HomeMy WebLinkAboutBurnett Group 23-11-16IN THE MATTER OF AN ARBITRATION
PURSUANT TO THE LABOUR RELATIONS ACT, 1995
BETWEEN:
COMMUNITY LIVING MISSISSAUGA
(the “Employer”)
- and -
OPSEU LOCAL 251
(the “Union”)
OPSEU (Burnett Group #2021-0251-0007; #2022-0251-0005; and
ECERCs Group #2022-0251-0006)
Sole Arbitrator Kelly Waddingham
APPEARANCES
For the Employer: Dirk Van de Kamer – Counsel
Keith Tansley
For the Union: James Craig – Counsel
Rachel Zaurov – Student-at-Law
Vanessa Fera
Cathy Burnett
Sloane Martin
Dana Ragoonath
Ewa Kalinowski
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1. These are three group grievances filed in response to Community Living
Mississauga’s administration of the Ontario government’s wage enhancement programs
covering direct support workers in the social services sector.
2. The first grievance was filed on November 12, 2021, after Community Living
Mississauga (“CLM” or the “Employer”) ceased paying the Temporary Wage
Enhancement (the “TWE”) to employees in the position of Support Worker - Service
Coordination (“Service Coordinators”). The Ontario Public Service Employees Union,
Local 251 (“OPSEU” or the “Union”) alleges that CLM violated the collective agreement
between the parties by discontinuing the TWE.
3. The second and third grievances were filed on April 27, 2022, after CLM failed to
apply the Permanent Compensation Enhancement (the “PCE”) to the wages of Service
Coordinators and employees in the position of the Support Worker - Early Childhood
Education Resource Consultant (“ECERCs”). OPSEU alleges that CLM violated the
Collective Agreement by failing to pay the PCE to Service Coordinators and ECERCs.
4. CLM denies that it violated the Collective Agreement in respect of either group of
employees. CLM maintains that Service Coordinators do not meet the eligibility
requirements for either the TWE or the PCE, or are expressly excluded from both
programs. With respect to ECERCs, CLM maintains that as their position is funded by the
Region of Peel, and not the Ministry of Children, Community and Social Services
(“MCCSS”), they are not eligible for the PCE.
BACKGROUND
5. CLM is a non-profit organization that provides support to people with an intellectual
disability to enable them to live in the community and participate in community life. In
support of those objectives, CLM provides a variety of services and programs including
residential support, community support, day support, social and recreational pro grams,
and child and youth programs. Residential support is provided to individuals living in the
twenty-seven homes operated by CLM, as well as to individuals living independently or
with family.
6. In April 2020, as part of its response to the COVID -19 pandemic, the Government
of Ontario announced the Temporary Pandemic Pay Program for eligible frontline workers
working in eligible workplaces. The program was implemented pursuant to Ontario
Regulation 241/20, made under the Emergency Management and Civil Protection Act,
R.S.O. 1990, c. E.9, and continued under the Reopening Ontario (A Flexible Approach to
COVID-19) Act, 2020, S.O. 2020, c. 17 (the “Reopening Ontario Act”). Direct support
workers in the social services sector were amongst the workers eligible for temporary
pandemic pay (“TPP”) of $4.00 per hour on top of their regular wages. The program was
slated to run from April 24, 2020 to August 13, 2020. To qualify for the TPP, a worker had
to work in both an eligible “role” and an eligible workplace. Eligible roles in social services
workplaces included direct support workers (such as developmental service workers, staff
in licenced children’s residential sites, intake and outreach workers).
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7. On April 27, 2020, CLM issued a notice to its employees advising them that in light
of the government’s announcement, it would be increasing its existing wage
enhancement from $2.00 per hour to $4.00 per hour for employees “on the active payroll”.
On the same day, OPSEU issued a press release commending Premier Ford and Prime
Minister Trudeau for the pandemic pay increase to frontline public sector workers.
8. On October 1, 2020, the Government of Ontario announced its Temporary Wage
Enhancement Program for personal support workers and direct support workers in the
home and community care, long-term care, hospital, and social services sectors. Under
the program, eligible workers would receive a temporary wage increase of up to $3.00
per hour, starting October 1st. While the program was originally scheduled to run no later
than March 31, 2021, it was extended several times. The final extension ran from
November 1, 2021 until March 31, 2022 (although this date, too, was extended to bridge
the TWE with the PCE). Guidelines for the administration of the program were issued by
the MCCSS (Guidelines for the Administration of Temporary Targeted Wage
Enhancements). The Guidelines (as updated in October 2021) provide as follows:
3.0 ELIGIBILITY REQUIREMENTS
Temporary wage enhancements are designed to support eligible full- and part-time
workers. Eligibility is not dependent on whether there is a COVID -19 outbreak in
the location where an eligible worker works.
To be eligible, work functions regardless of job class must involve the primary
provision of personal care to individuals with special needs, including
developmental disabilities, physical disabilities, medical issues and or behavioural
challenges. Eligible workers are responsible for providing assistance in daily living
tasks, personal care and support, and ensuring the personal safety and welfare of
individuals in residential, community and home settings, and/or for the provision of
caregiver respite. Thi s care must be performed in direct proximity to the client
involving physical interaction, or virtually/remotely. In applying eligibility, workers
within particular job classes need to be treated consistently.
The provision of personal client care includes:
• directly assisting clients by providing personal assistance in daily living tasks
and personal care (such as feeding, dressing, personal hygiene, toileting,
managing medication),
• providing necessary supports required for clients to access and participate
in community activities,
• observing, planning daily living routines, supervising clients and monitoring
safety risks.
Frontline supervisors and team leads performing these functions on a regular or
ad-hoc basis are also eligible.
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4.0 OTHER ELIGIBILITY REQUIREMENTS & EXCLUSIONS
[…]
Excluded
• Management*
• Foster parents, kinship service providers and customary care givers
• Homeshare providers
• Employees whose primary functions relate to case management,
maintenance, food service, and administration
• Regulated professionals.
