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IN THE MATTER OF AN INTEREST ARBITRATION
BETWEEN:
MON SHEONG FOUNDATION
RICHMOND HILL LONG-TERM CARE CENTRE
(THE "EMPLOYER")
-ANDSERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1 CANADA
(THE "UNION")
BOARD OF ARBITRATION
ROBERT J. HERMAN
HAROLD CALEY
ALLAN SPERLING
APPEARANCES
FOR THE EMPLOYER
DAVID K. DORWARD
EVALIU
STELLA LEUNG
SHERRYLI
FOR THE UNION
HELEN NOWAK
THOMASLI
RICARDO MCKENZIE
GARCELI
A HEARING WAS HELD IN TORONTO ON OCTOBER 19, 2013
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AWARD
1.
This is the interest arbitration of the first renewal Collective Agreement between
the Richmond Hill Long-Term Care Centre (the "Richmond Hill Centre") owned and
operated by the Mon Sheong Foundation ("Mon Sheong"), a non-profit charitable
organization that provides a variety of services to the Chinese community in the Greater
Toronto Area ("GTA").
Mon Sheong operates two other long-term care facilities in
the GTA, one on D' Arcy Street in the City of Toronto and one in Scarborough.
Employees in similar bargaining units in these Homes are represented by CUPE, and
each site has its own collective agreement. All three Homes are funded by the
Ministry of Health and Long- Term Care (the "Ministry") and through capital
fundraising.
Funds raised through donations and other fund raising activities cannot
be utilized for operating costs such as wages and benefits.
2.
The first Collective Agreement, also determined by interest arbitration, expired
on December 13, 2012, and as the parties have not agreed on the term of the new
Collective Agreement, pursuant to the provisions of the Hospital Labour Disputes
Arbitration Act ("HLDAA"), the new collective agreement shall run from December 14,
2012 until December 13, 2014.
3.
I
The bargaining unit is composed of approximately 25 RPN's, 124 Health Care
Aides/Personal Service Workers, 12 Program Assistants, 23 Dietary Aides, 14
Housekeeping/Laundry Aides, 3 Cooks, 5 Janitors, 3 Maintenance Workers, and 5
/
---~---
2
Night Watchmen. Approximately 21% of the employees in the bargaining unit are
full-time and 79% part-time (including two casuals).
4.
An interest arbitration board faced with determining the terms and conditions of
a collective agreement will attempt to replicate as best it can the terms and conditions
that the parties themselves would have negotiated had they been able to resolve all
matters in dispute. Because of this, other collective agreements ("comparator
agreements") will be of considerable guidance, for they help the board of arbitration to
determine what are considered to be the normative terms of collective agreements for
similar types of facilities. Generally speaking, parties ought not to expect a board of
arbitration to award changes outside the normative range, for such "breakthrough"
clauses would not likely replicate the bargain the parties might themselves have made.
5.
Boards of arbitration will often give more weight to comparator collective
agreements with the same union, since the board is attempting to replicate the bargain
the parties before us might have reached and it follows that reference to comparator
collective agreements with the same union may be of particular assistance.
Here, the
Union submits that the appropriate comparators are other SEIU long-term care facilities
across the province, both those covered by the provisions of the SEIU Central
Agreement for Long-Term Care Homes (the "Central Agreement") and those with
individually bargained collective agreements (non-central SEIU Homes), as well as the
two other Mon Sheong "sister" Homes in the GTA. We accept that these agreements
are valid comparators.
3
6.
For its part, the Employer submits that the most appropriate comparators are
other non-profit and/or charitable long-term care facilities in York Region, particularly
those with culturally focused programs and services, and the Home it operates in
Scarborough (but not the Home it operates on D' Arcy Street in Toronto, as it maintains
that the D' Arcy facility is materially different and not located sufficiently close to the
Richmond Hill Home).
7.
We also find these Homes to be appropriate comparators.
In our view, primary comparators will include other SEIU collective agreements
applicable to facilities in the same sector (long-term care homes), particularly where
these comparator homes are located near or in the same area of the province.
respect, we consider the GTA to be the relevant geographic area.
In this
Since Mon Sheong
operates two CUPE-represented Homes ofthe same nature in the GTA and it has
recently negotiated new collective agreements for these other Homes, they also are
considered to be primary comparators.
