Arbitration panel agrees that hospital “clinical externs” are in union’s bargaining unit
In a precedent-setting decision, the GP team including Simran Prihar and Erin Sobat successfully argued that a hospital’s “clinical extern” program students should have been included in the union’s bargaining unit.
Background
In response to the healthcare human resources crisis, the provincial government created the “Enhanced Extern Program”, which provides funding for hospitals to hire current healthcare students to work as “clinical externs”. These employees perform most of the tasks of a typical Personal Support Worker and some limited nursing tasks. The program is not part of the students’ educational program and is not a replacement for their clinical rotations or placement hours. The government reimburses hospitals for extern wages at a rate of $20.60 per hour but does not prevent hospitals from paying higher wage rates in accordance with applicable compensation structures and collective agreements.
In late 2022, Cornwall Community Hospital posted and hired for clinical extern positions as temporary, non-union positions at $20.60 per hour, which was less than the lowest-paying classification in the union’s collective agreement. The union grieved the creation of this non-union classification.
The Arguments
The primary issue for the arbitration panel was whether the clinical externs were properly excluded from the union’s bargaining unit under an exception for “students employed in co-op, training, internship or placement programs”. The employer’s position was that externs were students employed in a training or internship program that was intended to better prepare them for professional practice. The union argued that this bargaining unit exclusion should be interpreted narrowly to refer to programs delivered in partnership with third-party institutions (such as colleges or universities) in order to meet academic or licensing requirements. Even if the hospital could in theory provide a training program “in-house”, it had not done so in this case, as the purpose of hiring externs was to alleviate staffing pressures and any learning opportunities were ad hoc and incidental.
The Decision
A majority of the panel chaired by Arbitrator Matthew Wilson agreed with the Union that the externs were members of the bargaining unit. He reasoned that since the externs were clearly performing bargaining unit work, the employer had the onus to show that they fell within one of the exclusions to the union’s recognition clause in the collective agreement: a “co-op, training, internship or placement programs internship.” The majority accepted the Union’s argument that in order to for a program to qualify as an “internship,” a partnership with a third-party institution, such as a college or a licensing authority, was required, and that no such partnership had been entered into in this case. While a “training program” did not require a third-party partnership, it did need to have features such as learning plans, opportunities for critical feedback, regular evaluation, self-reflection, graduation of skills and knowledge, and some relationship with the student’s course of studies (nor was this required by the provincial government to receive program funding). None of those features were present in this case.
Ultimately, the Arbitrator found that the purpose of the clinical extern program was to address healthcare human resources, rather than provide a training program:
94. The evidence establishes that the Ministry’s primary objective of the Extern program is to relieve staffing pressures by “supplement[ing] existing health human resources.” The Hospital has met this objective by allowing students enrolled in a broad range of healthcare programs to act as an “extra set of hands” on an extracurricular basis. Externs perform bargaining unit work, such as changing bedding, bathing patients, lifting and transferring patients, feeding patients, setting up meal trays, and stocking supplies. This is consistent with the language used in the early correspondence by management, the job postings, the hiring letters and the orientation materials. Notably, the Hospital did not refer to a training program, nor described the Externs as participating in a training program, until after the Union had filed a grievance challenging their exclusion from the bargaining unit. As there is no training program within the Hospital, and these Externs are not part of a training program, we find that they are not excluded by the Recognition Clause.
The panel allowed the grievance and declared that the hospital’s Clinical Extern classification properly fell within the union’s bargaining unit. The issue of remedy was remitted to the parties.
This case clarifies and appropriately narrows the scope of the “students” exemption common in many collective agreement recognition clauses. The Union’s victory is a successful rebuke to a hospital’s attempt to use the healthcare staffing crisis as an excuse to have bargaining unit work performed on a non-unionized basis.
You can read the decision here.