• See list of excluded programs in Appendix A
9. On December 7, 2020, CLM notified its employees that it would be paying the TWE
to all employees, including those who did not qualify for it under the eligibility guidelines.
From October 1, 2020 to October 31, 2021, CLM paid the specified $3.00 per hour wage
enhancement to all employees on its active payroll .
10. On November 4, 2021, CLM advised its employees that although the TWE was
being extended until March 31, 2022, it would thereafter pay it only to employees who
qualified for it under the Ministry’s guidelines. The November 4 th notice provides (in part):
EXTENSION – TEMPORARY WAGE ENHANCEMENT FOR ELIGIBLE
EMPLOYEES ONLY
The Ontario government has announced they will be extending the Temporary
Wage Enhancement until March 31, 2022. As you are aware, the Ontario
government has always clearly defined the specific employees eligible for this
Temporary Wage Enhancement and it has not and does not include all employees.
Although Community Living Mississauga has tirelessly advocated on a regional
and provincial level to broaden this scope, the eligibility for this Temporary Wage
Enhancement has remained unchanged.
Community Living Mississauga felt strongly that all employees needed to be
acknowledged for their great work during these extraordinary times so we invested
our own resources to include everyone up to this point.
Unfortunately, we are extremely disappointed that due to the additional financial
resources required going forward, we will not be able to offer this to all employees
as we have done in the past. [emphasis in original]
The notice went on to set out (by work area) the employees who would continue to receive
the TWE. Service Coordinators and ECERCs do not fall within any of the enumerated
work areas.
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11. In April 2022, pursuant to the recently-enacted Supporting Retention in Public
Services Act, 2022, S.O. 2022, c. 11, Sched. 7 (the “SRPSA”), the Government of Ontario
implemented the Permanent Compensation Enhancement Program. Like the TWE
program before it, the PCE program granted certain employees in the home and
community care, long-term care, hospital, and social services sectors a wage
enhancement of up to $3.00 per hour. The eligibility requirements for the program are set
out in the document “Personal Support Workers and Direct Support Workers Permanent
Compensation Enhancement Program”, described in Ontario Regulation 413/22
(Personal Support Workers and Direct Support Workers ) made under the SRPSA. They
are also set out in guidelines for the administration of the program issued by the MCCSS
(Guidelines for the Administration of the Personal Support Workers and Direct Support
Workers Permanent Compensation Enhancement Program). The Guidelines (as
updated in September 2022) provide as follows:
2.0 ELIGIBILITY REQUIREMENTS
This guideline applies to:
1. MCCSS-funded organizations: Transfer Payment Recipients (TPRs), placing
agencies and Societies that administer the Program for their own staff.
2. Outside Paid Resources (OPRs)/third -party services providers and temporary
staffing agencies that receive compensation enhancements through a lead agency
that will administer the Program.
The Program supports eligible full - and part-time workers who work for approved
entities funded by the Ontario government. Detailed eligibility criteria are available
here.
Eligible employees have the primary employment responsibility to provide at least
one of the following:
• personal client care to persons with special needs, including developmental
disabilities, physical disabilities, medical issues, or behavioural challenges; or
• caregiver respite; or
• interpreter or intervenor services for persons who are deafblind, or deaf,
deafened, and hard of hearing; or
• direct care to children receiving residential care pursuant to a licence issued
under Part IX of the Child, Youth and Family Services Act, 2017.
The provision of personal client care includes:
• directly assisting clients by providing personal assistance in daily living tasks
and personal care (such as feeding, dressing, personal hygiene, toileting,
managing medication),
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• providing necessary supports required to assist a person [with special needs]
to access and participate in community activities, or
• observing, planning daily living routines, supervising clients, monitoring, and
ensuring the personal safety and welfare of individuals.
In the case of a frontline supervisor or team lead, the employee is required to
perform the work described above in this table for at least 50 per cent of their
work hours.
Additional notes:
Care may be provided in residential, community and home settings, and may be
performed in direct proximity to the client involving physical interaction, or
virtually/remotely. In applying eligibility, workers within particular job classes need
to be treated consistently.
Worker status is not a factor i.e., workers redeployed, contractors, purchased
services into eligible frontline positions.
3.0 EXCLUSIONS
The following workers are not eligible for compensation enhancements under the
Program:
• Management (see information above related to frontline supervisors and
team leads)
• Foster parents, kinship service providers and customary care givers
• Homeshare providers
• Employees whose primary functions relate to case management,
maintenance, food service, and administration
• Regulated professionals
• See list of excluded programs in Appendix A
12. CLM determined that Service Coordinators and ECERCs did not qualify for the
PCE and, in consequence, did not pay the wage enhancement to either group when the
program started on April 21, 2022. To date, CLM has not been paying the PCE to Service
Coordinators. ECERCs began receiving a wage enhancement equivalent to the PCE
starting in January 2023. The wage enhancement for that group is funded by monies CLM
receives from the Region of Peel.
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EVIDENCE
13. The parties provided an Agreed Statement of Fact for the ECERC position, and
called viva voce evidence for both positions. Keith Tansley, Executive Director of CLM,
testified on behalf of the Employer. Cathy Burnett, a Service Coordinator at CLM, testified
on behalf of OPSEU. Documentary evidence consisted of two volumes of documents
compiled by the Union, and additional documents entered during the course of the
hearing.
The ECERC Position
14. ECERCs are part of a service operated by the Region of Peel. The service – Peel
Inclusion Resource Services (“PIRS”) – works with families and licensed child care
providers to support children to enable them to participate fully in child care. ECERCs
develop plans with families and child care providers based on a child’s strengths and
areas of development. The service is free, and a diagnosis is not needed .
