2152/H IN THE MATTER OF AN ARBITRATION BETWEEN SCARBOROUGH HEALTH NETWORK (“the Hospital” / “the Employer”) - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“the Union”) CONCERNING AN INTEREST ARBITRATION UNDER THE HOSPITAL LABOUR DISPUTES ARBITRATION ACT, RSO 1990, c H-14 (HLDAA) BOARD OF ARBITRATION Christopher Albertyn – Sole Arbitrator APPEARANCES For the Union: Michèle Dawson Haber, Senior Research Officer Steve Nield, BPS Negotiations and Research Supervisor Kingsley Kwok, President, Local 575 Wendy Alcorn, Vice-President, Local 575 Katerina Argyris, Steward, Local 575 Claire Osborne, Steward, Local 575 Wendy Lee, Steward, Local 575 Richard Masihlall, Steward, Local 575 For the Hospital: Bob Bass, Bass Associates Professional Corporation Mary-Claire Bass, Bass Associates Professional Corporation 2152/H Dennis Fong, Director, Human Resources and Organizational Development Shirley Ward, Manager, Labour Relations Petra Sheldrake, Director, Laboratory Services Shelly Dorazio, Director, Pharmacy Services Natalie Warrick, Manager, Allied Health Martin Goldstein, Manager, Diagnostic Imaging Susan Bull, Manager, Nutrition and Food Services Barbara Rybski, Business Partner, Labour Relations J.P. Ah-Nim, Business Partner, Labour Relations Hearing held in TORONTO on October 16 and 17, 2019. Award issued on October 23, 2019 1 AWARD 1. This is an interest arbitration under the Hospital Labour Disputes Arbitration Act, RSO 1990, c H-14 (“HLDAA” or “the Act”). 2. The Employer is a hospital in the City of Toronto. 3. This award arises from the merger of what were formerly the Birchmount and General sites of The Scarborough Hospital with the Centenary site of the Rouge Valley Health System. The merger of these hospital sites had the effect of combining, within the same paramedical bargaining unit, 252 formerly non-union employees, 44 former CUPE-represented employees, 366 employees represented by OPSEU Local 311 from the Centenary site, and 226 employees from the former Scarborough General Hospital, represented by OPSEU Local 575. 4. Pursuant to an application under the Public Service Labour Relations Transition Act, 1997 (“PSLRTA”), the Union emerged as the bargaining agent for all of the paramedical employees of the newly structured Hospital. 5. The Union therefore now represents a bargaining unit of approximately 900 employees. 6. This award provides the first collective agreement for the parties, reconstituted as described. 7. In coming to the conclusions reached in this award, it has been necessary to take account of the distinct and, in instances, very different terms and conditions of employment that applied to the employees who are now to be treated alike within the same bargaining unit. 2 8. In most respects, particularly as regards wages, the formerly non-union employees were significantly better paid than the unionized employees. Their current wages are notably above and inconsistent with the provincial norms for their classifications. The former CUPE employees were covered by the Central CUPE and Participating Hospitals agreement. The Centenary site employees were in a bargaining unit that participated in OPSEU’s Central bargaining table and their rates and terms of employment are therefore wholly consistent with those in the provincial agreement. Those from the former Scarborough Hospital sites did not participate in the Central process and determined their terms and conditions of employment in local bargaining, though that bargaining typically followed the provincial norm. However, they were on the brink of negotiating a fresh collective agreement when the steps to merge the sites began. This meant that they have received no adjustment to their rates of pay since 2015. They have therefore been without any increase or improvement for over four years. 9. This award seeks, as much as can be done, to reconcile these very different circumstances and conditions that apply to the different groups of employees in the new bargaining unit in order to provide a common standard that will apply from now on. Term of the agreement 10. The agreed term of the collective agreement is from May 9, 2018, when notice to bargain was given, to March 31, 2022. The parties have agreed to this term in order to make their collective agreement’s duration the same as that of the OPSEU – Participating Hospitals provincial, Central agreement. 3 Agreed upon items 11. The renewal agreement will consist of the items agreed by the parties themselves, which they have signed off on, which are incorporated into this award, and the items described below on which the parties made submissions to me. General considerations 12. I have carefully reviewed and considered all of the submissions, and I have taken account of all of the relevant statutory and jurisprudential factors recommended to us by the parties, particularly, comparability, replication, total compensation and demonstrated need. 13. All Union and Employer proposals not specifically addressed below are dismissed. The wage increases awarded are, where applicable, retroactive to the dates specified. Unless a specific date is set for an item awarded, it will be effective from the date of the award. 