HomeMy WebLinkAboutUnion 04-09-13 IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN BLOOD SERVICES
(The "Employer")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 160
(The "Union")
Re: Policy Grievance regarding Medical'Certificates
APPEARANCES FOR THE EMPLOYER Frances Gallop, Counsel
Rob Burwash, Manager, Human
Resources
APPEARANCES FOR THE UNION Marie Thomson, District
Grievance Officer
Katherine Zan, Local President
DATE OF HEARING August 27, 2004
DATE OF AWARD September 13, 2004
The issue raised in this policy grievance Concerns the extent, if any, of the Employer's
obligation to pay the cost of a medical certificate required of an employee under Article
25.02 (d) of the collective agreement, which reads as follows:
ARTICLE 25 - SICK LEAVE
25.01 The employee must observe all of the following regulations to obtain the benefits available:
(a) telephone immediate supervisor or department head directly, prior to her starting time,
advising her of sickness or accident on the first day of disability;
(b) give full and correct information regarding the disability and furnish medical
certificates as may be required by the Employer;
(c) report to the Employer before making any change in usual place of residence or
address during disability;
(d) the Employer shall pay the full cost of medical certificates if required, subject to the
provisions of Bill 50 (1993).
The parties proceeded by way of the following Agreed Statement of Facts:
For the purposes of this proceeding only, and without prejudice to the position of
either party in any other proceeding, the following facts are agreed to:
1. Canadian Blood Services and OPSEU are party to a Collective
Agreement with a term from April 1, 2001 to March 31, 2005. A copy of
the Collective Agreement is attached as Exhibit 1.
2. OPSEU filed a policy grievance dated November 7, 2002. A copy of
the grievance is attached as Exhibit 2.
3. There is a dispute between the parties as to whether Canadian Blood
Services is required to pay for completion of medical certificates identified
as "Med Cert. Dis. 001" when Canadian Blood Services requests that an
employee have such a certificate completed.
4. A sample of Med. Cert. Dis. 001 is attached as Exhibit 3. Canadian
Blood Services may request completion of this form for different reasons
including, for example, to verify entitlement to sick pay, to identify where
modified work is required and to make appropriate accommodation, and to
substantiate absences from work. The Union contends that the grievance
encompasses other medical certificates as well but there is no agreement
on this point.
BACKGROUND TO THE DISPUTE
(5) The clause on which the grievance is based (Article 25.02 (d)) first
appeared in a Collective Agreement between OPSEU and Canadian Red
Cross ( "Canadian Blood Service's predecessor organization) which was
............................................ executed in 1996 and which.expired on March 31, 1998 ('~the. 1996
Collective Agreement"). The clause remained unchanged in tWo
subsequent Collective Agreements, including a Collective Agreement
which had a term from April 1, 1998 to March 31, 2001, and the current
Collective Agreement.
6. The 1996 Collective Agreement was the first Collective Agreement
covering the service bargaining unit between Canadian Red Cross and
OPSEU. Prior to the 1996 Collective Agreement there were separate full-
time and part-time Collective Agreements covering service employees
between Canadian Red Cross and the Canadian Red Cross Transfusion
Service Employees Association, both of which had a term from 1992 to
1994. OPSEU was certified in 1994 and the process of negotiating the
1996 Collective Agreement took a considerable amount of time.
7. In June 1993, the Ontario Government introduced Bill 50 into the
legislature. The bill received Royal Assent and came into force on
December 14, 1993. Bill 50 was essentially aimed at controlling
government healthcare expenditures. Bill 50 amended the Health
Insurance Act. A copy of Bill 50, the Health Insurance Act and the
general regulations under the Health Insurance Act are attached as
Exhibits 4, 5 and 6 respectively.
8. In late 2001, tWo individual grievances were submitted by the Union in
relation to Canadian Blood Services' refusal to pay for medical
certificates. On or about December 18, 2001, it was agreed to place the
grievances on hold, pending resolution at the negotiations which were then
underway for the current Collective Agreement.
9. During the negotiations for the current Collective Agreement, the issue
of payment for medical certificates was discussed by the parties. The
discussions can be summarized as follows:
(a) The Union proposed to delete the reference to Bill 50 from the
Collective Agreement. Canadian Blood Services did not agree to
the deletion of the reference.