15. Most of the evidence concerning the ECERC position is set out in the parties’
Agreed Statement of Facts (in which ECERCs are generally referred to as “ECERS team
members”). Mr. Tansley gave oral evidence regarding the application of the TWE and
PCE to ECERCs. The ASF provides (in part):
VOLUME OF FRONTLINE WORK:
12. During the period of November 2021 to January 2023 the approximately 16
ECERS team members collectively conducted approximately 3,693 in -person
site visits, child visits, and centre visits requiring direct, and frontline support to
children. A summary char t for the in-person visits is found at Tab 13 of the
Union’s BOD, and Tab 14 contains the underlying Excel spreadsheets and data
relied upon from this summary.
13. As of March 2022, a site visit typically consists of at a minimum 2 hours at the
site, and a minimum 5 visits per week.
14. A majority of the day for ECERS Support Worker staff is spent directly with
children. Typically, a ECERS staff member will visit a childcare site for a 2+ hour
visit in the morning, and a 2+ hour visit in afternoon [sic].
15. At a site visit with children, frontline work does include, typically, the following:
a. Helping children with toileting, dressing, feeding/eating, washing
hands/face, assisting with first aid (as needed).
b. Providing direct support and care for children as part of case load who may
have conditions such as autism spectrum disorder, who have behavioural,
learning, and emotional concerns.
c. Supporting children who are medically fragile (such as using walker,
wheelchair, and/or G Tube).
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MINISTRY ELIGIBILITY REQUIREMENTS
16. The Ministry of Children, Community and Social Services came up with a set of
eligibility criteria for inclusion in the above -noted Ministry wage enhancement
program. The eligibility requirements are found at Tab 4 of the Union’s BOD. In
sum, to be eligible, the work functions must involve the primary provision of
personal care to individuals with special needs including development and
physical disabilities, medical issues and/or behavioural challenges. Eligible
workers must provide assistance with daily living tasks, personal care and
support, and ensuring the personal safety and welfare of individuals in
residential, community, and home settings. This care may be performed in direct
proximity to the client, including physical interaction, or remote [sic]. The
Ministry defined personal client care as consisting of:
a. Directly assisting clients by providing personal care such as feeding,
dressing, personal hygiene, toileting and managing medication.
b. Providing necessary supports required for clients to access and participate
in community activities.
c. Observing, planning daily living routines, supervising clients, and
monitoring safety risks.
ECERS SUPPORT WORKER STAFF MEET THE MINISTRY’S ELIGIBILITY
REQUIREMENTS
17. For the relevant period, the ECERS Support Worker team performed all of the
above-noted personal care work to children on a daily basis (save for managing
medication), and frequently the work amounts to a majority of their day. In
particular, the ECERS team staff do the following:
a. Eligibility Criteria - Directly assisting clients by providing personal care such
as feeding, dressing, personal hygiene, toileting and managing medication:
i. ECERS team members: Over 50% of the average day for ECERS team
members is directly assisting children in washroom, feeding, dressing,
playing, social interactions, and communication skill building. This is
done at the childcare centre visits that occur fre quently each week, and
each visit must consist of a 2 hour minimum visit.
b. Eligibility Criteria - Providing necessary supports required for clients to
access and participate in community activities:
i. ECERS team members: ECERS team members support children and
meet them at, for instance, Erinoakkids Centre for Treatment and
Development to access autism support for early intervention and attend
at the meetings to provide support to the children and their families.
ii. ECERS team members: Centre visits in the community, including going
with children to attend at new centres.
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iii. ECERS team members: ECERS team members support to children at
therapy clinics, as well as medical assessments, often through attending
with the children and their families.
iv. ECERS team members: ECERS team members support children at
community events such as BBQs, fundraisers, cultural events etc.
c. Eligibility Criteria - Observing, planning daily living routines, supervising
clients, and monitoring safety risks:
i. ECERS team members: ECERS team members observe children and
their families in various settings (school, their homes, therapies, medical
appointments, childcare centres). Through this observation,
recommendations are provided to support children, and to adv ance
developmental strategies for support.
ii. ECERS team members: Planning daily living routines is something done
by ECERS team members that is specific to the children in the centres
based on their strengths and needs. Individual Program Plans are
created and implemented; these goals are modelled from the Support
Worker, and plans like transition strategies and visual schedules are
created.
iii. ECERS team members: Supervising the children at childcare centres,
schools etc. Although not counted as part of the ‘ratio’ for child -to-
supervisor counts, ECERS team members provide support and
supervision and are dynamically integrated into the centres a s care and
support persons.
iv. ECERS team members: ECERS team members routine [sic] monitor for
personal safety. This includes observing and providing intervention
when behaviours are exhibited, flight risk children are present, conflicts
between children arise, and must be aware of all children’s allergies and
EpiPens. Work also includes support to children who are medically
fragile i.e., G tube, seizures, wheelchair, walkers, leg braces, prosthetics
etc.
ECERs TEAM DID NOT RECEIVED THE $3 WAGE ENHANCEMENT BETWEEN
NOVEMBER 2021 TO JANUARY 2023
18. From November 2021 to January 2023 the ECERS team members did not receive
$3/hour wage enhancement from the Employer. When the Region of Peel agreed to
provide funding for the wage enhancement, the Employer immediately put this in place
in January 2023.
16. The chart referred to at paragraph 12 of the ASF shows that ECERCs (collectively)
made anywhere from 101 visits a month (January 2022) to 372 visits a month (June
2022). In January 2023 (the month Peel Region started paying ECERCs a permanent
wage enhancement), ECERCs made 362 childcare centre visits.
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17. Mr. Tansley testified that CLM has not paid the PCE to ECERCs because the
position is not funded by the MCCSS and, therefore, is not subject to the PCE program.
According to Mr. Tansley, funding for the position was at one time provided by the Ministry
of Community and Social Services. After that, he explained, the p osition came within the
purview of the Ministry of Education. The Ministry of Education, Mr. Tansley said,
ultimately assigned responsibility for the position to the Region of Peel. “One hundred per
cent” of the funding for the position now comes from the Region, Mr. Tansley stated.
