IN THE MATTER OF AN INTEREST ARBITRATION
BETWEEN:
The Participating Hospitals
and
The Ontario Nurses’ Association
Before:
William Kaplan, Chair
Carolyn Kay, Employer Nominee
Elizabeth McIntyre, Association Nominee
Appearances
For The Participating
Hospitals
For ONA:
Bob Bass
Bass Associates
Stephen Flaherty
Counsel, ONA
A hearing in this matter was held in Toronto on March 15 & 16, 2014. The Board
met in Executive Session on March 31, 2014
Introduction
This interest arbitration was convened to settle the terms and conditions of employment
for 139 participating hospitals (142 bargaining units) and the Ontario Nurses’
Association. Notice to bargain was served on January 2, 2014. The parties met in
negotiations in January, February and March 2104. Unfortunately, they were unable to
agree on the terms and conditions of a renewal agreement. Accordingly, the matters in
dispute proceeded before a consensually selected board of interest arbitration. Hearings
were held in Toronto on March 15 & 16, 2014. The Board met in Executive Session on
March 31, 2014.
The parties were able to agree upon a number of items in their negotiations including
term. We direct that these agreed upon items be incorporated into the collective
agreement settled by this award. That collective agreement, for the period April 1, 2014
until March 31, 2016, shall consist of the terms of the expired collective agreement, the
agreed upon items, and this award of the Board. Any proposal not addressed in this award
is dismissed.
In determining the disposition of the issues in dispute, the Board has been guided by the
statutory criteria, which have been carefully considered, as well as the past bargaining
history of these parties. It is noteworthy that in their last round these parties agreed to two
years of zeros with modest lump sums followed by an ATB of 2.75% in the third year.
The current economic climate has also, for obvious reasons, been taken carefully into
account.
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It is fair to say that the parties were quite far apart in their view as to the appropriate
resolution of the different issues in dispute. On the key issue of compensation, the
participating hospitals offered 0.4% in each of the two years, while the Association
sought an ATB of 2% a year, together with numerous other economic improvements. To
be sure, there is an established settlement pattern in this sector – the CUPE and SEIU
central settlements – albeit not for units of exclusively professional employees like this
one. In the case of both CUPE and the SEIU, and unlike the situation with ONA, there
have been no years of zero compensation increases (lumps only). The recent CUPE and
SEIU central settlements provide for compensation increases of 1.4% a year made up
equally of ATB and lump sums (and, to be sure, a longer term). It is noteworthy that in
these other central settlements, unlike this award, improvements were made to insured
benefits, premiums, vacations and allowances. This award, which only modestly
increases compensation, must be considered and placed in that context and in the context
of the bargaining history of the parties more generally about which considerable evidence
was led.
AWARD
Wages
Effective April 1, 2014: 1.4%
Effective April 1, 2015: 1.4%
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Conclusion
At the request of the parties, we remain seized with respect to the
implementation of this award.
DATED at Toronto this 30 day of April 2014.
th
“William Kaplan”
______________________________________
William Kaplan, Chair
I dissent. Dissent attached.
______________________________________
Carolyn Kay, Employer Nominee
I dissent. Dissent attached.
_______________________________________
Elizabeth McIntyre, Association Nominee
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Dissent of the Hospitals’ Nominee
It is with respect that I must dissent from the Award wherein 1.4% ATB has been given in each
of the two years of the collective agreement. Such an award, in my view, wrecks havoc on
future collective bargaining, both in this sector and elsewhere. In negotiations, the parties will
necessarily continue to debate the tension between the role of free collective bargaining and
interest arbitration.
I agree with the Chairman that the economic climate and the short two year term of the agreement
are valid reasons to deny the multitude of economic improvements sought by the Union in this
round of bargaining.
Those same factors, however, also dictate that only moderate wage increases ought to have been
awarded, as were proposed by the Hospitals. Their proposals were consistent with the bargaining
outcomes already seen in the hospital sector with both CUPE and SEIU. 1.4% ATBs for 2 years
is inconsistent with the replication principle and provides ONA with a wage increase that they
would certainly not have achieved in free collective bargaining.
