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A 2011 analysis by the AMO committee found that between 2005 and 2010 the cost of emergency service wages and benefits across Ontario rose faster than the cost of living and inflation rate. Despite a flat economy, costs for police, fire and paramedics rose 5 to 9 per cent every year.

An AMO analysis paper notes that “arbitrators have stated that they place a greater priority on replicating agreements from other communities over local fiscal cicumstances. Ability to pay has become nothing more than ability to tax.’’

“Something has to be done,’’ Toronto deputy mayor Doug Holyday said of the current system. Arbitrators in the province are “constantly playing leapfrog over one another . . . they’re not taking into account the ability to pay . . . arbitration awards are not fair to municipalities.’’

What’s more, the arbitration process can take years.

But Mark McKinnon, president of the Ontario Professional Fire Fighters Association, says that while “timelines are a concern for everybody’

Arbitration could and should be streamlined, though, he says, reflecting that “There aren’t a lot of complex issues” that end up going to arbitration.

But if it’s to be reformed, Lynk suggests a blue-ribbon commission. “The province needs a labour-management consensus,’’ he says. The ideas can’t all come from one side.

He believes that many municipalities do not produce “evidence of their inability to pay.’’

“There’s no evidence arbitrators are using the criteria,’’ she says. “Arbitrators, you need to do your job better. You need better direction in terms of the things you consider. Know your math, do your math. Don’t just replicate.’’

Wilson is preparing “fine-tuned” version of it called the Public Sector Capacity to Pay Act, to be introduced April 11.

Essential-services workers are governed by various statutes, but all are prevented by law from going on strike.

There are no rules for how long bargaining can take. If they reach an impasse, they may agree to suspend bargaining and seek a conciliator, appointed by the relevant provincial ministry. Or, if one side feels negotiations have reached a stalemate, it can seek to refer the matter to a conciliator. If an agreement is not reached by conciliation, the parties can either jointly appoint an arbitrator, if they agree on a choice, or request that one be appointed.

The Facts: In 2012, the Health Employers' Association of British Columbia introduced an Influenza Control Program Policy requiring health care workers to get a flu shot or wear a mask while caring for patients during flu season, which the union grieved. The employer, representing six Health Authorities in B.C., implemented the policy in response to low vaccine coverage rates of health care workers and an inability to achieve target rates of vaccination through campaigns promoting voluntary vaccination commencing in 2000. Acting on the advice of Dr. Perry Kendall, B.C.'s Provincial Health Officer, and relying on evidence suggesting that health care worker vaccination and masking reduce transmission of influenza to patients, the employer moved towards a mandatory policy. Asserting that members had the right to make personal health care decisions, the B.C. Health Sciences Association filed a policy grievance, contending that the policy violated the collective agreement, the Human Rights Code of British Columbia, privacy legislation, and the Canadian Charter of Rights and Freedoms. Extensive expert medical evidence during the hearing indicated that immunization was beneficial for the health care workers themselves, but was divided as to whether immunization of health care workers reduced transmission to patients. The evidence was similarly divided as to the utility of masking.

Comment:

Having determined that the policy was reasonable under the KVP test, Diebolt turned to the Irving test applicable to policies that affect privacy interests, which he characterized as requiring an arbitrator to balance the employer's interest in the policy as a patient safety measure against the harm to the privacy interest of the health care workers with respect to their vaccination status. Determining that the medical privacy right at stake in the annual disclosure of one's immunization status did not rise to the level of the right considered in Irving, which involved "highly intrusive" seizures of bodily samples, Diebolt further held that the employer's interest in patient safety related to a "real and serious patient safety issue" and that "the policy [was] a helpful program to reduce patient risk." Diebolt also considered that the employer had chosen the least intrusive means to advance its interest in light of the unsuccessful voluntary programs and in providing the alternative of masking. To quote the arbitrator: "[W]eighing the employer's interest in the policy as a patient safety measure against the harm to the privacy interest of the health care workers and applying a proportionality test respecting intrusion, based on the considerations set out above I am unable to conclude that the policy is unreasonable."

