IN THE MATTER OF AN ARBITRATION PURSUANT TO THE HOSPITAL LABOUR DISPUTES ARBITRATION ACT BETWEEN: The Participating Hospitals AND CUPE, Local Unions of OCHU/CUPE (Coordinated Issues: RPN Wage Adjustment & Mentorship ) Before: William Kaplan, Chair Brett Christen, Hospitals Nominee Joe Herbert, CUPE Nominee Appearances For the Participating Hospitals: Carolyn Kay Hicks Morley Barristers & Solicitors For CUPE: Jonah Gindin Researcher OCHU/CUPE The matters in dispute proceeded to a hearing held in Toronto on July 9, 2015. The Board met in Executive Session in Toronto on July 16, 2015.
Introduction This Board of Arbitration was constituted under the Hospital Labour Disputes Arbitration Act to hear various local issues between the members of the participating hospitals (hereafter the participating hospitals and OCHU/CUPE (hereafter the union ). The participating hospitals and the union are voluntary participants in central bargaining. They are bound by the Memorandum of Conditions for Joint Bargaining dated June 17, 2013 and the Memorandum of Settlement between Participating Hospitals and CUPE dated September 29, 2013. These two memoranda establish a collective bargaining framework in which, simply put, the parties have agreed that some issues are central and some issues are local. The central issues were resolved when the parties entered into a collective agreement expiring on September 28, 2017. Local issues negotiations between the participating hospitals and applicable union locals occurred between September 2, and December 16, 2014. This Board was consensually constituted to deal with the outstanding local issues. By agreement of the parties, and for reasons of convenience and efficiency, two local issues were coordinated and referred to a hearing: RPN wage adjustment and Mentorship. Those two coordinated issues, which apply to most, but not all of the participating hospitals, proceeded to a hearing held in Toronto on July 9, 2015. The Board met in Executive Session in Toronto on July 16, 2015. In considering these issues, the Board paid careful attention to the detailed briefs, the submissions at the hearing, and the applicable statutory criteria, as well as the guiding and important principles of replication and demonstrated need. It should also be noted that the Board has, at the request of the parties, met, reviewed and decided these issues before turning its attention to the other local matters in dispute. RPN Wage Adjustment In brief, the union seeks a wage adjustment for the RPNs bringing their rate to 75% of the eight-year central RN rate. The union pointed to the extensive CNO evidence of an increasing RN-RPN overlap in scope of practice and increased RPN autonomy among other factors to justify the increase. When this data was examined, the union argued that there was a strong case in favour of adjusting the RPN wage rate as RPNs were now performing virtually all of the nursing functions and doing so autonomously. Comparator data established that increased RPN autonomy was appropriately reflected in higher RPN rates. The employer was opposed noting that with the exception of some outliers at the top (the result of pay equity) and some (on this issue) non-participating hospitals at the bottom, the RPN rate is basically uniform. The participating hospitals observe as well 2
that this is a local issue, not a central one and the Board, therefore, has no authority or jurisdiction with respect to it. The participating hospitals also take the position that there is no evidence of demonstrated need, and no difficulties whatsoever in recruitment and retention. The OHA submitted data indicating that the cost of the union s adjustment would amount to 2.31% of total compensation making it, the participating hospitals assert, beyond unaffordable in the current economic climate. The Board has carefully considered this issue. In our view, given the commonality in function across this classification, large gaps in rates for RPNs were completely unjustified. For all intents and purposes, however, those gaps the enormous spread no longer exists. Currently, 56 of the participating hospitals where this issue arises pay $28.55. Nineteen pay between $28.61 and 29.90. One hospital, Mattawa General, pays $30.18 and another, North Bay General, pays $32.72 (with these two high and outlier rates, the participating hospitals submit, resulting from pay equity not free collective bargaining). It would be completely inconsistent with, indeed contrary to, the arbitral intervention to date, clearly directed at removing the unjustified gaps, to bring all participating hospitals up to the top rate enjoyed by employees at a single hospital even if doing so was proposed in the context of establishing a percentage wage relationship between RPNs and RNs because of commonality in scope and autonomy in practice. The union s request is denied. Mentorship The union seeks a mentorship provision based on existing central ONA language. The participating hospitals are opposed. The union asserts that the provision is normative and based on demonstrated need at local hospitals. It notes, further, that the obligations only come into play when the participating hospital initiates a mentorship program. The union further notes that the OHA and the SEIU agreed in that group of participating hospitals to comparable language in their last central negotiations that led to a voluntary agreement. CUPE has, moreover, been successful in negotiating this provision with two participating hospitals in the current local issues bargaining and it exists at other CUPE-represented hospitals as well. In its brief, the participating hospitals observe that one of the Hospital s fundamental rights is to identify those individuals who they believe would benefit from having a mentor and to pair that RPN with an individual ideally suited to provide the requisite guidance (at p. 23). None of the difficulties identified by the participating hospitals are persuasive. And while it is true enough that it is the responsibility of all professionals to mentor, it is equally true that it is now common in this sector for this work to attract terms and conditions and a premium if a hospital directs an RN or RPN to perform it. In 3