Indeed, the settlements reached with its two
other Homes are perhaps of the greatest assistance in determining the appropriate terms
and conditions of the Collective Agreement here in issue, for they are likely the best
indicator of the agreement the parties themselves might have reached had they been
able to resolve these issues themselves.
8.
The bargaining unit here is only recently unionized and this will be its second
collective agreement. Whatever the theoretical justification for achieving the same
terms and conditions for SEIU employees at the Richmond Hill Centre as are contained
in other collective agreements at SEIU-represented long-term care facilities, transition
to those terms must take into account the increased costs to the Employer, and such
4
transition is therefore appropriately gradual or incremental. The reality is that it may
take a recently organized bargaining unit a number of rounds of bargaining to negotiate
or be awarded the same terms and conditions as are applicable at long established
bargaining units.
9.
We have considered and taken into account the criteria set out in HLDAA in
reaching the decisions set out below. We note that the Employer explicitly notes in its
Brief that it is not making an "ability to pay" argument, a position it repeated during the
hearing. At the same time, however, it asserts that the Board must be mindful that all
of its funding for labour costs comes from the Ministry and that funding has not kept
pace with the increases in wages and benefits sought by the Union.
10.
The new Collective Agreement will contain all changes agreed upon by the
parties, the amendments awarded below and the continuing provisions of the expired
collective agreement.
All changes are effective the date ofthe Award unless
otherwise indicated.
11.
We consider the proposals in the order set out in the Union Brief.
Wages
12.
The Union seeks a 2.0% general wage increase ("GWI") effective as of
December 14, 2012, and a further 2.0% effective as of December 14, 2013.
It also
requests additional increases for catch-up purposes, which it submits are warranted in
order to reduce the gap between the wages of employees in this bargaining unit and
5
employees in the same classifications working elsewhere. It asks for the following
catch-up adjustments, to be applied in each year prior to the GWI for that year:
RPN
$0.50 in each year
PSW
$0.50 in each year
Cook/Maintenance
$0.20 in each year
Housekeeping/Laundry/Dietary
$0.50 in each year
Activity Aide
$0.25 in each year
The Employer proposes 0.0% increases in each year, and in the alternative that
only lump sums be awarded, and in the further alternative, that no retroactivity be
applied to any increases.
13.
In terms of increases agreed to by the Employer for its other employees for the
relevant period, on or about Aprill8, 2013, Mon Sheong signed Memoranda of
Agreement with the two CUPE bargaining units at its other two Homes in the GTA, by
which it agreed to four year agreements, running from July 2009 to July 2013, with
across-the-board increases of 2.5%, 2.0%, 2.0%, and 2.0%, and catch-up RPN
adjustments in each of2008 and 2009 of$0.30 and a one-time adjustment for other
classifications of$0.25. With respect to non-union and management staff, the
Employer provided a 2.0% increase in July 2012 and a further 1.5% increase on July
2013.
14.
The Union compares wages received by employees in the bargaining unit with
wages received by SEIU-represented employees working in the long-term care sector
elsewhere, after application of the Weatherill award of September 2011 for the SEIU
and the Participating Nursing Homes for the 2011-2012 contract cycle.
It points to the
6
wages earned by employees in the same classifications covered by both the Central
Agreement and non-central collective agreements, noting that employees at the
Richmond Hill Centre fall below the average wage rates of both groups of SEIU
collective agreements. The Union emphasizes that the Employer agreed to increases of
2.0% for the two CUPE units at its other GTA Homes, and of2.0% and 1.5% for its
non-union staff. With respect to ability to pay, the Union emphasizes that the
Employer does not argue any inability to pay, it is a charitable home that has the ability
to raise ·funds, and there has been a steady increase in government funding for longterm care facilities every year since 1996. Despite Memoranda or statements :from the
Ministry that indicate there may be reduced funding, the Union notes that the total
envelope funding for 2013 increased in the amount of 1.87%.
The wage grid at this
Home has three steps over a period of four years, and the Union submits that this
progression is slower than at most of the Homes represented by SEIU, so that the costs
of awarded wages increases would be less at this Home and any catch-up adjustments
would have a more incremental impact.
15.