Diebolt also upheld the masking component of the policy as reasonable, finding on the evidence that masking had a "patient safety purpose and effect" by inhibiting the transmission of the influenza virus, and an "accommodative purpose" for health care workers who conscientiously objected to immunization. Observing that mandatory programs have been accepted in New Brunswick and the United States, Diebolt also considered that regard should be paid to the precautionary principle in health care settings that "it can be prudent to do a thing even though there may be scientific uncertainty." Moreover, he held that the absence of a reference to accommodation did not make the policy unreasonable, noting that this duty was a free-standing legal obligation that was not required explicitly to be incorporated into the policy and that any such issue should be addressed in an individual grievance if made necessary by the policy's application. He also rejected the union's submission that the policy could potentially harm health care workers' mental and physical health, considering the evidence to fall short of "establishing a significant risk of harm, such that the policy should be considered unreasonable."

Turning first to the KVP test, specifically whether the policy was consistent with the collective agreement and was a reasonable exercise of the employer's management rights, Diebolt noted that the only possible inconsistency with the collective agreement would be with the non-discrimination clause, given his ruling regarding the scope of Article 6.01, and that he would address this issue in his reasons with respect to the Human Rights Code. Diebolt then turned to the reasonableness of the policy and found, after an extensive review of the conflicting medical evidence that: (1) the influenza virus is a serious, even fatal disease; (2) immunization reduces the probability of contracting the disease; and (3) immunization of health care workers reduces the transmission of influenza to patients. Accordingly, Diebolt reasoned that the facts militated "strongly in favour of a conclusion that an immunization program that increases the rate of health care immunization is a reasonable policy."

Diebolt instead regarded the policy as a unilaterally imposed set of rules, making it necessary to establish that they were a legitimate exercise of the employer's residual management rights under the collective agreement and met the test of reasonableness set out in Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., [1965] O.L.A.A. No. 2 (QL) (Robinson). In addition, given that the policy contained elements that touched on privacy rights, Diebolt held that the policy must also meet the test articulated in CEP, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII) (reviewed in Lancaster's Disability & Accommodation, August 9, 2013, eAlert No. 182), in which the Supreme Court of Canada held that an employer cannot unilaterally subject employees to a policy of random alcohol testing without evidence of a general problem with alcohol abuse in the workplace, based on an approach of balancing the employer's interest in the safety of its operations against employees' privacy.

In a 115-page decision, Arbitrator Robert Diebolt denied the grievance and upheld the policy as lawful and a reasonable exercise of the employer's management rights.

The Decision:

As noted by the arbitrator, no Canadian decision has addressed a seasonal immunization policy similar to the policy in this case. However, a number of decisions have addressed, and generally upheld, outbreak policies mandating vaccination or exclusion on unpaid leave. B.C. Health Sciences Association President Val Avery expressed his disappointment in the arbitrator's ruling, stating: "Our members believed they had a right to make personal health care decisions, but this policy says that's not the case." Avery said the Association is studying the ruling and could appeal. On the other hand, Dr. Perry Kendall, B.C.'s chief medical officer of health, applauded the decision, calling it a "win for patients and residents of long-term care facilities."

In 2012, Public Health Ontario changed its guidelines to call for mandatory flu shots because not enough health care workers were getting them voluntarily. Other municipal public health units – led by Toronto Public Health – also called for mandatory shots. Ontario's chief medical officer of health, Dr. Arlene King, stated in November 2013 that, while the government wants to see a dramatic increase in the number of health care workers who get a flu shot, it is stopping short of making vaccinations compulsory, but has instead implemented a three-year strategy to "strongly encourage health care workers to be immunized every year." She acknowledged, however, that the number of health care workers getting inoculated remains at 51 percent for those employed in hospitals and 75 percent for those in long-term care homes. For further discussion of the validity of employer rules, see section 14.1 in Mitchnick & Etherington's Leading Cases on Labour Arbitration Online.

In February 2012, Mr. Lister raised concerns with his employer and alleged the presence of asbestos on pipes in the nursing home. The Lodge brought in environmental consultants, but Mr. Lister questioned their qualifications and made statements challenging the accuracy of the expert advice they provided as to health and safety.

In March 2012, Mr. Lister attended a general staff meeting where he reportedly made inappropriate gestures and fell asleep. The employer then sent a warning letter to him, which was placed on his personnel file. A few months later, in the summer of 2012, Mr. Lister brought a tomahawk axe to work and, for this action, was suspended for 1.5 days as "progressive discipline." In

the Fall of 2012, Management called a meeting with Mr. Lister for which he declined union representation when offered. Mr. Lister was instructed by the Employer that he would not be permitted to return to work until he had a psychiatric evaluation. He was immediately suspended, indefinitely, without pay, and escorted from the property. Mr. Lister was ultimately assessed by a psychiatrist, who determined that he did not pose a danger to himself or others; however, he missed over twenty (20) days of work without pay before being cleared.