Significant weight appears to have been placed by the Chairman on the fact that the ONA agreed,
in their last round of bargaining, to take two years of “zeros” and that they were somehow
disadvantaged relative to CUPE and SEIU because of that fact. I disagree.
While there was certainly two years in which there was no ATB increase for ONA, those were
two years in which their members all received a lump sum payment equivalent to 9% of total
compensation which ranged from 1% on the Start Rate to 1.6% on the 25 Year Rate. The third
year of the agreement then provided a 2.75% ATB increase which, when averaged over the term
of the collective agreement, provided a .9% increase in each year.
In the most recent rounds with CUPE and SEIU, the pattern established in the sector, which
should not have been rejected, provided for .7% ATBs in each of the 4 years of those agreements
with lump sums of .7%.
In concluding that the CUPE and SEIU outcomes provided 1.4% increases, it is clear that the
Chairman has included both the .7% ATB and the .7 % lump sums. And yet, for ONA, he does
not similarly recognize the lump sums as increases that ONA received in the last round of
bargaining. If lump sums are to be recognized as increases, then it cannot be said that ONA took
zeros.
Rather than putting ONA in relatively the same position as CUPE and SEIU, to compensate for
the two years of zeros, the Chairman has in reality put them in a better position in terms of their
base rate.
If we look at period since 2009, when CUPE negotiated the 2009-2013 agreement, there has been
no disadvantage to ONA in taking the two years of zero ATBs. In 2009 and 2010, ONA received
ATBs of 6%. CUPE and SEIU only 4%. CUPE and SEIU then caught up in the next agreement
receiving 2.70% ATBs over 2011, 2012 and 2013. Over that same period of time, ONA received
2.75% ATBs.
What the Chairman’s award has done, however, is to increase the base rates for ONA by 1.4% in
each of two years; something which CUPE and SEIU will not achieve until the 4th year.
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As the Hospitals’ argued, the fact that this is only a two year agreement ought to have warranted
an even lesser increase than achieved by CUPE and SEIU.
There was absolutely no evidence adduced by the Union to warrant such a significant wage
increase. As the Hospitals’ demonstrated, there is no longer a shortage of nurses – the reason for
significant wage increases for ONA in the past.
The fact that the other bargaining units are not exclusively professional in nature, is not relevant
in my view. It is the outcomes of that bargaining that the replication principles requires us to
look at. These are, after all, many of the same participating hospitals that have ONA bargaining
units. Why is there any reason to believe that the hospitals would, if left to their own devices in
bargaining, agree to higher ATBs for ONA than they have with CUPE or SEIU? They would
not have.
Given the wage increase awarded, I would have balanced that by awarding the Hospitals’
proposals where they sought the introduction of a new start rate for new hires, the discontinuance
of the education allowance for new hires and the amended language with respect to generic drug
benefits – all of which would have provided some cost savings to offset that the unwarranted
increase to the base rates.
I hope that by the end of this collective agreement, the poor economic situation and the increased
supply of nurses in Ontario will demonstrate the need to return to, and follow, the established
bargaining trends in the sector.
Carolyn Kay
April 27, 2014
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DISSENT OF THE UNION NOMINEE
Having reviewed the award of the Chair, I find that I must dissent. In my view, the
overall compensation package is inadequate. Given that in the last round this Union took
2 years of 0% increases and given the negotiated settlements for nursing groups across
the country, a normative increase of 2% would have been a more reasonable result. An
annual 1.4% increase on the base for each of 2 years as awarded by the Chair is
inadequate; it is unlikely to even keep nursing salaries in line with inflation. Additionally,
I believe, improvements should have been made in premiums and benefits as well as
addressing the internal compensation inequities that were identified by the Association.
In my view, the award of the Chair does not reflect what has previously been achievable
for the Union in free collective bargaining.