The Employer argues that the Union is seeking to achieve instant parity with the
central SEIU wage rates or with other SEIU bargaining units, but these other bargaining
units have existed for some time and it is not appropriate that the employees be moved
at once to the same wage rates. With respect to the raises it implemented for nonunion personnel, the Employer submits that there will be no further salary increases
until December 2014, at which time there will be a salary review and the introduction
of a new pay for performance system. With respect to the recently negotiated
increases for the two CUPE bargaining units at its other GTA Homes, it emphasizes
7
that there were only wage increases and no increases in benefits. Although the
Employer acknowledges that it is not making an "ability to pay" argument, it asks the
Board to take into account that it receives all its funding for personnel costs from the
Ministry and that it received a letter, dated December 19, 2012, from the Assistant
Deputy Minister that stipulated that for two years collective agreements were not to
allow for increases in compensation, including increases in wages, performance pay
and benefits. Further, it states, a January 2013 Memorandum from the Interim Director
of the Health System Funding Policy Branch of the Ministry, with respect to the Case
Mix Index ("CMI") Results for 2011/2012, indicated a funding reduction of 5.29% in
the Home's 2014 CMI based funding from April2013 to the end ofMarch 2014, and a
further reduction of at least 3.50% for the period from April2014 until March 2015.
The Employer argues that given these funding realities, even with no increases in total
compensation, staff layoffs in the SEIU bargaining unit will be necessary.
The
Employer notes that it cannot legally use donated funds for operating costs such as
labour costs, and cannot turn to local government for additional funds.
It argues that
recent interest arbitration awards have recognized that current economic conditions
warrant limited wages increases, if any, and have also favoured the payment of lump
sums in lieu of increases in wages.
16.
For a number of reasons, we do not find persuasive the reasons raised by the
Employer in support of its position that there should be no wage increases. First, the
Ministry's stipulation that there shall be no increases in compensation is not legally
binding, even though the government has at its disposal the means to issue legally
binding directives (for example, through legislation, regulation or a directive made
8
binding by previous legislation). As well, it is difficult to know what weight to give to
the Ministry's stipulation since the government itself has agreed to wages increases for
the period in issue. Second, although the Ministry has indicated there will be funding
reductions in the Home's CMI funding in the future, funding related to the CMI is
based upon residents' care needs, and any reduction in funding will likely result in
accompanying reductions in staffing needs, and therefore in lower labour costs. Third,
the Employer does not assert an inability to pay, and as a result has not produced its
financial statements in support of an inability to pay. The fact that it does not argue
any inability to pay diminishes the strength of any argument premised upon a projected
or announced reduction in funding.
17.
Significantly, when Mon Sheong negotiated settlements with the two CUPE
bargaining units at its other GTA Homes, it had already been advised by the Ministry of
the proposed CMI funding reductions for 2014 and 2015.
Even so, on April18, 2013
it nevertheless agreed to increases in wages in each of four years for these two other
bargaining units, increases that included 2.0% from July 2011 to June 2012, and a
further 2.0% from July 2012 to June 2013. Thus, in circumstances that appear quite
similar to those before us (insofar as funding issues are concerned), for two bargaining
units at its other two Homes in the GTA, the Employer agreed to increases of2.0%
annually. It also agreed to give non-unionized staff at the Richmond Hill Centre
increases of2.0% as of June 2012 and a further 1.5% as of July 2013.
Since we are
trying to replicate the agreement the parties themselves would have reached had they
been able to settle this matter themselves, it is hard to understand why negotiated
settlements reached by Mon Sheong with respect to similar bargaining units in these
9
other two Homes, and the increases it voluntarily gave to its non-union staff, ought not
to be the basis of the increases we award.
No persuasive reason has been presented
for why the employees at the Richmond Hill Centre ought to receive lower wage
increases than the increases negotiated by the Employer for its other similar Homes in
the same geographic area for the relatively similar time period. While the time frames
of those agreements and the Collective Agreement in issue here are not the same, they
overlap and apply to periods relatively close in time. Taking all these factors into
account, at least for 2013 we consider it appropriate to replicate what other Mon
Sheong employees have received for some or all of2013, which was 2.0%.
18.