CUPE filed three (3) grievances, two of which were the subject of the judicial review, these were: (1) alleging that the employer violated the collective agreement by not having a union representative present at the suspension meeting; and (2) that the employer had violated the collective agreement by suspending the grievor pending a psychiatric evaluation, without valid reason and without pay. The (3) third grievance concerned the 1.5 day

suspension of Mr. Lister for bringing a tomahawk axe to work. On the third issue, the arbitrator concluded that the suspension was reasonable and the Lodge did not seek judicial review. The arbitrator held that the Lodge had violated the collective agreement by not ensuring a union representative had been in attendance at the meeting with Mr. Lister. He had been told that he did not need such representation, but he clearly did. The Lodge had also violated the collective agreement by suspending Mr. Lister without cause and for over 20 days, which was contrary to the collective agreement.

The Decision On judicial review, the New Brunswick Court of Queen's Bench upheld the arbitrator's refusal to accept the employer's argument that the suspension, due to mental health concerns was a "medical leave", and not a disciplinary action. The

employer argued it did not intend to punish Mr. Lister and fully expected a psychiatrist would find him unfit to return to work; however, since Mr. Lister had no sick days left, he was simply "suspended" without pay, pending the evaluation.

However, there was significant evidence that the suspension was, in fact, disciplinary. Letters had been issued by the employer previously warning Mr. Lister of further "disciplinary action", Mr. Lister was escorted from the premises and Union representation had been offered at the meeting. Further, the suspension resulted in the grievor suffering a financial penalty,

as he was unable to access sick benefits and received no pay. Ultimately, the Court of Queen's Bench concluded that the arbitrator was justified in finding that the employer had disciplined Mr. Lister by suspending him and prohibiting his return to work pending a clear psychiatric evaluation, and that this was a violation of the collective agreement.

What This Means For Employers With the exception of certain safety-sensitive industries where a bona fide occupational requirement can be established, employers cannot discipline, suspend or dismiss employees suffering from a mental illness or disability. Employers have a legal duty under human rights legislation and/or collective agreements to accommodate all disability, up to the point of undue hardship. Unions, where applicable, also have legal duties within the

accommodation process and can be of assistance in navigating "difficult" employee behaviour, including mental health issues where such employees may pose a risk not only to themselves, but the broader workplace. Occupational health and safety legislation also requires employers to provide a safe working environment for their

employees. Under certain conditions, with the proper evidence and context, employers may need to remove an employee with a confirmed mental illness to protect against harm to others or themselves. In such specific circumstances, an employer might be justified in preventing an employee from returning to the workplace until medical clearance is confirmed. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Ms Leah Ferguson

Cox & Palmer Suite 400 Phoenix Square 371 Queen Street Fredericton NB CANADA Tel: 902421 6262 Fax: 902421 3130 E-mail: kbehie@coxandpalmer.com URL: www.coxandpalmerlaw.com

The Tories had privately intended to support the 12-month deadline

the government has given itself room

However, according to Jain, it was SteriPro who initiated the proceedings to bring the contract to a close. "It was SteriPro that took Trillium to task," says Jain. "We filed a change inquiry notice, and according to our agreement, the next step would have been arbitration, and we would have won a very, very large compensation from Trillium if we had gone to arbitration." Rather than going through arbitration, SteriPro opted to begin negotiations to terminate the contract. "We got compensated a significant amount of money by Trillium to enter into this termination agreement. So, it's not that they terminated the contract. We terminated it."

"We are the first private facility accredited by Accreditation Canada, which looks at all your work. We've been accredited strictly for reprocessing, Which is a very stringent and highly controlled and monitored service that meets all the standards set by the CSA." With regards to the company's contract with Pembroke Regional Hospital, two main concerns were raised by CUPE representatives during their March media event: that prolonged turnaround time on instruments needing cleaning could lead to shortages at critical times, and that the 400-plus kilometre one-way trip to Pembroke from the SteriPro facility could result in compromises to the sterilization of the equipment. On the topic of instrument inventory, Jain points out that the issue was raised during the preliminary portion of contract talks with the hospital, and to mitigate that concern, SteriPro agreed to cover the cost of an augmentation to the hospital's existing inventory with brand new equipment so that they would always be sufficiently well-stocked to deal with routine and unforeseen situations.