The evidence was that these parties, in bargaining, have looked to nursing rates across the
country. Other provincial health care employers are the labour market competitors for
this limited and important group of professionals. While historically, Ontario has led the
other provinces in rates paid to nurses this province has slipped in the rankings. Ontario's
start rate, even with the increases awarded by this Board, will remain behind that of
British Columbia, Alberta, Saskatchewan, Manitoba and Nova Scotia even though a
number of these rates are expired.
Further evidence before the Board established that, like in Ontario, nurses in all provinces
(except Newfoundland) have experienced 0% increases in one or more contract years
since 2010. Following the wage freeze however, wage increases (with the exception of
Quebec) were in excess of 2%;
• British Columbia's nurses received a 3% increase in 2013 after a freeze in
2012
• Alberta's nurses received a 2% increase in 2011 and a 4% increase in
2012 after a freeze in 2010
• Saskatchewan's nurses received a 2% increase in 2013 after a freeze in
2012
• In the recent settlement in Manitoba nurses received a 2% increase in
each of 2013, 2014, 2015 and 2016 as well as market increases of 1.1%
in 2014 and 1% in 2016; this followed a 3% increase in 2012 and a freeze
in 2010 and 2011
• New Brunswick's nurses received a 2.75% increase in 2013 and a 4.3%
increase in 2014 after a freeze in 2011 and 2012
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• Nova Scotia's nurses received a 2% increase in 2011, a 5% increase in
2012,a 6% increase in 2013 and a 3% increase in 2014 after a freeze in
2010
• Prince Edward Island's nurses received a 2.5% increase in 2001, 4.0% in
2012 and 2.0 in 2013 after a freeze in 2010
Accordingly, based on the evidence of their historical bargaining comparators the Union's
proposal of 2% increases was well within the range of reasonable outcomes.
In looking at Management groups within Ontario hospitals the Board was provided with
evidence that non-union staff at North York were recently advised that they would be
getting a 2% increase in each of 2014 and 2015. We were also given the sunshine list for
management employees at some hospitals which, while showing a range of salaries and
increases, confirmed that the increases requested by the Union here were well within the
range of reasonable and normative.
The Hospitals proposed increases of 0.4% on the base in each of the 2 years of the
collective agreement. It would seem that the Chair gave too much weight to the proposal
from the Employer which was preposterous in the circumstances. The Employers'
proposal gave no credit to this important group of professionals for the role they assumed
in agreeing to 2 years of 0% increases in response to the government's austerity program.
Not only did ONA agree to take 2 years of zero increases to the base rates, they
contributed to improvements in premiums and benefits with concessions to HOODIP and
termination pay. Having agreed to the 2 years of zero increases they should now be
entitled to normative increases.
Rather than normative increases, the Hospitals' proposal would give a mere 12 cent
increase on the existing start rate of $30.17. Not only would did the Employers' proposal
further erode the salaries of nurses when the cost of living is taken into account, they also
proposed a new step to be added to the bottom of the grid that would further reduce
salaries by 3%. The Employers' proposal, while perhaps not intended as an insult to this
important group of frontline professionals, was unrealistic and clearly not achievable in
free collective bargaining.
While I disagree with the total compensation increases awarded by the Chair, I do
applaud his decision not to award a decreased start rate which was unsubstantiated on the
evidence before the Board. I also applaud the Chair for putting the extremely modest
compensation increase he did award on the base rates rather than in lump sums. While
lump sums may be appropriate in extremely exceptional circumstances where there are
no increases on the base for part of a collective agreement, they obviously do nothing to
ensure that salaries keep pace with increases in the cost of living.
In their argument to the Board, the Employers relied heavily on the settlements which
have recently been reached between the Hospitals and the service groups with which they
negotiate. In my view, the Chair was correct in not following those settlements. The
undisputed evidence before the Board was that settlements with the hospital service
groups have never been the basis of discussions between these parties in negotiations.
8
Rather, for comparators these parties have looked primarily to the settlements and rates of
the professional nursing groups who bargain with comparable employers across the
country.