our view, if a participating hospital chooses to direct an employee in this way, the terms and conditions of that direction should be according to normative collective agreement criteria, and those criteria are now pervasive, both in the ONA and the SEIU central collective agreements. Awarding this proposal is completely consistent with, even mandated by, replication. Accordingly, we award the union proposal effective ninety days following issue of this award. Conclusion At the request of the parties, we remain seized with the implementation of our award. DATED at Toronto this 23 rd day of July 2015. William Kaplan William Kaplan, Chair I dissent in part. Partial dissent attached. Brett Christen, Hospitals Nominee I dissent in part. Partial dissent attached. Joe Herbert, OCHU/CUPE Nominee 4
Hospitals Nominee s Addendum (RPN Wage Adjustment) & Dissent (Mentorship) Addendum (RPN Wage Adjustment) I agree with the Chair s decision on the issue identified in the Award as the RPN Wage Adjustment. Although I agree with the Chair s denial of the Unions request for this item, I have prepared this Addendum to comment upon the appropriateness of the Unions proposal and the Board s jurisdiction with respect to the proposed item. By way of background, it is useful to note that the local unions tabled a common proposal at each local negotiation seeking an RPN wage increase. The Unions proposal, which is entitled RPN Wage Adjustment, was a request to adjust the RPN maximum rate to $32.14 prior to the application of the general (i.e. centrally negotiated) wage increase and to adjust all other steps of the RPN Wage grid so as to maintain the previous percentage relationship between the steps on the grid. Pursuant to the Memorandum of Settlement between Participating Hospitals and CUPE dated September 29, 2013, the parties agreed to wage increases of 0.7% in each of the four years of the Collective Agreement expiring September 28, 2017 as well as four annual lump sum payments of 0.7%. The Unions proposal seeks an additional wage increase for the RPN classification. 5
The Unions advance many arguments in support of the proposal including arguments relating to the RPN s scope of practice, increased autonomy of RPNs over the years, and the overlap in certain RPN and RN competencies. In respect of these arguments, the Unions rely upon past and present relationships between RPN and RN wage rates in Ontario (described as the tiepoint argument by the parties), and in other provinces, and also reference the duties and educational requirements of LPNs in the United States. The Chair denied the Unions request for an additional RPN wage increase finding that such an increase would be inconsistent with and contrary to the awards of prior local arbitration boards which, in some cases, had awarded an RPN adjustment to increase the uniformity of the RPN wage grid at participating hospitals (it is not necessary for the purposes of this addendum to comment upon these awards). The Chair also states that such an increase is unwarranted even if proposed in the context of establishing a percentage wage relationship between RPNs and RNs. While this statement is correct, the Board s Award should also have clearly indicated that it would be completely inappropriate and beyond the jurisdiction of a local issues arbitration Board to grant the additional wage increase requested by the Unions for the RPN classification. The Unions arguments in support of this local issue are based entirely upon submissions relating to certain alleged characteristics or circumstances of the RPN classification generally, 6
including the tie-point argument, as might be made in respect of a central wage issue. The fact that the submissions are made in respect of one particular classification rather than all classifications under the Collective Agreement or in a coordinated manner by the local unions does not change the fact that this is a local issues board with jurisdiction only to determine local issues at the participating hospitals. On this issue, there were no arguments or circumstances advanced by any local union based upon the particular circumstances of the local parties or of RPNs at a particular participating hospital. Quite simply, there is no local issue to be addressed. As such, the requested wage increase is one that is beyond the jurisdiction of a local issues board to determine. Dissent (Mentorship) I have reviewed the Board s Award on the Mentorship issue and respectfully dissent from the Board s Award on this issue. The Mentorship language proposed by the local unions provides for a process for establishing an RPN mentorship program at a hospital (the Mentorship process ) and mandates a sixty cents (60 ) per hour premium for the mentor RPN (the Mentorship premium ). The award of the above Mentorship proposal by the Board is said to be based upon the principle of replication. However, only a handful of hospitals have voluntarily agreed with their 7