For Jain, the notion that it was the hospital who terminated the SteriPro contract is factually incorrect, but the added idea that that decision would have been made because of lapses in quality runs counter to the high mark that he sets for his company, and which is attested by the level of accreditation they've received.

Jain explains that rather than being dissatisfied with SteriPro's service, the hospital instead had carried on along a trajectory of increasing demand for those services, but neglected to honour the contract elements that mandated further talks about increasing compensation along the same lines. "There were some issue in the contract that enabled us to increase our compensation with increased volume," says Jain. "When a hospital's surgical case volume goes up by 70 per cent, you would expect that our compensation would increase by 70 per cent, but it went up by zero per cent over the last four years, and that's because Trillium did not engage in the discussions that were dictated in the agreement to enable us to increase our compensation for the extra work and the extra labour force that we needed to employ the work that needed to be done."

When it comes to the notion that distance presents an insurmountable hurdle to assuring the sterilization of treated instruments, Jain points to his company's provision of service to a trauma centre in Newfoundland, and their various other contracts, as his main response. "If we can service a major trauma centre on the East Coast, we can service anyone from coast to coast. We consider ourselves the experts in sterile transport, because we have developed the methodologies and the techniques, and we've tested them out, to ensure that instruments can be transported safely by road or by air. We currently transport instruments to major hospitals throughout the GTA, and we transport them safely."

In addition, Jain says that SteriPro has a number of detailed tracking and data systems to ensure that every step in the process is wellsupervised and documented. "We have temperature and humidity-controlled and monitored trucks, which have GPS monitoring on them as well. If there was a particular case that had an infection, we can pull out all the records on that particular tray of instruments and provide the data to show when it was sterilized, by whom, and under what conditions that sterilized set was kept. So the chain of sterility from the time that it comes out of the sterilizer to the time when it goes on the shelf in the storage room in Pembroke is completely documented, and we are practically the only ones in Canada who can do that, and we maintain all that data in our database forever. If there was a case that was done 10 years ago where, say, an orthopaedic implant which became infected 10 years ago, we can provide the hospital all the records they need to prove that sterility was not the issue." Over the past few months, SteriPro officials have been working to get the necessary underpinnings of their service to PRH in place, and they are expecting to be fully operational for surgical equipment reprocessing by the end of April. rpaulsen@postmedia.com Twitter.com/PRyanPaulsen

Among his suggestions, Dorsey proposed allowing licenced practical nurses to vote on whether to join the nurses bargaining unit or the health-care bargaining unit. Another option would be allowing all nurses to vote on whether to be represented by the NSGEU or NSNU.

While the government has the right to wind up district health authorities and dismiss executives and managers in restructuring, it cannot reach across the table and assign new representational rights and responsibilities for independent trade unions or tell employees who will be their bargaining agent,” Dorsey writes.

“This isn't the slam dunk that the Liberal government wanted,” Danny Cavanagh, regional vice-president of the Canadian Union of Public Employees (CUPE) tells the Halifax Media Co-op. That collaborative approach to bargaining is really not that different from the bargaining associations all four affected unions were proposing earlier, Cavanagh argues. At that time the government rejected that idea. Now Dorsey ruled that response was wrong.

Dorsey suggests that in the next arbitration phase, scheduled for early February, the unions explore the idea of amalgamated successor unions for at least some if not all of the four proposed bargaining units. An amalgamated successor union is a legal entity, with its own bylaws, leadership, and all the legal trimmings, made up of the relevant existing health care unions. Those unions keep their own leadership, members, etc.

Dorsey thinks that there is nothing in Bill 1 that forbids the collaborative bargaining approach. “We could have been off to the races without going through the arbitration process,” Cavannagh says. Now there is another opportunity for the unions to come up with a collective bargaining structure. More formal than a bargaining association, the so-called amalgamated successor union, will need to encompass all the legal attributes of a bargaining agent.

The next phase of the arbitration hearings starts on February 2nd. It's not yet known whether the meetings will be open to the public.