With respect to 2014 increases, some negotiated or awarded agreements have
included lump sums in lieu of percentage increases, while other agreements have
included wage increases in the 1.0% to 1.5% range because of the relatively poor
economy and the poor short term economic prospects. Based upon the current
economic conditions in the province, the funding allocations, the increases agreed to by
the Employer for its other staff, the total compensation costs of the implementation of
this Award, the continuing justification for catch-up for employees in this bargaining
unit, and the HLDAA criteria, a material wage increase is also warranted for the second
year of the contract.
19.
In the result, there shall be an across-the-board wage increase effective as of
December 14, 2012 of2.0%, and further across-the-board increase of 1.4% effective as
of December 14, 2013 (i.e. both retroactive as of those dates).
Retroactive payments
10
are to be made by separate cheque to all employees within three pay periods of the
issuance of the Award.
20.
With respect to the additional adjustments requested by the Union for catch-up,
while we acknowledge the reality that many employees working at the Richmond Hill
Centre will still be paid somewhat lower wages than are paid at the other two Mon
Sheong Homes in the GTA and at other comparators in the GTA, this Horne is only
recently organized, and the across-the-board increases awarded will result in significant
costs for the Employer, costs that mitigate against further adjustments in individual
classifications at this time.
The across-the-board increases awarded will provide for
some measure of catch-up, but no further additional increases are awarded.
Article 7.07- Pay for Union Stewards/Committee Members
21.
The Union proposes changes that it asserts will clarify that lost wages will be
paid to stewards and Negotiating Committee members for negotiations up to arbitration
and not just until conciliation, and for the investigation and processing of grievances.
The Employer opposes any such changes, arguing that most comparators do not have
such a requirement.
The Collective Agreement currently requires the Employer to pay the wages of
representatives and Committee members dealing with grievances up to but not
including the arbitration stage, and with respect to negotiations up to but not including
conciliation. In similar clauses in the collective agreements at the two other GTA
Homes, the obligation of the Employer to pay lost wages does not cease at conciliation,
and we are of the view that the same requirement ought to apply here. Accordingly,
11
we direct that Article 7.07 be amended by deleting the words "up to but not including
conciliation".
Article 7.08- Meeting Space
22.
The Union proposes a new provision which would require the Employer to
provide meeting space for the Union to hold a general membership meeting once every
three months on site and permit site visits once a month by a Union representative.
The Employer opposes the request, asserting that space is at a premium in the Home
and that the conference rooms are consistently booked so there is no room to
accommodate a general membership meeting every three months.
We see no valid reason for not allowing a Union representative on site in order
to better service the membership once a month, as there are no costs associated with
such access, nor does it appear that such access would cause undue disruption or
otherwise interfere with management's ability to operate the facility. With respect to
holding a membership meeting on site every three months, we do not have detailed
evidence of actual room use, and in the absence of such evidence we are not prepared to
conclude that every suitable room for a meeting with members would always be booked
for other use and would never be available on three months' notice for a membership
meeting.
As both requests better enable the Union to represent its membership and do not
involve additional costs for the Employer, they are awarded. There shall accordingly
be a new Article 7.08 that reads:
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The Employer will provide suitable meeting space for the Union to hold
General Membership meetings with members on site once every three months,
and will allow site visits by the Union once every month.
Article 9 - Seniority
23.
The Union requests a number of amendments to Article 9.01. It proposes that
the probationary period for new employees no longer be measured by hours worked but
by hours paid, and that the probationary period for part-time employees be reduced
from 720 to 360 hours.
It proposes three changes that it asserts represent current
practice: that seniority for full-time employees be calculated or reflected from date of
hire, that seniority for part-time employees be calculated on the basis of all hours paid,
and that seniority continues until the employment relationship is severed. It also
requests that Article 9.02(e) be amended so that an employee does not automatically
lose seniority and have his/her employment terminated for overstaying a vacation or
leave of absence unless an "explanation satisfactory to the employer" is provided,
asking instead that the explanation for overstaying or failing to return on time need only
be "reasonable". The Employer opposes all the requested changes.
One of the primary purposes of a probationary period is for an employer to have
an opportunity to assess the work performance of a new employee and to determine
whether the new employee should be made permanent. For this reason, probationary
periods are more commonly defined in terms of hours worked, not hours paid, and we
accordingly are not persuaded that this requested change should be made.