(b) Canadian Blood Services, through Kay Rostant, then Manager
of Human Resources at the Toronto Centre, maintained that
Canadian Blood Services did not have to pay for medical
certificates due to Bill 50.
(c) The Union spokesperson indicated that the interpretation of the
Collective Agreement might have to go to arbitration.
(d) The Union made a proposal that the Canadian Blood Services
pay for fees for any medical certificates for drivers' licenses. A
copy of the Union's proposal is attached as Exhibit 7. Canadian
Blood Services accepted some responsibility to pay for medical
certificates required for drivers' licenses, and the parties'
agreement in that regard was incorporated into Article 35.02 of the
Collective Agreement.
10. On August 27, 22, Canadian Blood Services and OPSEU signed the
current Collective Agreement, which has a term from April 1, 2001 to
March 31, 2005.
11. On November 7, 2002 the Union filed the policy grievance (Exhibit
2), which is the subject of the current proceedings.
Article 35.02 referred to above reads as follows:
Medical Certificates for Drivers' Licenses
Up to$100.00 will be reimbursed to Drivers every twenty-four (24) months for the
purpose of obtaining a medical certificate for the renewal of a required driver's
license. This reimbursement will be provided upon submission of the receipt.
It was the Union's position that the language of the Collective Agreement is clear. The
Employer is required to pay the cost of medical certificates. It argued that the reference
to Bill 50 should be interpreted to mean the Employer's obligation is only excused if the
Bill expressly states so. Otherwise the Collective Agreement prevails. .'
The Employer based its refusal to pay on two distinct grounds. First it took the position
that there is no obligation to pay the cost of medical certificates and the Union had
acknowledged that in the last round of bargaining. It also maintained that, under Article
25.02, payment is only triggered if required under Bill 50. Bill 50 is incomplete in this
regard in that the regulations required to compel payment were never enacted.
Before dealing with Bill 50, I think it would be helpful to consider the Employer's first
argument. Prior to the negotiations for the current collective agreement, two individual
grievances were filed claiming payment for medical certificates. The parties agreed to
put those two grievances on hold and attempt to deal with the issue at the bargaining
table. During the last round of bargaining, the Union proposed that the reference to Bill50
be deleted from the collective agreement. The Employer refused and reiterated its view
that it was not required to do so under the collective agreement and/or Bill 50. The Union
reasserted its intention to seek an answer from a rights board of arbitration. That does
not_, i..n_ my_..v__i_e~,il~di__cate acc__e_ptance.oftl~e Employer's position._ Indeed, during.the
negotiations the Union clearly put the Employer on notice that it did not agree with its
interpretation. That cannot be interpreted as acquiescence.
The Employer also relied on the fact that the Union sought and obtained payment for
medical certificates under Article 35 as proof of the Union's awareness and agreement
that the Employer did n°t have to pay for medical certificates under Article 25. Again, I
disagree. Article 35.02 reads as follows:
Medical Certificate for Drivers licenses
Up to $10 will be reimbursed to Drivers every twenty-four (24) months for the
purpose of obtaining a medical certificate for the renewal of a required driver's
license. The reimbursement will be provided upon submission of the receipt.
The medical certificates required under this provision are clearly intended for a different
purpose that those required under Article 25. The former are in the way of professional
fees required to meet the requirements of the job. The latter are proof of a medical
condition requiting the payment of sick pay, proof of disability and/or substantiate an
employee's absence. The fact that the Union sought specific language to ensure payment
of the medical certificates under Article 35 does not negate its clear intention to challenge
the Employer's interpretation of Article 25 at arbitration.
That takes us to the more difficult question of the effect of Bill 50 on the disputed
obligation of the Employer to pay for medical certificates under Article 25. Bill 50 is
entitled An Act to implement the Government's expenditure control plan and, in
that connection, to amend the Health Insurance Act and the Hospital Labour
Disputes Arbitration Act. It applied to obligations to pay money in connection with the
provision of health services and, for our purposes, amended the Health Insurance Act in
several ways. More specifically, it dealt with third party services as follows:
36.1 (1) For the purpose of this section and sections 36.2 to 36.4, a third
party service is a service that,
(a) is provided by a service provider in connection or partly in
connection with,
(I) a request or requirement, made by a person or entity, that
!nformati0n or documentation relating to. an !~sur~d p?:~on ......
be provided,
or
(ii) a request or requirement, made by a person or entity, that
an insured person obtain a service from a provider;
(b) is not an insured service or is deemed, by a regulation made under
clause 45.(1), not to be an insured service;
and
( c ) is prescribed as a third party service or prescribed as a third party
service in circumstances specified in the regulation.