ECERCs, he said, constitute the “main group” of CLM employees who are not funded by
the Ministry.
18. Mr. Tansley testified that he lobbied the MPP for CLM’s riding, and enlisted the
support of community living agencies – including Community Living Ontario and Ontario
Agencies Supporting Individuals With Special Needs – in an effort to broaden the scope
of the PCE program. He also encouraged the Union to lobby the provincial government
for changes to the program. While these efforts proved unsuccessful, Mr. Tansley’s
lobbying of the Region of Peel resulted in the Region agreeing to fund a wage
enhancement for ECERCs equal to that provided under the PCE program.
The Service Coordinator position
19. Oral evidence regarding the Service Coordinator position was provided by Ms.
Burnett and Mr. Tansley. Documentary evidence regarding the position included the
Support Worker (Service Coordination) job description, and a handwritten record of the
hours Ms. Burnett worked performing “in-person” tasks in 2020, 2021, 2022 and 2023
(prior to February 15, 2023).
20. Mr. Tansley testified that when the guidelines for the TWE became available, he
was dismayed to discover that not all workers involved in providing direct support to
clients would be eligible for the wage enhancement. Among the CLM employees who
were not eligible for the TWE were Service Coordinators, Administrative Assistants, and
ECERCs. Service Coordinators, Mr. Tansley said, were ineligible because, under the
guidelines, “case managers” were expressly excluded. Mr. Tansley stated that because
CLM had “some surplus dollars”, it was able to pay the wage enhancement to the
excluded employees until October 31, 2021. After that, he said, CLM paid the
enhancement only to those employees who were eligible for it under the guidelines .
21. The job description for Support Worker (Service Coordination) sets out the major
responsibilities of the position as follows :
• Provide service coordination support to people and their families as part of
larger support networks
• Organize and lead case conferences for the people who receive support, their
families and agencies as required
• Resolve conflict and build trust with people who receive support, families, co -
workers and management team. Problem solve and collaborate with co -workers
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and manager as necessary in seeking solutions to day to day and ongoing
issues
• Collaborate efficiently with coworkers and external partners as necessary
• Maintain respectful and professional behaviour consistent with the Agency’s
values in all areas of support and work
• Ensure all documentation is completed as per Agency requirements
22. Ms. Burnett has been a Service Coordinator at CLM for about twenty years. She
described the Service Coordinator as a “point of entry” into services for individuals and
families facing barriers to independent living and community involvement because of an
intellectual disability. Ms. Burnett explained that Service Coordinators meet with the
individual and their family to identify goals, and determine what services and supports the
individual requires. They then help the family obtain the necessary services a nd supports.
23. Once a support plan/program is in place, Ms. Burnett testified, the Service
Coordinator will meet regularly (i.e., at least quarterly) with individual and/or family
members, and representatives of other agencies supporting the individual to assess the
efficacy of the current supports, and determine whether further supports are needed.
Visits to group homes, Ms. Burnett said, typically involve getting updates on a client’s
progress, providing input on the client’s daily routine, and assessing the appropriate ness
of the placement and the efficacy of the supports being provided. According to Ms.
Burnett, a key role of Service Coordinators is to identify gaps in the supports or services
being provided to an individual, and help clients and families fill such gap s. In some cases,
this may require Service Coordinators to advocate on behalf of the individual. Where
funded services are not available, the Service Coordinator will help an individual identify
and create a “natural support network” of family members and/or neighbours. A further
role, she said, is to help resolve conflicts between individuals and their families, and
between individuals/families and schools or other service providers. Ms. Burnett said that
in the event that conflicts (or other urgent matters) arise, Service Coordinators will attend
or convene meetings outside of the routine quarterly reviews .
24. Ms. Burnett testified that a typical workday for a Service Coordinator involves some
combination of the aforementioned work, and the administrative tasks that go along with
it (such as making notes, completing applications, and writing advocacy letters). F rom
time to time, however, Service Coordinators may be required to perform tasks that fall
outside their usual responsibilities. Such tasks, Ms. Burnett explained, include attending
psychological and behavioural therapy appointments, cleaning a client’s li ving space (if
the client’s health or safety is at risk), and helping clients move to new accommodation.
While Service Coordinators generally do not transport clients to appointments, Ms.
Burnett said that they are sometimes called upon to do so.
25. Ms. Burnett testified that with the onset of the COVID -19 pandemic, Service
Coordinators had to transition to working from home. This meant communicating with
families and service providers by phone, and conducting meetings over Zoom. When they
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were declared essential workers, Service Coordinators were assigned other duties that
did not fall within their job description. Principal amongst these duties was buying
groceries for group homes. According to Ms. Burnett, Service Coordinators performed
this duty until sometime in May 2020. Ms. Burnett performed the duty ten times between
April 15 and May 22, 2020.
26. Service Coordinators resumed many of their normal duties only after the lockdown
ended, and the community began to open up. Ms. Burnett’s list of in -person meetings
(complied from her daily planner) discloses that she had five in -person meetings in 2021,
and thirteen in-person meetings in 2022. In January 2023 (the month before the start of
this hearing), Ms. Burnett had three in-person meetings. In-person meetings, she said,
are typically about two hours long. They include meetings with school officials,
psychiatrists, and service providers. Ms. Burnett also does home and day program visits,
although she testified that she generally does not visit CLM residences .
27. The return to in-office work by Service Coordinators has been relatively slow
(having been interrupted on a couple of occasions by outbreaks of new variants of the
coronavirus). According to Ms. Burnett, Service Coordinators presently work at CLM’s
offices three days per week.
28. Ms. Burnett said that she believes Service Coordinators meet the eligibility
requirements for both the TWE and the PCE, in particular the second definition of
“personal client care” set out in the Guidelines (“providing necessary supports”). Ms.
Burnett maintained that without their services, individuals with intellectual or
developmental challenges would be unable to participate in the community, as most
families do not know how to “navigate the system”. However, in cross-examination, Ms.
