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CUPE, Local 3874 v. McCall Centre for Continuing Care

February 15, 2018

Board of interest arbitration arbitration departs from 20 years of nursing home comparability; narrows the gap with hospital rates

The board of arbitration was required to grapple with what are perhaps the two most important considerations in interest arbitration: bargaining history and comparability.

Background

When negotiations did not result in a collective agreement, CUPE Local 3874 and the McCall Centre for Continuing Care, a long-term care facility situated on the Hospital campus of Trillium Health Partners, proceeded to interest arbitration.  A board of interest arbitration was convened under the Hospital Disputes Arbitration Act, and was chaired by William Kaplan.

For twenty years, the wage comparator for McCall Centre employees had been nursing homes rates, and not the more highly paid rates of hospital employees. The Union sought to change this, arguing that McCall Centre employees performed the same work as the hospital employees working at Trillium Health Partners at the Queensway Health Centre site and, in particular, the CUPE members employed at the Moir Centre. The employer argued for the status quo.

The board of arbitration’s decision

The chair of the board of arbitration described the challenge of this case as follows:

This is an unusually difficult case, placing in stark relief two of the most important considerations in interest arbitration: bargaining history and comparability. The bargaining history directs one result, comparability another.

A majority of the board of arbitration held that the Moir Centre CUPE employees were the most appropriate comparator for McCall Centre employees:

Moir Centre employees receive hospital rates, benefits and other terms and conditions of employment. McCall Centre employees are compensated as if they were employed in long term care. Not only does the evidence establish that employees at the McCall Centre provide similar complex continuing care services as those in the Moir Centre but the same level of care provided to complex continuing care patients in other hospitals even taking into account inevitable differences in acuity and staffing mix.

Other factors suggested that hospitals were a more appropriate comparator as well, including the fact that the McCall Centre is subject to the Public Hospitals Act. Most importantly, the majority found that, even though it was managed by Extendicare, “the McCall Centre is part and parcel, physically connected and otherwise, of the hospital”:

Following a careful and thorough review of all of the evidence, employees at the McCall Centre are best compared to employees working in the hospital: it is indisputably a wing of the hospital with employees performing comparable work to that in the hospital – complex continuing care – and in the hospital sector more generally.

Consequently, the majority determined that “Central hospital terms and conditions should apply: that means the CUPE Central Hospital Agreement.”

Despite these findings, the majority was not prepared to completely ignore the parties’ bargaining history. The majority held that the disparity in wage rates could not be eliminated immediately. At the same time, while “bargaining patterns must be respected, … they are not chiseled in granite.”  In the result, the award substantially reduced the wage disparity, and the majority noted that it anticipated that “the movement to hospital parity would occur over the course of future rounds.”

Read the entire decision here.

Lawyers

Mark Wright

Practice Areas

Labour Law