(2) For the purposes of this section and sections 36.2 to 36.4, a third party is a
person or entity who makes a request or requirement referred to in clause (1) (a).
(3) For the purposes of this section and sections 36.2 to 36.4, a third party is a
physician, practitioner, hospital or health facility, or an independent health facility
as defined in the Independent Health Facilities Act.
(4) Despite subsection (2), a regulation may be made, in relation to a specified
third party service or in relation to a third party service provided in specified
circumstances,
(a) prescribing another person or entity as a third party instead of or in
addition to the person or entity who makes the request or requirement referred to
in clause (1) (a);
(b) if more than one person or entity make the request or requirement
referred to in clause (1) (a), prescribing one or more of them as third parties and
providing that the others are not third parties; or
( c ) providing that there is no third parry.
(5) For the purpose of subsection (1), a person or entity shall be deemed to have
required or requested that information or a document relating to the insured
person be provided, or that the insured person obtain a service from a service
provider, if providing the information or document or obtaining the service is
related to the person or entity doing or not doing anything in relation to the
insured person or related to the insured person receiving or not receiving anything
from the third party.
36.2 (1) If a service provider who provides a third party service to an insured
person renders an account for payment to the third party, the third party is liable
for payment of the account, subject to subsection 36.3 (3).
(2) If an insured person pays all or part of an account rendered to him or
her by a service provider for a third party service provided to the insured person,
the third party is liable to reimburse the insured person for the amount paid,
subject to subsection 36.3 (4).
(3) Nothing in this section affects any liability of an insured person to pay
a service provider's account for a third party service.
(4) Nothing in sections 36.1 to 36.4 affect any right ora service provider
to render an account for a third party service at the time the service is rendered.
(5) The total amount that the service provider recovered in respect of a
third party service shall not exceed the amount of the account rendered.
36.3 - (1) This section applies to,
(a) an amount owing by a third party to a service provider under
subsection 36.2(1);
(b) an amount owing by a third party to an insured person under
subsection 36.2(2); and
(c) an amount owing by an insured person to a service provider for a third
party service provided to the insured person by the service provider.
(2) an amount referred to in subsection (1)may be recovered in a court
proceeding or, if a body is designated or established under clause 45 (1.1)
(f), in a proceeding before that body.
(3) In a proceeding to recover an amount referred to in clause (1) (a) or
(c), the court or body, in addition to any other order it may make, may
order the third party or the insured person, as the case may be, to pay the
service provider an amount that is less than the amount charged by the
service provider for the third party service if the court or body finds that
the amount charged by the service provider for the third party service is
excessive.
(4) In a proceeding to recover an amount referred to in clause (1) (b), the
court or body, in addition to any other order it may make, may order the
third party to pay the insured person an amount that is less than the
amount paid by the insured person to the service provider for the third
party service if the court or body finds that the amount charged by the
service provider for the third party service is excessive.
......................................... !.5) In determining whether an amount charged by a service provider other
than a physician for a third party service is excessive, the court or body
shall consider any applicable guidelines respecting third party services and
any applicable schedule of fees, and may consider any other relevant
factors.
(6) In determining whether an amount charged by a physician for a third
party service is excessive, the court or body shall consider the Ontario
Medical Association's guidelines respecting third party services and its
schedule of fees, and may consider any other relevant factors.
(7) The Lieutenant Govemor in Council may, in a regulation, provide that
the court or body shall consider other matters in addition to or instead of
the guidelines and schedules of fees referred to in subsections (5) and (6).
(8) No order shall be made under subsection (4) unless the service
provider has been added as a party to the proceeding.
(9) The service provider may be added as a party to the proceeding
referred to in subsection (4) on such terms as the court or body considers
just.
36.4 If, under subsection 36.3 (4), the court or body orders'the third party to pay
the insured person an amount that is less than the amount paid by the insured
person to the service provider for the third party service, the service provider is
liable to repay the difference to the insured person.