Burnett agreed that as a Service Coordinator, her primary role is to “coordinate” supports
and services for CLM clients, and not to provide support or personal services herself. Ms.
Burnett agreed that, even when she is in clients’ homes, she does not assist clients with
daily living tasks such as feeding, toileting and personal hygiene. She also agreed that
she generally does not accompany clients to community activities, or take them shopping
or to movies. She acknowledged that such services (where they are required) are
provided by the client’s personal support worker. Ms. Burnett further acknowledged that
when she attends a medical appointment or hospital visit with a client, the client’s support
worker (if he or she has one) will also attend to provide personal care. Ms . Burnett agreed
that it is not her job to “supervise” clients, or to “monitor” their activities, but said that she
does “observe” clients and “monitor” their support plans to assess how the prescribed
supports are working for them. Ultimately, however, Ms. Burnett agreed that she provides
“case management” and “service coordination”.
ARGUMENT
The Union’s submissions
29. The grievances allege that CLM violated Article 5 (Management Rights), Article 23
(Wages), Schedule A (Classifications), and Letter of Understanding #6 (Additional
13
Funding) by discontinuing payment of the TWE to Service Coordinators, and by failing to
pay the PCE to Service Coordinators and ECERCs. The applicable provisions and
documents provide as follows:
ARTICLE 5 – MANAGEMENT RIGHTS
5.01 The Union acknowledges and recognizes that the management of the
Employer's operations and the direction of the working force are fixed exclusively
with the Employer and shall remain solely with the Employer except as specifically
limited by an express provision of this Agreement. Without restricting the generality
of the foregoing, the Union acknowledges that it is the exclusive function of the
Employer to:
a) Maintain order, discipline and efficiency;
b) Hire, assign, discharge, direct, promote, demote, classify, transfer, lay-off, recall,
suspend or otherwise discipline employees provided that a claim of discharge or
discipline without just cause by an employee who has completed his probationary
period may be the subject of a grievance and dealt with as hereinafter provided;
c) Make, enforce and alter from time to time rules and regulations to be observed
by all employees;
d) Determine in the interest of efficient operation and highest standards of services;
classifications, and hours of work, work assignments, methods of doing the work,
and the working establishment for any service and the standards of performance
for all employees;
e) Determine the number of personnel required, services to be performed and the
methods, procedures and equipment to be used in connection therewith.
This includes the right to introduce new and improved methods, facilities,
equipment and to control the amount of supervision necessary, and the increase
or reduction of personnel in any particular area.
ARTICLE 23 — WAGES
23.01 The Employer agrees to pay and the Union agrees to accept for the term of
this Agreement, the wages as set forth in Schedule " A" attached to and forming
part of this Agreement.
SCHEDULE " A"
Effective September 1, 2017
SUPPORT WORKER TEAM LEADER START $ 56,727. 07
SUPPORT WORKER START $ 49,014. 54
1 $ 51,059. 62
2 $ 53,199. 02
3 $ 54,647. 17
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LETTER OF UNDERSTANDING # 6 - ADDITIONAL FUNDING
[…]
Re: Additional Funding
This will confirm the understanding of the parties reached during negotiations for
the term of the collective Agreement which expires August 31, 2020.
In the event the Ministry of Children Community and Social Services (MCCSS)
allocates targeted wage funding enhancements to the Employer for bargaining unit
employees for the fiscal years covered by this collective agreement the Employer
shall:
1. Notify the Union,
2. Provide the Union with full disclosure regarding such targeted funding, and
3. Negotiate with the Union Negotiating Committee regarding the method of
allocation of the excess funding enhancements which exceed settlement costs
applicable to bargaining unit employees. It is understood and agreed that any
distribution made to bargaining unit employees from such an enhancement
received from MCCSS will be made in accordance with the directives and
guidelines under which it is received by the Employer.
30. The Union points out that the employees at issue fall within the same classification
(Support Worker) as those employees who continued receiving the TWE beyond October
31, 2021 and began receiving the PCE in April 2022. The Union asserts that CLM treated
employees in the same classification differently – and exercised its management rights in
an arbitrary and unreasonable manner – by discontinuing the TWE and failing to pay the
PCE as it did. OPSEU maintains that all members of the Support Worker “team” perform
duties that fall within the eligibility requirements for the wage enhancements and,
therefore, that none should be (or should have been) excluded. The excluded employees,
the Union insists, do frontline work. CLM, it says, has misrepresented their wor k to the
MCCSS and, as a consequence, the Ministry has not provided CLM the funding to pay
them the enhancements. The Union asserts that CLM should have made an effort to
persuade the Ministry that the work of Service Coordinators and ECERCs brought the
two groups within the eligibility criteria .
31. OPSEU submits that the SRPSA and O. Reg. 413/22 constitute “remedial
legislation” intended to help public service employers retain frontline workers by enabling
them to pay higher wages. It is clearly, the Union asserts, “benefits-conferring legislation”.
Accordingly, the Union says, the Act and the Regulation (including the guidelines for the
program prescribed by the Regulation) ought to be given a broad and liberal
interpretation.
15
32. OPSEU insists that the term “personal client care” is broad and expansive. It
includes, the Union points out, providing support to individuals to help them access and
participate in community activities, planning daily living routines, and observing and
monitoring. The Union maintains that Service Coordinators “provide necessary supports”
by meeting with clients and their families, resolving conflicts, and performing “hands -on,
day-to-day” support tasks. Service Coordinators, the Union insists, do “a lot of front line
work” to ensure that their clients participate in the community. It contends that this frontline
work amounts to more than 50% of the total volume of their work.
33. The Union maintains that ECERCs also perform a considerable amount of hands-
on, frontline work. Such work, it says, includes making regular visits to childcare centres,
observing children in other settings (for example, while receiving occupational or speech
therapy), and supporting children during transitions to school or new childcare programs.