With respect to the suggested reduction in the length of probation for part-time
employees, the probationary period for full-time employees is akin to 18 weeks, since
13
it is for 90 days and 90 days generally translates into 18 weeks ofwork (90 days
divided by 5 days ofwork a week). In contrast, the current 720 hours of probation for
part-time employees translates into materially more than the equivalent of 18 weeks,
since part-time hours are defined in the Collective Agreement as normally less than
37.5 hours per week. A probationary period of720 hours for part-time employees is
also considerably above the sector norm. Given the standard amongst comparators,
transition on an incremental basis towards similar hours is appropriate for part-time
employees. Article 9.01 shall be amended to substitute 630 hours worked for the
current requirement of 720 hours, and a corresponding similar change shall be made to
Article 10.02,.effective two weeks from the date ofthis Award.
With respect to the other three changes requested by the Union in Article 9.01,
it does not appear to be disputed that they reflect current practice. Accordingly, and
subject to our right to amend the changes if we are incorrect that they represent the
status quo, the Article shall be amended to include statements that seniority for fulltime employees shall be reflected as of date of hire, that seniority for part-time
employees shall be based upon all hours paid, and that seniority shall continue until
the employment relationship has been severed.
With respect to the requirement in Article 9.02 to provide an explanation
satisfactory to the Employer for failure to return from vacation or a leave of absence,
while there do not appear to have been any disputes over how the Employer has been
exercising its rights in this respect, other collective agreements that contain similar
provisions typically require that any explanation for a failure to return be "reasonable".
14
The collective agreements at the other two Mon Sheong Homes in the GTA do not
appear to have a requirement to provide an explanation satisfactory to the Employer
upon overstaying vacation or failing to return from a leave of absence. Given the
provisions in comparator collective agreements, we are accordingly satisfied that the
requested amendment is appropriate. Article 9.02 shall be amended as requested by
the Union (cf. Union Brief, page 154), so that the employee must provide a
"reasonable explanation", rather than an "explanation satisfactory to the Employer".
Article 11- Job Security
24.
The current Article requires that the Employer provide the Union with at least 8
weeks' notice of any layoff and the employee with notice as required by the
Employment Standards Act. The Union asks that the Employer be required to provide
greater notice of layoff to the employee, through an amendment to the Article so that it
states that the Employment Standards Act is deemed to be amended to provide notice of
from 9 to 12 weeks, the applicable period of notice related to the employee's length of
service.
The comparators (other than the Central Agreement) do not justify such an
amendment and we are not persuaded of the appropriateness of purporting to amend the
minimum standards provided in the Employment Standards Act. The requested
amendment will not be made.
Article 15 -Printing the Collective Agreement
25.
Currently, the parties share equally the costs of printing the Collective
Agreement in English and in Chinese, after the Union provides a Chinese translation to
the Employer. The Union asks that the parties share equally the costs of both printing
15
and translation. There is no demonstrated need for the change, nor are similar
provisions found in comparator collective agreements. There shall be no such change.
Article 19 -Premium Payments
26.
The Union seeks the introduction of a new weekend premium of $1.20 an hour,
and a new provision for call-in pay. The Employer opposes both changes.
The comparators relied upon by the Union for a weekend premium are Central
Hospital agreements, where weekend premiums are in the range of $1.10 to $1.20 per
hour, but hospitals are not particularly relevant comparators for long-term care Homes.
Further, the Union not only asks for a new category of payment for hours worked, but
proposes it be quantified at $1.20 per hour, a rather unrealistic proposal when the Union
Brief indicates that the normative weekend premium in long-term care facilities is
$0.15 per hour.
As neither of the other two Mon Sheong GTA Homes have weekend
premiums, we decline to award a weekend premium here, given the costs of any such
premium and the costs of the awarded across-the-board wages increases.
With respect to the request for a call-in provision, both other Mon Sheong
Homes in the GTA have provisions that provide a minimum of three hours pay at
overtime rates for an employee called in to work outside his normal working hours, and
we award a similar provision here.
Article 20 - Parking
27.
Free parking was available for employees prior to the certification of the Union.