In addition to the above provisions, and in relation to the matter before me, Bill 50
amended section 45 of the Health Insurance Act with the addition of the following;
(d) prescribing services that meet the requirements of clauses 36.1 (1) (a)
and (b) as third party services, or prescribing them as third party services
in specified circumstances, and specifying the circumstances.
Ms. Thomson, representative for the Union, took the position that the Collective
Agreement is clear. The Employer is obligated to pay the cost of medical certificates
unless Bill 50 specifically states otherwise. Under Bill 50 the Employer is the third party
and the physician is the service provider. Section 35.2 clearly says that the third party is
'liable for the payment of these services. If there is a dispute about the amount of the cost
of the certificate, the Bill allows for an appeal to a court or other body established to
decide these disputes. That is the effect of Bill 50 on Article 25 of the Collective
Agreement. The Union asked for a declaration that the Employer has violated the
Collective Agreement by refusing to pay the cost of medical certificates, a cease and
desist order and compensation for all employees affected since the date of the grievance.
Ms. Gallop, counsel for the Employer, took the position that the onus is On the Union to
prove that its claim under the Collective Agreement is valid. To do so it must show by
clear and unequivocal language that the Employer is obligated to pay the cost of these
medical certificates. Article 25.02 appears to do so but that language is qualified by the
reference to Bill 50. Any obligation under the Collective Agreement is subject to the
provisions of Bill 50. Bill 50 was intended to create a legislative framework whereby the
Employer might be required to pay for third party services. That obligation depended on
the formulation of regulations defining the various terms under the Bill and clarifying the
liabilities of the parties affected by the Bill. However, it was submitted, no such
regulations were ever passed and it is not clear whether the Employer has any obligation
to pay the cost of third party services in the circumstances.
It was said that section 36.1 contains three conditions for payment. Subsection (i)
requires that a service provider, in this case most often a physician, provide a service at
the request or as a requirement of a person or third party. That condition, it was
conceded, is satisfied. Subsection (ii) requires that the service not be an insured service.
That condition too, it was conceded, is met. However it was asserted that subsection (iii).
requires that the service be prescribed as a third party service or prescribed as a third
party service in circumstances as specified in the regulations. There are no regulations
purporting to do so and therefore the Employer can not be liable for a service that the Bill
has not defined as a third party service. If the completion of a medical certificate is not
prescribed as a third party service, the section of the Bill that imposes liability cannot
apply to the Employer. When and if the province decides to enact regulations expressly
defining the third party services it intended to be included, the Employer will be bound
by that regulation. Until that happens, the Employer is not liable for the costs claimed by
the Union.
In support of its position, the Employer relied on the following cases: Re Canada Post
Corp. and Canadian Union of Postal Workers (Schlosser) (1993), 39 L.A.C. (4th) 6
(Bird); Re Hamilton Health Sciences Corp. and Canadian Union of Public
10
Employees, Local 839 Medical Certificate Grievance [200] O.L.A.A No. 166 (March
3, 2000 (Devlin).
REASONS FOR DECISION
As stated previously, the first two grounds of the Employer's position have been dealt
with earlier in this award. I do not find in these circumstances that the Union acquiesced
or agreed to the EmploYer's interpretation of Article 25.02. It clearly indicated its
intentions to seek a ruling from a board of arbitration as to the proper meaning of that
provision. I have also rejected the Employer's assertion that the addition of Article 35.02
should be seen by this Board as acceptance of its interpretation for the reasons stated
earlier.
That leaves me with the submission of the Employer that Bill 50 has had the effect of
amending Article 25 such that the obligation to pay for medical certificates is not valid
until-and only if regulations under Bill 50 are passed to compel payment by defining third
party services. Absent the reference to Bill 50 in the collective agreement, the
Employer's obligation is' clear. The Employer promised to pay for the cost of medical
certificates. However, I cannot ignore the words "subject to Bill 50"contained in that
provision. Black's Law Dictionary, Fifth Edition defines the phrase "subject to" as
:follows: liable; subordinate to; subservient; governed or affected by. The parties, in
negotiating this provision were aware that Bill 50 existed and must have intended for
Article 25.02 to be governed by the legislation in effect at the time. Assuming that to be
true, what effect, if any, does Bill 50 actually have on the Employer's promise to pay for
medical certificates?