14. There are three significant general issues in dispute between the parties, besides the specific disputes described below. The first concerns what is to be done regarding the formerly non-union group of employees who are paid well above the industry norm, and who have superior benefits. The second issue concerns the possible application of Bill 124, the Protecting a Sustainable Public Sector for Future Generations Act, 2019. Bill 124, introduced on June 5, 2019, which has not been legislated. The third issue concerns the extent of mobility that will apply to employees as between the different Hospital sites. 4 Wages and Benefits for the formerly non-union employees 15. Typically, upon a hospital merger, the harmonization of like classifications goes to the higher rate: The Niagara Health System and Service Employees International Union, Local 204, July 5, 2002 (Kaplan) at p. 2-4, Participating Hospitals and Canadian Union of Public Employees, March 4, 2011 (Petryshen), Trillium Health Partners and CUPE, December 9, 2015 (Kaplan); Scarborough Health Network v Canadian Union of Public Employees, Local 5852, 2019 CanLII 58078 (ON LA) (Gedalof). 16. The Union argues strenuously that I should follow that model in this case and set the formerly non-union employees’ wage rates as the rates applicable to all employees. The difficulty with this approach is that the former non-union rates are out of alignment with other unionized rates in the province. Wages for the paramedical classifications typically represented by OPSEU are bargained Centrally at a provincial table and are therefore consistent across the province. The provincial norm sets the standard for wages across the province for those hospitals that are not part of Central bargaining. 17. If the former non-union employees’ wage rates were to set the standard for the Hospital, the result would be to put the Hospital’s wages out of line with every other hospital in the province. That would run counter to the model for central bargaining, where terms and conditions are consistent across all the hospitals. So, while it may be appropriate to bring the wage rate to the higher in the event of a merger where there is no strong outside comparator like a provincial standard, that is not the case here. The correct standard for each classification that falls within the Union’s Central, provincial agreement is the provincial wage rate for that classification. That is the standard that must apply to the same classifications in the new Hospital paramedical bargaining unit. 18. It was also noted by the Hospital that non-union compensation has been 5 structured in part on the concept that not-for-cause termination is normative for non-union employment, unlike unionized staff which enjoy protection against such termination under their collective agreement. 19. Given this conclusion, what is to be done with the former non-union employees and classifications from bargaining units whose wages are above those of the provincial standard? As the Union submits, the affected employees should not suffer any disadvantage as a result of the amalgamation. They should not be worse off and should be able to retain their superior conditions for the duration of this collective agreement. I agree and therefore award that these employees are to retain their superior wage rates. Their wages will be red-circled on the grid until such time as the awarded wage grid matches and passes their own. 20. There is a second aspect to this first issue and that is the insured benefit program. Like their wages, the insured benefits of the former non-union employees are considerably superior to those of the other employees. The Union proposed that I award all members of the bargaining unit the insured benefits contained in the non-union program. The same principles apply to the non-union employees’ insured benefits as to their wages. The standard should be the provincial norm as contained in the Central hospitals’ agreement; and equally the non-union employees should not be disadvantaged. They should be entitled to retain their superior insured benefits for the duration of the collective agreement, and I so award. As to the differences in the various collective agreements for insured benefits, I award the insured benefit program in existence for the members of Local 311 at the Centenary site for all bargaining unit members apart from the former non-union, effective January 1, 2021. 21. Despite this ruling regarding the benefits continuation for the former non- union employees, these former non-union employees should be entitled to annual opportunities each January 1st, to opt into the new OPSEU 575 Benefit Plan, and I 6 so order. If they make that decision to opt-in to the new OPSEU 575 Benefit Plan, that decision is then irreversible. Bill 124 22. The second general issue concerns the application of Bill 124.