The Union insists that ECERCs provide “direct support” to children by performing tasks
that “parallel” those set out in the Ministry guideline (i.e., feeding, toil eting, dressing, and
responding to emotional outbursts).
34. OPSEU relied on the following decisions in support of its position: Canadian Union
of Public Employees, Local 786 v St. Joseph’s Healthcare Hamilton , 2022 CanLII 73881
(ON LA); and, Trillium Health Partners v Canadian Union of Public Employees, Local
5180, 2021 CanLII 49776 (ON LA).
CLM’s submissions
35. CLM submits that the instant grievances are not about the Collective Agreement.
Rather, it says, they are about targeted wage enhancement programs implemented by
the MCCSS. This dispute, CLM maintains, is really about the eligibility requirements
imposed by the Ministry, not CLM’s implementation of the programs. CLM points out that
it has been unhappy with the eligibility requirements, which have ultimately given rise to
divisions amongst its employees. It points out that it paid the TWE to employees who di d
not qualify for it under the eligibility criteria, and that it lobbied the government to expand
eligibility for both wage enhancements. Nevertheless, it says, Service Coordinators
clearly fall outside the scope of both wage enhancement programs by virtue of the work
they do, and ECERCs do not qualify because their position is not funded by the Ministry.
36. CLM submits that there is no need to find that the statutes under which the wage
enhancement programs were created (the Emergency Management and Civil Protection
Act and the SRPSA) are “employment-related statutes” in order to establish my
jurisdiction to determine the grievances. CLM contends that even assuming the Acts are
employment-related statutes, it is clear that neither group is eligible for the wage
enhancements under the guidelines pertaining to both programs.
37. CLM points out that in order to be eligible for the wage enhancements, employees
must provide “personal client care” to individuals with special needs. “Personal client
care”, it notes, means providing direct assistance to clients with respect to such tasks as
feeding, dressing and personal hygiene, or supporting them to participate in community
16
activities. Any doubt about whether an employee meets the requirements, CLM says, may
be resolved by looking to the exclusions set out in the guidelines. CLM points out that
“employees whose primary functions relate to case management” are expressly
excluded. CLM submits that although it does not agree with the exclusion, it cannot
represent to the MCCSS that its employees – in this case, Service Coordinators – do
work that they do not do.
38. CLM submits that it is clear from the job description and Ms. Burnett’s evidence
that the role of Service Coordinators is one of “case management”, not front line support.
A “broad and liberal” interpretation of the eligibility guidelines, it insists, does not change
the fact that workers who primarily perform case management duties are ineligible for the
TWE and PCE. CLM asserts that the principal duties of the position – as set out in the job
description and explained by Ms. Burnett – relate to coordinating and managing support
for clients, not to providing personal care. Service Coordinators, it points out, spend only
a small percentage of their time with clients – a “far cry”, it says, from the amount of time
support workers do. CLM notes that Ms. Burnett, in fact, admitted that even when she is
with clients who require personal care, she does not provide that care herself. She also
admitted that she does not support clients when they participate in community activities.
CLM submits that even if they do provide personal care and community support
occasionally, Service Coordinators do not qualify for wage enhancements under the
guidelines.
39. With respect to the ECERC position, CLM points out that it was the unchallenged
evidence of Mr. Tansley that the position is funded by the Region of Peele, and not by
the MCCSS. Accordingly, it says, the ECERC position has “no relationship” to the
Ministry. CLM asserts, further, that ECERCs do not have a claim to the PCE based the
on the possibility that a different ministry ultimately funds their program
40. Ultimately, CLM contends, Service Coordinators and ECERCs were never eligible
for the wage enhancements. CLM maintains that out of a sense of fairness, it paid the
TWE to both groups for as long as it was in a financial position to do so, and lobbied the
Ontario government to change the eligibility requirements so that both groups would
qualify. CLM insists that since October 2021, it has been compelled to “apply the rules”
as written, and has taken no pleasure in doing so. Even if the MCCSS guidelines were
part of the Collective Agreement, CLM submits that its application o f them would not
constitute a violation of the Agreement. CLM maintains, however, that the guidelines are
not part of the Collective Agreement, and that a violation of them would not create an
arbitrable issue.
41. CLM contends that the grievances ultimately allege only that it violated the
Ministry’s guidelines. CLM submits that the grievances do not allege – and the Union did
not argue – that CLM did not pay the grievors in accordance with the wage grid (Article
23.01 and Schedule “A”). CLM asserts that Letter of Understanding #6 does not apply
but, even if it did, CLM “made distributions” to employees in accordance with the
guidelines under which funding for wage enhancements was received. With respect to
the allegation that it exercised its management rights unreasonably, CLM submits that as
17
the wage enhancement programs are not part of the Collective Agreement, they are not
subject to any limitations relating to the exercise of CLM’s rights under Article 5. Even if
its administration of the programs could be characterized as an exercise of ma nagement
rights, CLM insists that far from being “unreasonable”, its conduct in respect of the
programs has been nothing but “compassionate”
42. According to CLM, it does not matter that Service Coordinators and ECERCs fall
within the same classification as other CLM employees who qualify for the wage
enhancements. Eligibility for the enhancements, it says, turns on the duties a worker
performs, not their classification. On this matter, CLM insists, it must be “upfront” with the
entity funding the benefit.
The Union’s reply
43. In reply, the Union asserts that the issue in these grievances, at its core, that the
CLM is treating employees in the same job classification differently. The Union maintains
that the employees should have been – and ought to be – treated the same.
ANALYSIS
44. At issue in the grievances is whether CLM violated the Collective Agreement
between it and the Union by discontinuing the Temporary Wage Enhancement to Service
Coordinators in November 2021, and whether it violated the Collective Agreement by
failing to pay Service Coordinators and ECERCs the PCE starting in April 2022.