Bill 50's intention is clear from its title, to limit expenditures under the Health Insurance
Act and The Hospital Labour Disputes Arbitration Act by controlling and regulating those
services that would be paid for by the province and those which would be expressly
excluded. It was to define those services that would be covered by the Health Insurance
Act and its regulations and the circumstances under which they would be covered.
Services not covered by the province and required by a third party, were to be at the
11
expense of the third party if the service was listed in the regulations: The GOvernment
defined the conditions for payment; namely, the service had to be at the request of a third
party, it could not be an insured benefit and, finally, it had to be a prescribed service as
specified in the regulations. The Employer takes no issue with the first two conditions.
The medical certificate in the instant case would be requested by the Employer and would
not be an insured service under the Act or the collective agreement. It is the third
condition that the Employer submits cannot be met. There have been no regulations
enacted to define what a third party service is and therefore the Employer cannot, it was
asserted, be liable for payment.
That argument ignores, however, the clear promise of the Employer to pay for these
certificates. When the parties negotiated this provision, they knew at the time that the
regulations had not been passed to complete the Bill. They may have anticipated these
regulations but must be taken to have understood at the time that certain aspects of
Article 25.02 would be subject to the circumstances that prevailed at the time or would
subsequently prevail. Unfortunately, the anticipated regulations were never enacted. The
Governrnent never finalized the Act by prescribing the third party services and the
absence of those regulations must mean that the obligations under the collective
agreement has not been amended or altered by the Bill. The promise to pay for the
medical certificates was to be governed or affected by Bill 50. It was subservient to
and/or subordinate to the provisions of the Bill and its regulations. Nothing in either of
them expressly states the Employer's promise to pay for medical certificates is no longer
valid. The promise made by the Employer was to pay for the full cost of medical
certificates and, if Bill 50 had limited or restricted the payment, the promise to pay would
have been amended accordingly.
The cases relied on by the Employer are of little assistance in the instant case. In the
Canada Post case (supra), the grievor was seeking payment for attendance at court. The
collective agreement required that the grievor be summonsed or subpoenaed as a witness
in order to be eligible for paid leave. The arbitrator dismissed the grievance on the
grounds that the grievor attended court as a defendant of his own volition. The Board
12
stated that the requirement to pay money under a collective agreement must be stated in
clear terms and, in the case before him, voluntary attendance at court did not trigger any
obligation to pay. In the instant case, there is clear contractual language requiring
payment of medical certificates. The Hamilton Health Sciences case (supra), also
involved the issue of the payment of medical certificates. The provision in the collective
agreement stated that the hospital would pay the full cost of any medical certificate
required of an employee. However, that provision was found in the article entitled
HOODIP, which stands for the Hospitals of Ontario Disability Plan. The employer took
the position that the obligation to pay for medical certificates only applied to illness
covered by HOODIP and that, since the request for a medical certificate was based on the
grievor's placement in the Attendance Awareness Program, it was not covered by the
collective agreement. The Board agreed that the obligation to pay only applied to illness
covered by HOODIP based on its placement in the collective agreement. It refused to
give that provision a broader effect. However, it found that, since the grievor was
eligible for sick benefits under HOODIP, the fact the request for the certificate arose
under the Attendance Awareness Program did not disentitle him to payment for the cost
of the medical certificate. In the Brunelle case (supra), the Board refused to read into
the collective agreement an obligation to pay for medical' certificates. In contrast to the
language of the collective agreement before me, that collective agreement the only
obligation to pay for medical certificates was specifically related to licensing renewals.
I am of the view that the Union's view should be accepted over that of the Employer. I
was not given any details about the negotiation of this provision and therefore must
interpret these words in a manner that gives effect to their meaning. The Employer made
a clear promise to pay for medical certificates. In the absence of clear language that
nullifies, invalidates or limits that promise, that obligation remains. If the regulations
under Bill 50 had excluded these medical certificates, Article 25.02 would have been
altered or amended accordingly. Since that never happened, the obligation is unchanged.
DECISION
For the reasons stated above, the grievance is allowed. I will remain seized in.the' event
the parties have difficulty in implementing this award.
Dated this 13th day of September, 2004.
~" CLoretta Mikus