CUPE locals to include the proposed mentorship language in their Collective Agreement. As such, I disagree that the principle of replication requires the award of this item. Although it is true that the SEIU and participating hospitals agreed to the mentorship language at their central negotiations, there were undoubtedly trade-offs made by that Union to obtain this language that are not present here. In any event, replication is only one of the principles that is to be considered by an interest arbitration board. Of equal, or greater significance, is the principle of demonstrated need. There was no concrete evidence before the Board of the need for the Mentoring process at any local participating hospital nor of the need for the Mentorship premium. It is my view that all of the local unions failed to meet the onus of establishing a demonstrated need for their proposal. As such, the Mentorship proposal should have been denied by the Board. With respect to the Mentorship premium, it should be remembered that RPNs receive a wage rate which compensates them for performing the duties and requirements of their classification, including the meeting of their professional obligations. One of an RPN s professional obligations is to mentor colleagues. While all RPNs may not regularly perform this duty, this does not mean that when mentoring a colleague, an RPN is somehow performing an extra duty that should attract additional compensation. Like other duties and responsibilities within the scope of the RPN classification that an RPN may be required to perform, the 8
performance of a professional obligation by an RPN should not attract an addition premium and one should not be mandated by this Board. With respect to the Mentorship process, how a hospital establishes and formalizes a mentorship program for RPNs should be left for the hospital to determine in accordance with its particular needs and requirements. This is particularly the case in the absence of any demonstrated need for a formal Mentorship process. For these reasons, I would have denied the Union s proposal on this item. 9
DISSENT OF UNION NOMINEE The Chair s decision in this case is simply wrong. The union based its case for a wage adjustment for RPN s upon factors that included: 1. The expanded areas of RPN competencies, and; 2. The extensive overlap between RN and RPN scope of practice and competencies which renders disproportionate the current compensation disparity, and; 3. The autonomy of RPN s in providing nursing care within the same profession as RN s, and; 4. The anomalous salary relationship of RPN s to RN s in Ontario, when compared to other Canadian jurisdictions where RPN s provide nursing care autonomously. Looking at the latter factor alone, it is clear that the current disparity between RPN wages and RN salaries in Ontario hospitals is an anomalous one. In Canada, there are five provinces, including Ontario, where RPN s are licensed to provide autonomous nursing care, and five where they are not. In the other four provinces where RPN s provide autonomous nursing care to hospital patients, their wages represent between 72% and 79% of RN salaries measured at the job rate. In those provinces where RPN s do not provide autonomous nursing care to hospital patients, and continue to work under the supervision of RN s, the comparable salary ratio ranges between 65% and 67%. The provinces where RPN s practice nursing autonomously, and the ratio of the maximum RPN wage rate to the maximum salary rate of RN s, are set out below. 10
Province RPN/PN Salary Ratio Manitoba 79% Saskatchewan 76% Quebec 75% Alberta 72% Ontario 67% It is worth noting that the higher ratio of RPN wages to RN salaries in the other above provinces is not a function of lower RN salaries. Instead, in three of the other four above provinces where RPN s practice nursing autonomously, the RPN hourly wage rate is higher than it is in Ontario. The provinces where RPN s do not practice nursing autonomously and thus remain under the supervision of RN s, and the ratio of the RPN wage rate to RN salaries (measured each at the maximum rate) in those provinces, are set out below. Province RPN/PN Salary Ratio P.E.I. 67% Newfoundland 66% 11
British Columbia 66% Nova Scotia 65% New Brunswick 65% It is apparent that RPN s in Ontario, who earn 67% of the RN rate, belong to the first category, where RPN s engage in autonomous nursing practice, but they are paid as though they belong to the second. They are paid in relation to RN s as though they fall into the group where RPN s are not permitted to practice nursing autonomously and remain under the supervision of RN s. Ontario RPN s are the only RPN s in Canada who are both covered by the same regulatory college, and covered by the same nursing legislation, as RN s. However notwithstanding these factors, and notwithstanding that they now have the same scope of practice as RN s and that the nursing competencies of the two classifications overlap more than at any previous time, and notwithstanding that these RPN s practice autonomously rather than under the direction of RN s, they are paid in relation to RN s at the same ratio as RPN s in those jurisdictions which do not allow for autonomous RPN practice. I am not suggesting, and nor did the union, that there is no significant difference between RN s and RPN s in their nursing education and in their competencies. That is not the issue at all. Instead, the issue raised is the relationship within the practice of nursing of RPN wages to RN salaries. Nursing in Ontario is a single profession with two classifications. The relationship of one classification to the other within the same profession ought to make some sense. It makes no sense at all to have one of the largest percentage gaps in Canada, in the province where one would expect by any objective measure to see the opposite. 12
By failing to do anything at all to address this inappropriate salary relationship within the nursing profession, the Chair s award has failed to do what ought to have been done, namely award an adjustment which would cause RPN wages in these hospitals to bear a more reasonable relationship to those of RN s. I would have awarded such an adjustment. Dated this 23 rd day of July. Joe Herbert Nominee of the Union 13