45. The Employer did not raise a preliminary objection to my jurisdiction to decide the
grievances on the basis that the statutes under which the wage enhancement programs
were created (the Emergency Management and Civil Protection Act, the Reopening
Ontario Act, and the Supporting Retention in Public Services Act, 2022 ) are not
“employment-related statutes”. Nevertheless, I feel compelled to comment on the matter
of my jurisdiction as, to some extent, it bears upon my determination of the merits of the
grievances.
46. While the Emergency Management and Civil Protection Act and the Reopening
Ontario Act are not, on their face, employment-related statutes, Ontario Regulation
241/20 (SPECIAL RULES RE TEMPORARY PANDEMIC PAY) – made under the former
Act and continued under the latter – is clearly employment-related. The SRPSA – the
statute under which the Permanent Compensation Enhancement program was
established – is also clearly employment-related. That said, determining the instant
grievances does not require me to interpret O. Reg. 241/20, the SRPSA, or O. Reg.
413/22 (the Regulation prescribing the PCE). However, as is clear from the parties’
positions on the grievances, I am required to interpret the guidelines for the administration
of the wage enhancement programs created under the SRPSA and Regulations 413/22
and 241/20. The decisions put forward by OPSEU in its argument (Trillium Health
Partners, supra, and St. Joseph’s Healthcare Hamilton , supra) support the proposition
that an arbitrator may regard guidelines created in conjunction with a regulation in the
18
same manner that they would the regulation itself. That is, if that the regulation (or
enabling statute) is “employment-related”, arbitrators may interpret the guidelines in the
same manner that they would the regulation or statute.
47. As the grievances are brought under – and concern alleged violations of – a
collective agreement, I interpret the guidelines for the sole purpose of determining
whether the collective agreement between the parties has been violated. I start by noting
that the wage enhancement programs do not form part of the Collective Agreement, and
have only a tenuous connection to it. That connection is through Letter of Understanding
#6 (the “LOU”), which deals with additional funding. The Union alleges the Employer
breached the LOU when it stopped paying Service Coordinators the TWE. For its part,
CLM contends that the LOU does not apply in the circumstances of the wage
enhancement programs at issue here.
ECERCs
48. The ECERC grievance concerns the Permanent Compensation Enhancement.
The Union’s position that ECERCs are entitled to the PCE is premised on the claim that
they “deliver direct support services in the social services sector”.
49. As is set out under the heading, ”Eligibility Requirements”, the “Guidelines for the
Administration of the [PCE] Program” apply to “MCCSS -funded organizations: Transfer
Payment Recipients (TPRs), placing agencies and Societies that administer the Program
for their own staff” and to “Outside Paid Resources (OPRs) / third -party services providers
[…]”. CLM does not argue that it is not an MCCSS-funded organization. Rather, it argues
that in respect of its Early Childhood Education services, it is funded by th e Region of
Peel. The Union did not adduce evidence to contradict that assertion, or to show that the
Region receives funding for ECE services from the provincial government. Accordingly
(and in view of the fact that the services are formally known as “Pee l Inclusion Resource
Services”), I find that funding for the ECERCs delivered by CLM comes from the Region
of Peel.
50. CLM contends that because ECERCs are paid out of the funding it receives from
the Region, they are not eligible for the PCE. I agree. It must be the case that the PCE
program is intended to enable MCCSS-funded organizations to pay enhanced wages to
eligible employees who perform work that is ultimately paid for by the MCCSS funding. In
other words, it cannot be the intention of the Program to enable organizations to pay the
enhancement to employees who perform work that is not paid for out of MCCSS funding.
To some extent, this limitation is made clear by the “In -scope Programs” set out in
Appendix A to the guidelines. Early Childhood Education services are not amongst the
programs set out in Table 1 (see, in particular, “Developmental Services – Children’s). I
therefore find that because their position is not funded by the MCCSS, ECERCs are not
eligible for the PCE.
51. In consequence, I find that CLM acted in accordance with the guidelines when it
determined not to “distribute” the PCE to ECERCs. Assuming that the rights or obligations
19
under Letter of Understanding #6 give rise to a duty on CLM to exercise its management
rights in a reasonable, non-arbitrary manner, I also find that CLM has not acted in an
unreasonable or arbitrary manner in applying the guidelines. There being no eviden ce
that CLM failed to pay ECERCs wages in accordance with Schedule “A”, a breach of
Article 23 of the Collective Agreement is also not established.
52. The grievance of the ECERCs is therefore dismissed.
Service Coordinators
53. The Service Coordinators’ grievances concern both the Temporary Wage
Enhancement and the Permanent Compensation Enhancement. The TWE guidelines –
like those concerning the PCE – apply to “MCCSS-funded organizations” and “Outside
Paid Resources (OPRs) / third-party services providers”. As CLM does not dispute that
funding for its community living services comes from the MCCSS, the issue of whether it
was/is obliged to pay Service Coordinators the wage enhancements falls to be
determined on whether Service Coordinators are “eligible workers” under the programs’
guidelines.
54. For ease of reference, the eligibility requirements for workers are set out (in
abbreviated form) below. The requirements are worded somewhat differently in the two
documents:
TWE: To be eligible, work functions regardless of job class must involve the
primary provision of personal client care to individuals with special needs,
including developmental disabilities, physical disabilities, medical issues and/or
behavioural challenges. Eligible workers are responsible for providing assistance
in daily living tasks, personal care and support, and ensuring the personal safety
and welfare of individuals in residential, community and home settings, and/or the
provision of caregiver respite. This care may be performed in direct proximity to
the client involving physical interaction, or virtually/remotely.
PCE: Eligible employees have the primary employment responsibility to
provide at least one of the following:
• personal client care to persons with special needs, including
developmental disabilities, physical disabilities, medical issues, or
behavioural challenges; or
• caregiver respite; or […]. [emphasis added]
55. “Provision of personal client care” is defined in both guidelines. Again, there are
slight differences in the text of the two documents (the differences are set out in bolded
text):
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TWE: The provision of personal client care includes:
• directly assisting clients by providing personal care (such as feeding,
dressing, personal hygiene, toileting, managing medication),
• providing necessary supports required for clients to access and
participate in community activities,
• observing, planning daily living routines, supervising clients and
monitoring safety risks.
