievance arises as a rights arbitration
under Article 3.04 of the collective agreement, no jurisdiction could be asserted under
the Hospital Labour Disputes Arbitration Act.
In response to questions from the Board, counsel asserted that s.48(4) of the
Social. ConlJ'actAct, which allows increases in compensation to be awarded lithe award
settles a first collective agreement, has no application because the parties' first collective
agreement was c,:mcluded on May 13, 1992 and the case before US is framed as a rights
arbitration arising from the first collective agreement. On the other hand, counsel also
argued that s.48(5) of the Social Contract Act also has no application to the facts. This
section allows an arbitration award or decision to increase compensation to an employee
5
to the extent required to redress any improper classification. Counsel argued that this
provision had application only to an individual rights grievance which claimed improper
classification within an established, negotiated wage grid and not a rights grievance
seeking determination of the wage grid for a classification......
Finally, counsel for the Employer asked us to award the wage grid retroactive to
May 5, 1993 when the decision of the Ontario Labour Relations Board determining
jurisdiction over the assignment of work among the bargaining units was received and
implemented by the parties.
B) Association Proposal & Arguments
On behalf of the Association, Ms. McCulloch argued that the qualifications and
educational backgrormd required of a Health Educator/Promoter are comparable to
those possessed by other paramedical professionals in the bargaining unit - a four year
baccalaureate degree in a health science which generally entails training and theory in
health education and promotion. In support of her arguments, she filed before uS the
baccalaureate programme at the University of Waterloo in Health Studies which has a
concentration in Health Promotion. She pointed out that when vacancies that arose in
the bargaining unit in the classification of Numsite Coordinator and Community
Dietitian, these vacancies were not posted and filled. Rather two positions in the new
classification were created and filled. The Association asserts that the job duties, tasks,
and responsibilities of the new classification are not substantially different from those
carried out by the former incumbents of the Nutrisite Coordinator and Community
Dietitian classifications. This was not reflected in the submissions on behalf of the
Employer.
6
The Association proposes that the classification of Health Educator/Promoter be
grouped with the classifications of Physiotherapist, Occupational Therapist, Dietitian,
Nutrisite Coordinator, Speech Language Pathologist (non-accredited) and Social Worker
(BSW) on the wage grid: ....
Mav 27/91 $35,655
Jan. 1/92 $36,012
$36,288
$36,651
$37,821
$38,199
$39,354
$39,748
$40,888
$41,297
The Association opposes the imposition of the eight step Public Health Nurse
O.NA wage grid because it would distort the internal equity of pay relationships with
other allied health professionals in the unit, as well as e.-cternal equity with other
AA.H.P.O. bargaining units with a similar classification.
The collective agreement between the Health Unit and AAH.P.O. groups the
classifications into three salary scales, each with a five step progression to the maximum
rate. The collective agreement has a standard clause calling for the recognition of
service when an employee is placed on the grid. Ms. McCulloch pointed out that
placement of the Health Educator/Promoters on the scale proposed by AAH.P.O. would
not pose a problem, and she gave as an example the placement of Daniel Parthenais at
step #3 of the AAH.P.O. grid in accordance with Article 20.01(b) whereby he would earn
$37,821 per annum. On hire, the Employer placed Mr. Parthenais at step #5 of the
O.NA style grid at $37,512.14. Ifarticle 20.01(b) were applied to the eight step O.N.A
grid, he should have been placed at step #3 of the 1991 grid earning $35,563.08.
The Association acknowledges that C.U.P.E. has already agreed to the Employer's
proposal for the wage grid of Health Educator/Promoter. The Association points out
that there is only one such position in the C.U.P.E. bargaining unit and inclusion in the
unit is predicated upon public health inspection duties remaining a substantial portion
7
of the position. The Association points out that the C.U.P.E. salary range for a Public
Health Inspector is $33,207.20 to $39,071.22. The current breakdown injob duties for
me C.U.P.E. Health Educator/Promoter is 60% public health inspection, 40% health
education and promotion. Thus, acceptance of the Employer's proposal represented an
improvement upon health inspection rates. At p.12 of the brief, the Association
calculated the actual range of earnings for the position at $36,002.45 to $41,148.80,
which is consistent with the Association's proposal of $36,012 to $41,297 for the
minimum and maximum of me range as at January 1, 1992. The Employer did not
dispute these calculations at the hearing, but indicated that the position had evolved
from a part-time to a full-time position.
Finally, concerning the effective date, the Association indicated that the Employer
had signed an agreement recognizing that Health Educator/Promoter positions fall
"\vithin the bargaining unit and requiring the payment of dues to the Association effective
from May 27,1991 when the classification was created and posted.
In response to the jurisdictional arguments raised under the Social Contract Act.
the Association contended that because of the lay-off of all members of the classification
for the last two months of 1993, they would earn annually an amount which is less
than the $30,000 low income cut-off as set forth in s.48(3). Furthermore, the
Association contends that the first collective agreement is not settled until a wage grid
is in place for this classification and therefore s.48(5) would apply.