After the first collective agreement, the Employer introduced a parking fee. The Union
16
seeks a clause that requires the Employer to provide parking for employees and to
ensure that there are sufficient parking spaces or employees.
The Employer maintains
that there is not enough parking for guests, volunteers or staff, and that it had to
implement some system to attempt to regulate parking.
It asserts that all visitors,
volunteers and employees must pay for parking, and there are still not enough parking
spaces for all who want one.
At the hearing, it submitted that a new parking policy
would be issuing shortly, and subsequent to the hearing, the Union forwarded a new
parking policy, effective as of January 1, 2014, which states that a charge for staff
parking is discontinued. Whether or not this remains an issue in dispute, we decline to·
award any term with respect to parking. The Employer is faced with limited parking
spaces, insufficient to enable it to provide parking for all users of the Richmond Hill
Centre, and has tried a number of approaches to attempt to fairly balance the competing
needs for parking spaces. This is a matter best left to the Employer, or for the parties to
bargain.
Article 23 - Vacations
28.
Vacation pay for part-time employees is paid at the same level as full-time
employees for up to five weeks of entitlement, but not thereafter. The Union seeks to
continue this parity for part-time employees who would be entitled to six weeks of
vacation pay. Neither of the other GTA Mon Sheong Homes limit the vacation pay of
part-time employees to no more than entitlement at the five week level, nor do most
comparator Homes.
There would be no additional costs related to any such change
during the term of the Collective Agreement in issue.
Since full-time and part-time
17
employees are treated similarly up to five weeks of entitlement and since the
comparator Homes justify such a change, and since this is not a cost item under the new
Collective Agreement, Article 23.06 will be amended to indicate that for 6 weeks'
entitlement, part-time employees will receive 12% vacation pay.
Article 22 - Benefits
29.
The Union seeks an amendment to change the current Employer obligation to
pay 80% of the billed rates of premiums for employees participating in the group
benefit plans to an obligation to pay 100%.
The Employer asks that its obligation be
reduced to 50%.
At its two other Employer Homes in the GTA, Mon Sheong pays 100% ofthe
premium costs, as do employers in many other comparator Homes. While reference to
comparator Homes would therefore justify the requested change, given the additional
costs of increasing the obligation to pay from 80% to 100% of the costs of the
premiums, a more incremental change is warranted.
The Article is amended to require
the Employer to pay 90% of the employee premium costs, effective as of the first day
of the next month following the date of this Award. The "red-circled" provision will
remain unchanged.
Article 26 - Sick Leave
30.
No changes to the sick leave article are warranted, as the current provisions are
largely consistent with the other two Employer Homes in the GTA with respect to the
accumulation of earned sick days by both full-time and part-time employees.
18
Article 29- Part-time Employees
31.
The Union seeks a change so that part-time employees receive time and a half
for hours worked on a designated paid holiday. It does not appear as if such a change
is necessary, however, because the current Article 29.02 stipulates that part-time
employees who work on defined holidays will be paid at time and a half. We retain
jurisdiction over this item, however, in case we are incorrect in our understanding of
the meaning of the current provision and of current practice.
The Union also seeks to exclude Holiday and Sick Leave from the percentage
paid in lieu of benefits, which is currently 12%. Given the percentage level and similar
provisions in comparator collective agreements, there is no demonstrated need for this
change and it will not be made.
Article 13 - Contracting Out
32.
Currently, contracting out is prohibited where an employee will lose his/her job
or suffer a reduction in his/her normal hours of work as a result. The Employer asks
that all restrictions on contracting out be deleted. This is a relatively recently
organized bargaining unit and therefore a relatively recent bargaining relationship, and
since this is the renewal of the first collective agreement, the current provision has only
existed for one collective agreement. Other SEIU comparator agreements provide
contracting out protection.
In this context, such a change awarded at arbitration would
constitute a "breakthrough" item, a change it is unlikely the parties would have
negotiated themselves at this time. The request is accordingly denied.
19
33.
We remain seized for any matters arising from the referral to arbitration and this
Award, including any matters inadvertently missed.
Dated this 18th day of February, 2014
Chair: Robert J. Herman
I dissent in part. "H. Caley"
Union Nominee: Harold Caley
I dissent in part. "A. Sperling"
Employer Nominee: Alan Sperling