While the undisputed evidence was that the service units settlements were not the focus
of discussions in negotiations in previous rounds of bargaining between these parties, we
were provided with a significant amount of evidence regarding the comparative
bargaining history of the service groups and the nurses. The charts provided by the OHA
showed the following:
2001-2004 Agreements
ONA
SEIU
CUPE
Outcome: Negotiated Settlement
Outcome: Negotiated Settlement
Outcome: Negotiated Settlement
Date of settlement: December 12, 2001
Date of settlement: September 27, 2001
Date of settlement: October 18, 2001
Term: October 11, 2001 - October 10, 2004
April 1, 2001- March 31, 2004
Term: September 29, 2001 - September 28, 2004
Effective Date
ATB
Effective Date
ATB
Effective Date
ATB
April 1, 2001
3%
September 29, 2001
2.50%
October 11, 2001
2.50%
April 1, 2002
3%
September 29, 2002
3%
October 11, 2002
3%
April 1, 2003
3.2%
September 29, 2003
3%
October 11, 2003
Total
9.2%
Total
8.5%
Total
3%
8.5%
2004-2006 Agreements
ONA
CUPE
SEIU
Outcome: Arbitration (Keller)
Outcome: Negotiated Settlement
Outcome: Negotiated Settlement
Date of award: September 8, 2005
Date of settlement: February 27, 2005
Date of settlement: March 5, 2005
April 1, 2004- March 31, 2006
Term: September 29, 2004- September 28, 2006
Term: October 11, 2004- October 10, 2006
Effective Date
ATB
Effective Date
April 1, 2004
3%
September 29, 2004
1.50%
October 11, 2004
1.50%
April 1, 2005
3%
April 1, 2004
1.50%
April 1, 2004
1.50%
Total
6%
September 29, 2005
1.50%
October 11, 2005
1.50%
April 1, 2005
1.00%
April 1, 2005
Total
5.5%
Total
9
ATB
Effective Date
ATB
1.00%
5.5%
2006-2008 Agreements
ONA
SEIU
Outcome: Arbitration (Albertyn)
CUPE
Date of award: March 5, 2007
Outcome: Negotiated Settlement
Date of settlement: July 21, 2006
Outcome: Negotiated Settlement
Date of settlement: June 12, 2006
April 1, 2006- March 31, 2008
Term: October 11, 2006- October 10, 2009
Term: September 29, 2006- September 28, 2009
Effective Date
ATB
Effective Date
April 1, 2006
3.00%
October 11, 2006
April 1, 2007
3.00%
October 11, 2007
Total
6%
ATB
Total
Effective Date
2.75%
September 29, 2006
3.00%
September 29, 2007
5.75%
ATB
2.75%
3.00%
Total
5.75%
2008-2013 Agreements
ONA
SEIU
Outcome: Negotiated Settlement
CUPE
Outcome: Negotiated Settlement
Date of settlement: February 7, 2008
April 1, 2008- March 31, 2011
Date of settlement: July 21, 2006
Term: October 11, 2006- October 10, 2009*
Outcome: Negotiated Settlement
Date of settlement: June 12, 2006
Term: September 29, 2006- September 28, 2009*
Outcome: Arbitration (Devlin)
Outcome: Arbitration (Burkett)
Outcome: Negotiated Settlement
Date of award: June 2, 2011
Date of award: November 5, 2010
Date of settlement: August 28, 2009
April 1, 2011 - March 31, 2014
Term: October 11, 2009- October 10, 2011
Term: September 29, 2009- September 28, 2013
Outcome: Arbitration (Etherington)
Date of award: May 7, 2013
Term: October 11, 2011 - October 10, 2013
Effective Date
Effective Date
ATB
1-Apr-08
3.25%
ATB
Effective Date
11-Oct-08
2.60%
ATB
29-Sep-08
2.60%
1-Apr-09
3.00%
11-Oct-09
2.00%
29-Sep-09
2.00%
1-Apr-10
3.00%
11-Oct-10
2.00%
29-Sep-10
1-Apr-11
0.00%
11-Oct-11
2.00%
29-Sep-11
2.00%
1-Apr-12
000%
11-Oct-12
2.00%
29-Sep-12
2.00%
1-Apr-13
2.75%
11-Oct-13
Total starting from the ONA deal
12.00%
Total Starting from the CUPE deal
8.75%
7
.00%
0,70%
29-Sep-13
0.70%
Total from 2008
11.30%
Total from 2008
11.30%
Total from 2009
8.70%
Total from 2009
8.70%
In examining this history from 2001 to 2010, a number of things emerge:
•
in every round while ONA's settlements and/or awards came after the
settlement and/or award for the service groups ONA's award and/or
settlement exceeded the pattern set by the service workers
•
in addition to increases on the base, in many of the rounds there is
undisputed evidence that ONA got additional significant changes affecting
the general wages of its members; improvements not achieved by the
service groups. For example, in 2000 ONA negotiated an elimination on
the cap for credit for recent related experience; in 2002 they negotiated an
