Written by Fernando Reis, Labour Relations Consultant
In Saskatchewan Federation of Labour v Saskatchewan,the Supreme Court of Canada (SCC) recognized strike action as constitutionally protected under s. 2(d) of the Canadian Charter of Rights and Freedoms. However, many unionized workers do not have a right to strike.[1] In Saskatchewan, the SCC ruled that where the right to strike is suspended, workers must have access to a “meaningful alternative”[2]to the right to strike, typically some form of binding arbitration to resolve outstanding issues at the bargaining table.
Covid-19 has exposed the need for substantial changes to the operation of long-term care facilities in Canada. Absent legislative reforms, these changes will need to be negotiated in unionized workplaces and where agreement cannot be reached and in the absence of a right to strike, it will fall to interest arbitrators to decide whether changes will be introduced that will better protect workers and those being cared for. However, the conservative nature of interest arbitration leaves it far from clear that new protective measures will be introduced. This is a concern.
Interest Arbitration
In Ontario, for example, many healthcare workers are covered by the Hospital Labour Disputes Arbitration Act. This statute sets out both the process of interest arbitration and the applicable criteria[3] a board of arbitration must consider when fashioning an award.
The current crisis has revealed many failures in the LTC sector. In Bobcaygeon Ontario, as of April 6, 2020, 26 residents had perished as a result of Covid-19. Healthcare workers are dealing with an unprecedented surge in healthcare needs and have been exposed to a working environment replete with dangers without sufficient protections. It is reasonable to assume that, once the current crisis has abated, it cannot be “business as usual” for labour relations in the LTC sector. While boards of arbitration will continue to consider the relevant criteria, the principles of normative outcomes and demonstrated need will deserve enhanced attention.
Normative Outcomes
While “Normative” is not explicitly listed as a criterion under HLDAA, the concept has developed through the interest arbitral jurisprudence.[4] Essentially, a board of arbitration will typically award terms and conditions of employment that are well established within applicable comparators. Having said this, what may have been typical in the pre-pandemic world may no longer be typical in the post-Covid-19 world.
Demonstrated Need
The principle of demonstrated need requires a consideration of whether a proposal from either the union or employer has merit based on evidence that something hasn’t been working within the collective agreement or with labour relations.[5] At present, the principle of demonstrated need takes on an added importance, especially as it relates to the health and safety of healthcare workers.[6]
Collective Bargaining in the Post-Covid19
Interest arbitration must depart from what has ostensibly been a conservative process and embrace a broader more purposive approach to establish the new normative based on clear and compelling demonstrated needs.[7] In addition, changes to how services in the long-term care sector are delivered must also suffer profound alterations.
Performance of the work of the bargaining unit is a fundamental issue at the bargaining table for unions. In United Steelworkers of America and Russelsteel Ltd., it was established that a union has the onus to negotiate restrictions to contracting out of bargaining unit work.[8] These restrictions typically range from an outright ban to restrictions that are only triggered when certain conditions are met. With respect to the long-term care sector, it is not unusual to have outside contractors fill service gaps. In one nursing home in Kenora, Ontario where I led collective bargaining for UFCW Local 175 in 2018, the home contracted workers from as far away as Winnipeg in order to meet service requirements because of insufficient bargaining unit workers. However, the LTC sector in the post-pandemic world must recognize that this coming and going of contracted personnel must be addressed to reduce the chances of exposure to infectious agents.
In addition, the personnel that work in an LTC facility must be regulated and their compensation appropriately addressed. Therefore, employers and unions in the LTC sector should consider the following:
- Eliminating or regulating contracted services
- Ensuring a dedicated component of workers
- Quarantine Pay and Danger Pay
- Valuing PT Workers
Eliminating or Regulating Contracted Services
Infections in LTC facilities are the result of the introduction of the virus by someone from the outside, a worker or visitor to the facility. The reliance by LTC operators on outside contracted services must be scrutinized. A complete ban on these services would ensure that people who do not regularly work at an LTC facility do not become transmitters of disease. If a complete ban is not feasible, then there should be some method of controlling workers from contracted services entering the facility. Perhaps there could be a group of contracted workers that are assigned to a particular facility and that have been screened before the assignment. These workers should also be prevented from working at more than one facility to further decrease the risk of transmission.
Dedicated Workers
Another proposal is to prevent workers from a particular bargaining unit from working at other LTC facilities.[9] Again, this would reduce the chance of transmission of disease.[10]
Quarantine Pay and Danger Pay
Should a similar situation arise to the one we now find ourselves in, there should be additional compensation for workers on the front line. If LTC workers are forced into isolation, they should receive compensation during the period of isolation. There must also be recognition of some form of danger pay. Prime Minster Trudeau said as much on April 6, 2020. These workers are putting their lives at risk.
Part-Time Workers
Finally, the interest arbitration system must recognize the value of part-time staff. Boards of arbitration have traditionally only considered full-time retention and recruitment issues even though the HLDAA does not limit the analysis to the full-time component of a bargaining unit. The HLDAAshould be applied in a manner that is broad and purposeful. Evidence of high turnover of part-time staff should suffice to award increases above normative. In addition, part-time workers must have enhanced benefits. These considerations would incentivize part-time workers not to leave an LTC facility and seek work at various facilities.
Workers and unions must demand an upheaval of both workplace regulation and labour relations in the LTC sector. The evidence for banning or severely restricting contracting out is clear and compelling and must become a normative outcome. Moreover, workers in the LTC sector need additional and different types of compensation. If employers refuse to entertain these demands, it will be left to boards of arbitration to impose terms in light of the ban on the right to strike in the LRC sector. However, if boards of arbitration do not ascribe appropriate weight to unequivocal demonstrated needs then the words “meaningful alternative” to the right to strike will ring hollow and society will be doomed to repeat past errors.
Fernando Reis, “Interest Arbitration in the Wake of Covid-19: Healthcare Workers in a Post-Pandemic World” Canadian Law of Work Forum (April 16 2020): https://lawofwork.ca/?p=12317
[1]For example, this is the case among police, paramedics and healthcare workers.
[2]Saskatchewan, supra note 2 at para 92.
[3]See section 9(1)(1.1) of the HLDAA.
[4]See, for example, Chartwell Oakville Retirement v Christian Labour Association of Canada, 2015 CanLII 32028 (ON LA).
[5]See, for example, Honeywell Limited v Unifor Local 636, 2016CanLII 17001 (ON LA).
[6]The issue of insufficient personal protective equipment (PPE) for healthcare workers has dominated headlines.
[7]In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, the SCC ruled that benefits conferring statutes should be interpreted in a broad and purposive manner to ensure the intention of the legislature is fulfilled.
[8]United Steelworkers of America and Russelsteel Ltd., (1966) 17 L.A.C. 253 (Russelsteel)
[9]On April 15, 2020, Premier Doug Ford announced that LTC workers would not be permitted to work at more than one facilityfor a period of 14 days in an effort to reduce Covid-19 disease transmission.
[10]Of course, there is the obvious downside of the financial impact on workers in the LTC sector if such a proposal were to be adopted.
