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Arbitrator rules on nurses’ entitlement to premium pay

In the latest installment in a series of decisions relating to premium pay entitlements of registered nurses, Arbitrator Stewart released her decision in Children’s Hospital of Eastern Ontario and Ontario Nurses Association (January 2011).  In dismissing the union’s grievances, the arbitrator held that part-time nurses that indicate availability for additional shifts are making a “request” for such work.  Pursuant to the provisions of the collective agreement, such a request for work precludes the nurses’ entitlement to premium pay. Vicky Satta of Emond Harnden successfully represented the hospital in this arbitration.

The issue before the arbitrator was the interpretation of collective agreement provisions relating to premium pay entitlement where part-time nurses work shifts in addition to scheduled shifts.  Additional shifts may become available due to unanticipated sick leaves or last minute requests by staff.  Nurses at the hospital are scheduled on a six-week rotation and are required to indicate the days during the rotation that they are not available for additional shifts.  The default scheduling position is that a nurse is available for additional shifts unless he or she indicates otherwise.  There is no limit to the number of days that a nurse may be unavailable for, as long as the regularly scheduled shifts are worked.  When additional shifts become available, the hospital offers them in order of seniority based on the availability indicated by the nurses.  A nurse that is offered the opportunity to work an additional shift may accept or decline the offer.   

THE COLLECTIVE AGREEMENT

The collective agreement requires the hospital to give nurses at least two weekends off in every four weekends.  Where a nurse is required to work a third and subsequent weekend, the collective agreement states:

“A Registered Nurse shall receive premium pay…for all hours worked on a third (3rd) and subsequent consecutive weekend except where...the Registered Nurse has requested weekend work…” [Emphasis Added]

In circumstances where additional shifts become available, a nurse that accepts an additional shift may end up working three consecutive weekends.  The union’s position was that in such circumstances the nurse is entitled to premium pay for the third weekend worked.  The employer disagreed claiming that in the circumstances the nurse is requesting the additional shift and is therefore not entitled to the pay premium under the collective agreement.  The issue for the arbitrator was whether an indication of availability by a nurse constituted a request for such work, such that there would be no entitlement to premium pay.

THE ARBITRATOR’S DECISION

The arbitrator set the ground work for the decision by citing the general principle that a nurse “cannot by the nurse’s own actions impose upon the hospital the obligation to pay him or her a premium.” (Community Memorial Hospital, Port Perry and ONA (1985)).   This principle was reflected in the arbitrator’s previous decision in Sunnybrook Health Sciences Centre and Ontario Nurses’ Association, [2007] where she stated:

“While [the hospital’s] obligation extends to the distribution of remaining shifts to regular part-time and casual nurses on the basis of seniority, there is no obligation on the part of the regular part-time or casual nurses to work any of those shifts, weekday or weekend shifts, on any given schedule…[I]t is up to the nurse in this instance to determine if she wishes to work on a weekend and to give effect [to] that determination by signing up for the shift, in my view, effectively requesting the weekend work."

The union attempted to distinguish the Sunnybrook decision on the basis that in circumstances where a nurse is called on short notice to replace another employee, it is difficult to conceptualize the events as a request from anyone other than the hospital.  The arbitrator however disagreed.  She cited the decision in Royal Victoria Hospital of Barrie and ONA [1992] which involved a grievance over similar issues.  In Royal Victoria it was recognized that there were plausible arguments from both sides as to whether the nurse or the hospital made the request for the nurse to work the additional shift.  Nevertheless, what was persuasive in Royal Victoria was that ultimately it was the nurses who decided to work, or not to work, the additional hours. 

In dismissing the grievances the arbitrator also relied on the decision in Guelph General Hospital and Ontario Nurses’ Association [2010].  That case involved the entitlement to premium pay on the basis of time off between shifts.  The grievor had been scheduled with the requisite amount of time off between shifts.  She then agreed to work additional shifts which resulted in her having less time off between her shifts.  She then claimed premium pay.  Her grievance was dismissed with the arbitrator holding that in the circumstances, where the nurse agrees to work the additional shifts offered by the hospital, the hospital and the nurse mutually consent to the nurse working with less time off between shifts. 

Based on the above principles, Arbitrator Stewart concluded that in the circumstances, the nurses were requesting the additional shifts for which they were seeking premium pay.  Pursuant to the collective agreement, the arbitrator held that the entitlement to premium pay was negated.  The grievances were dismissed.

In our view

The arbitrator’s interpretation of the collective agreement was reasonable in light of the fact that ultimately it is the nurses that choose whether to work additional shifts offered by the hospitals.  Although this is a positive interpretation of the collective agreement, it should be noted that there are a number of arbitral decisions relating to this topic that have different results.  Some arbitrators have taken the view that a “request” to work an additional shift involves more than an indication of availability by a nurse.  One arbitrator held that it would be an “odd interpretation” of the collective agreement if a nurse’s indication of availability for an additional weekend shift disqualified the nurse for premium pay.  In light of these conflicting decisions, the issues relating to nurses’ premium pay entitlements are not fully resolved.  We will keep Focus readers up to date with any developments in this area.

For further information, please contact Vicky Satta at (613) 940-2753.