additional 1% at the top of the grid; in 2005 they were awarded an
additional 2% step at the top end of the grid for those with 25 years of
experience; in 2007 they were awarded additional increases beyond the
standard 3% at Step 1 (9.34%), 2 (6.47%), 3 (7.3%) and 8 (3.25%)
•
a comparison of increases to the base, even if one were to ignore the
additional improvements on the grid, demonstrates that ONA has
10
historically achieved greater increases than the service groups. Between
the years 2001 and 2010, on a straight mathematical calculation, ONA's
increases exceed those achieved by the service groups by .41% annually
on the minimum rates and .64% on the maximum rate increases. This
leads to the inescapable conclusion that, in mathematical terms, ONA has
achieved at least a .5% advantage annually over the service groups in
increases to base salary.
It was the Employers' argument that the zero increases taken by ONA in 2011 and 2012
should essentially obliterate that historical pattern. I endorse the Chair's rejection of that
argument. Not only did the service groups not agree to zero increases in the last round
they made no concessions on benefits as did ONA. It would be neither fair nor
appropriate to effectively punish ONA for having cooperated with government policies in
accepting zero increases for 2 years by imposing on them a further reduction in
compensation. In the words of Bill Walsh, a union consultant with extensive experience
in the development of interest arbitration principles, this would be the ultimate "double
whammy".
As many arbitrators have commented, the role of an interest arbitration board is to apply
the statutory criteria and other considerations in attempting to duplicate what the parties
themselves would have achieved in bargaining. Given the evidence of historical
bargaining between these parties in looking to settlements for nurses across the country it
is probable that they would have reached a settlement close to ONA's proposal with
respect to 2% increases on the base. Not only would this be more consistent with their
provincial counterparts it would not be out of line with management salary increases in
the hospital sector and settlements generally. Coincidentally, It would also not be
inconsistent with the historical average annual 0.5 differential with the service groups in
hospitals if added to the 1.4 increase agreed to for that group.
In addition to improvements on the grid, an examination of the bargaining history
between these parties shows a consistent pattern of improvements in premiums and
benefits. We were provided with details of all settlements and awards from 1980 forward
which substantiates that, in every round, ONA has negotiated or been awarded significant
increases in vacations, benefits and premiums. In the last round the Union made
concessions regarding retirement allowance and HOODIP which the Employers claim
covered the cost of improvements in premiums and benefits in the first 2 years. However,
in the 3rd year of that agreement there were a number of improvements in premiums,
benefits and vacations. This was in addition to the 2.75% general wage increase on the
grid. Accordingly, were this Board to do its job in replicating bargaining outcomes, it
would have awarded some improvements in the premiums and benefits in this round of
bargaining. While the Chair may have felt constrained in this regard given the 2-year
term of this agreement, it is to be expected that the Union will re-establish their historical
pattern of improvements in the next round of bargaining.
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Finally, the Union sought to remedy inconsistencies between hospitals in wages paid both
to nurse practitioners and to nurses with temporary certificates. The Board has declined to
intervene in this regard. It is hoped that the parties themselves can determine a process to
ensure equity of wages for these groups in a timely fashion so disparities do not increase.
April 29, 2014
"Elizabeth McIntyre
Elizabeth J. McIntyre, Union Nominee
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