8
III DECISION
Article 3.01 of the collective agreement is a management's rights provision in
which the Association recognizes the Employer's "exclusive function of managing the
affairs and operation of the Health Unit," including the right to classify. In tl:.:s clause,
the Employer agrees it will not exercise its reserved managerial functions "in a manner
inconsistent with the provisions of this Agreement." Article 3.04 further qualifies the
right to classify employees by stipulating that when management creates a new
classification, the Association is to be notified and the salary is to be jointly negotiated.
In the absence of mutual agreement on the salary for the new job classification, the
issue may be submitted to arbitration for determination. When these provisions are
read together, it is clear that our function is to determine the rate de novo, and our
scope of review is not limited to determining whether management acted arbitrarily,
discriminato~y, or in bad faith in setting the rate, as would be the case if management
were empowered to set the rate, after due consultation with the union.
The determination of an appropriate rate involves a type of job evaluation,
comparing the qualifications required, skills, knowledge, judgement, responsibilities,
tasks, and duties of the position in relation to other classifications within the barg;aining
unit in order to maintain the internal integrity and equity of the classification scheme.
Regard should be had to the levels of remuneration for similar work at similar
workplaces with the objective of maintaining ext=al equity for equal work of equal
value. Thus, determination of the rate is more akin to a type of single issue interest
arbitration than it is to the sort of inquiIy usually undertaken in a rights arbitration
involving classification. In the instant case, the classification of Health Educator/
Promoter was being created and filled in tandem with the negotiations for a first
collective agreement following certification of the Association in August 1990. The first
collective agreement was signed on May 13, 1992 but at that point in time there was no
9
salary grid agreed for the classification and jurisdiction over the work of the
classification was the subject of two complaints before the Ontario Labour Relations
Board with hearings set for December 1992 and January and February 1993. In fact,
the Ontario Labour Relations Board decision concerning jurisdiction over the
assignment of work was issued April 30, 1993, but negotiations were still ongoing
concerning the salary rate for this classification. The grievance leading to this
arbitration was filed October 4, 1993.
In the meantime, in the fall of 1993, Bill 48, the Social Contract Act, came into
effect. It was common ground between the parties that there is no sectoral framework
or local agre=ent in effect and that they fall within Part VII, or the fail-safe provisions
of the Act.
The relevant sections of the Social Contract Act to which the parties made any
reference are the followmg:
PART VII
WHERE NO AGREEMENT OR PLAN
Employees
affected
23. - (1)
This Part applies to,
(a) those bargaining unit employees in
respect of whom there is no local
agreement that meets the criteria set out
in paragraphs 1, 3 and 4 of subsection
14(1); and
Exclusion
(2) This Part does not apply to =ployees who earn
less than $30,000 annually, excluding overtime pay.
No Increase In
compensation
24. - (1) The rate of compensation of an employee is, for
the period beginning June 14, 1993 and ending with March
31, 1996, fixed at the rate that was in effect innnediately
before June 14, 1993.
10
Same (2) For greater certainty, "compensation" in this
section includes,
(a)
(b)
(c)
merit increases;
cost-of-living increases or other similar
movement of or fhrough ranges; and
increases resulting from any movements
on any pay scale or other grid system:-
Existing
collective
agreements
(4) An increase in compensation after June 14,
1993 under a collective agreement existing on that date is
void.
First collective
Agreement (10) Despite subsection (1), if employees are
represented by a bargaining agent that,
(a) was certified or recognized as the
employees' bargaining agent before June
14,1993;or
(b) applied for certification as the
employees' barg"ining agent before June
14, 1993.
and a first collective agreement comes into force on or after
June 14, 1993, the rate of compensation of an employee to
whom the first collective agreement applies is, for the period
beginning on the day the first collective agreement comes
into force and ending with March 31, 1996, fixed at the rate
first payable under the first collective agreement.
PART X
MISCELLANEOUS
Salary
arbitration
48. - (1) No increase in compensation shall be given as
a result of any arbitration award or decision made on or after
June 14,1 993.
Same
(3) Despite subsection (1), an arbitration award or
decision may increase the annual earnings of employees to
a maximum of $30,000.
Same
(4) Despite subsection (1), an arbitration award or
decision may increase compensation to an employee to the
extent required to redress any improper denial of a
promotion or improper classification.
11
(
award is to settle the wage grid for this classification and thereby conclude the sole
issue outstanding from that first collective agreement.
In the alternative, ifwe are wrong that s.48(5) permits us to render an award that
may increase compensation of employees in the Health Educator/Promoter
",..
classification, we conclude that s.48(4) of the Social Contract Act would permit us to
redress the improper classification of Health Educator/Promoter, should it be
determined that the public health nurse wage grid applied by the Employer is not
appropriate. A classification system serves to distinguish work according to various
factors, such as skill, knowledge, tasks, responsibilities and educational qualifications,
and remunerates different types of work differently commensurate with relevant
differences. Thus, a classification system is comprised of a scheme for describing and
differentiating types of work and a wage grid which logically supports the distinctions
so as to maintain equity and ensure that equal work is paid equal value and that
different work is valued differently, on factors which are neither arbitrary nor
discriminato:ry. According to the parties' own collective agreement, until a wage grid is
either mutually agreed or determined at arbitration, the classification of Health
Educator/Promoters is not complete or proper.