Frontline supervisors and team leads performing these functions on a regular or
ad-hoc basis are also eligible.
PCE: The provision of personal client care includes:
• directly assisting clients by providing personal assistance in daily
living tasks and personal care (such as feeding, dressing, personal
hygiene, toileting, managing medication),
• providing necessary supports required to assist a person [with special
needs] to access and participate in community activities , or
• observing, planning daily living routines, supervising clients, monitoring,
and ensuring the personal safety and welfare of individuals .
In the case of a frontline supervisor or team lead, the employee is required to
perform the work described above in this table 50 per cent of their work hours.
56. Neither party sought to make a distinction between the eligibility requirements of
the two guidelines on the basis of the differences in wording. It is my view that despite the
differences in text, the eligibility requirements for employees under the wage
enhancement programs are functionally the same. CLM argued that the eligibility
requirements are concerned with job duties, rather than job classifications. That
proposition is supported by the text of the TWE’s eligibility provision, which includes the
phrase, “regardless of job class”. Accordingly, I agree with the Employer that the eligibility
requirements are concerned with job duties, and that eligibility for the wage
enhancements does not turn on a worker’s job classification.
57. Both guidelines contain express exclusions to eligibility for “employees whose
primary functions relate to case management, maintenance, food service, and
administration”.
58. CLM’s principal position with respect to the Service Coordinators is that they are
ineligible for the wage enhancements because they are “employees whose primary
functions relate to case management”. It also contends that Support Coordinators do not
meet the eligibility requirements for the TWE and PCE because they do not have the
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primary employment responsibility of providing personal client care to CLM clients. I agree
with both positions.
59. I start by observing that their job title alone gives a pretty good indication of the job
duties of Service Coordinators (or, more precisely, Support Worker – Service
Coordination). If more is needed, that is provided by the job description, which specifie s
that foremost among their “major responsibilities” is to “provide service coordination
support to people and their families”. Their job, as “described” in the document, is to
coordinate services for individuals and families receiving community living support from
CLM. Nowhere in the document does it specify that it is the job of Service Coordinators
to deliver services.
60. Certainly, the definition of “personal client care” in both guidelines uses the word
“includes” before setting out duties that meet the definition. According to the principle
identified by Arbitrator Randazzo in Trillium Health Partners, the word “includes” should
be regarded as “an expansive word indicating an extension or enlargement”. I do not
disagree with that principle. However, expansion or enlargement of a term by the use of
the word “includes” or “including” is not without bound s. The enumerated items that follow
either word necessarily inform (or limit) the how far the meaning of the term in question
can be extended or expanded. Such items can generally be found to have a common
characteristic or feature. In the guidelines at issue here, the common feature of the duties
enumerated in respect of “the provision of personal client care” is that they involve close
interaction with individual CLM clients on a daily (or routine) basis. Ms. Burnett’s evidence
regarding her own work supports the view that Service Coordinators do not interact with
individual CLM clients to such an extent.
61. As Ms. Burnett explained, the job of a Service Coordinator is to help individuals
and families determine goals (for independent living and community involvement), and to
help them obtain the supports and services required for the individual to achieve thos e
goals. While the job does involve meeting with CLM clients from time to time – and,
according to Ms. Burnett, attending medical or other appointments with clients – it does
not involve providing “personal client care” in the sense of assisting clients in eating,
dressing, personal hygiene, and the like. That care, according to Ms. Burnett, is provided
by other support workers or service providers. Ms. Burnett’s testimony also confirms that,
in the main, Support Coordinators do not provide support to clients to assist them in
accessing and participating in community activities. Rather, their role in facilitating
community involvement is to help clients obtain the supports they need to participate in
community activities.
62. Ms. Burnett’s evidence suggests that while Service Coordinators may make
suggestions with respect to clients’ daily living routines they do not, themselves, plan such
routines. Her evidence also suggests that they do not – in the normal course of their daily
work – supervise clients in day-to-day activities or monitor safety risks to ensure the safety
and welfare of clients. Service Coordinators may “observe” and “monitor” clients, but only
for the purpose of assessing the efficacy of their support plans, a ssessing the
22
appropriateness of their housing arrangements, and identifying gaps in the services being
provided to them.
63. Ultimately, Ms. Burnett’s evidence supports the view that Service Coordinators do
not spend much of their work time in direct proximity to clients (either physically or
virtually), and the conclusion that providing personal client care is not their primary
employment responsibility. Her evidence also supports the conclusion that Service
Coordinators’ primary functions relate to case management. On either ground, Service
Coordinators are not “eligible employees” under the TWE and PCE guidelines, and,
therefore, do not qualify for either wage enhancement (The Union did not argue that
Service Coordinators are frontline supervisors or team leads).
64. Accordingly, I find that CLM acted in accordance with the guidelines when it
determined not to “distribute” the TWE to Service Coordinators (after October 31, 2021),
and not to “distribute” the PCE to Service Coordinators starting in April 2022. Assuming
that the rights or obligations under Letter of Understanding #6 give rise to a duty on CLM
to exercise its management rights in a reasonable, non -arbitrary manner, I also find that
CLM has not acted in an unreasonable or arbitrary manner in applying the gui delines. In
fact, the converse is true, as CLM has – since at least December 2020 – gone to
extraordinary lengths to ensure that all of its employees received wage enhancements.
There being no evidence that CLM failed to pay Service Coordinators wages in
accordance with Schedule “A”, a breach of Article 23 of the Collective Agreement is also
not made out.
65. The grievances of the Service Coordinators are therefore dismissed.
Dated, this 16 November, 2023 in the City of Toronto.
“Kelly Waddingham”
Kelly Waddingham