Ms. McCulloch argued before us that members from this classification would be
exempt from the bar on increases to compensation because they would fall within
s.23(2) and 2.48(3) by reason of a lay-off in 1993. We do not have enough evidence or
argument upon which to base a conclusion on this issue.
In any event, for the reasons outlined, we find that we are not without jurisdiction
to issue an award that may have the effect of increasing compensation to the
classification of Health Educator/Promoter by reason of the Social Contract Act
13
We have reviewed the submissions of the parties which care and the exhibits
filed. In our view, great weight cannot be placed upon the settlement with C.U.P.E.
accepting the O.N.A public health nurse grid for the single part-time position governed
by that settlement. It is clear from the parties' submissions and from the reasons of the
Ontario Labour Relations Board that the C.U.P.E. bargaining unit is populated primarily
by clerical and service employees with whom paramedical employees would not share
a community of interest in bargaining. At paragraph 27, the Ontario Labour Relations
Board comments:
27. In the instant case, health educational and promotional work has
been performed, to some e.xtent, by employees in each of the three
bargaining units. However, with the possible exception of the position of
dental health educator, the educational and promotional work performed
by employees has generally been only part of the employees' work.
Although the dental health educator certainly performs educational
functions, the scope of those functions is quite narrow. Moreover, the
inclusion of that position in the C.U.P.E. bargaining unit despite its
specific listing in the AAH.P.O. paramedical clarity note is an historical
anomaly. Although C.U.P.E:s bargaining unit is an "all employee" unit,
it excludes "persons covered by subsisting collective agreements," such as
paramedical employees and registered nurses. Moreover, few if any of the
persons in the C.U.P.E. bargaining unit have the level of education or type
of experience required for the position of Health Educator/Promoter, and
many of the persons in that unit (such as secretaries, clerk typists, and
custodians) would not share a community of interest with the persons in
the Health Educator/Promoter classification.
Furthermore, it was clear from the evidence that the 1991-92 O.NA public health nurse
rates e.,ceeded the salary rate for C.U.P.E. public health inspectors; therefore agreement
to those rates provided some increase to the incumbent. Given the constituency of the
C.U.P.E. bargaining unit, such an increase could be sufficient to secure agreement,
without a thorough review of the merits of the wage rate.
14
We are advised that O.NA has not accepted the public health nurse rates as
appropriate for this classification and the matter has been referred to arbitration. An
argument for uniformity at the rates proposed by the Employer would have been more
compelling if O.N.A had supported the Employer's proposed rates. ,.,..
Although the Employer's admission before the Ontario Labour Relations Board
that the work of Health Educator/Promoters belonged to AAH.P.O. was belated and
reluctant, it remains the case that most paramedical employees are represented by
AAH.P.O. at the Health Unit and these =ployees have an educational background and
specialized training that is comparable. Indeed AAH.P.O. specializes in the
representation of paramedical employees and allied health professionals in the health
sector, particularly in Eastern Ontario. The evidence before us is that imposition of the
AAH.P.O. proposed wage grid and placement of the incumbents of the classification on
the AAH.P.O. five step grid would not cause hardship and would yield results which
are consistent with how the employees are currently paid in any event. We conclude
that external comparability and internal equity would better serve the classification
system for paramedical employees and allied health professionals at this Health Unit if
the AAH.P.O. proposal for the wage grid were awarded. We so award.
The final issue before us is the retroactivity date. The Employer asks that May
5, 1993 be chosen since the parties were advised of the resolution of the question of
jurisdiction about that time (the Ontario Labour Relations Board decision is dated April
30, 1993). We are of the view that the wage grid should apply from the time that the
Employer first began to post and fill this classification. It was open to it at any time to
negotiate a settlement with AAH.P.O., particularly in light of its admission at the
Ontario Labour Relations Board hearing that these employees shared the greatest
community of interest with the AAH.P.O. bargaining unit. Furthermore, the Employer
signed an agreement filed as Exhibit #5 before us recognizing that liability for the
15
payment of dues in respect of Health Educator/Promoters should date from May 27,
1991. We therefore conclude that the wage grid for Health Educator/Promoters should
be as proposed by the Association and should be implemented effective May 27, 1991.
We so award.
,-
We reserve jurisdiction to determine any problems in respect to the
implementation of this award, should the parties be unable to do so.
Dated at Kingston, Ontario, on this 10th day of January, 1995.
/l ;
t...-.. l!:'~ '___
Jane E. Emri.ch
C . '\
("'_~ ,..&_}'J....-)
Chair
"I Concur"
Robert M. Whittaker Employer Nominee
"I Concur"
Bany Stephens Association Nominee
16