Hands off HLDAA - Ontario Nurses' Association

Hands off HLDAANo need to fix what is not brokenCurrent Provision (HLDAA) Proposed Changes (Bill 55)1. Health care employers and unions don’t need new timelines to expedite the arbitration process;HLDAA already sets out timelines that are more restrictive than those proposed in thelegislation.Section 9 (4 and 5) Time for decision(4) The board of arbitration shall give a decisionwithin 90 days after the last (or only) member ofthe board is appointed.Extension(5) The parties may agree to extend the timedescribed in subsection (4), either before or afterthe time has passed.Time for decision(5) The board of arbitration shall give its decision on orbefore the date that is 12 months after the referral date,unless an extension is obtained under subsection (8).Application to OLRB for extension(8) The parties may jointly apply to the Ontario LabourRelations Board for an order extending the 12-monthdeadline, and in that case the following rules apply:1. The application must be filed with the Boardbefore the 12-month deadline expires.2. The Board,i. must deal with the application on anexpedited basis,ii.iii.may grant only one extension in eacharbitration proceeding, andmay grant an extension only inexceptional circumstances.3. The extension, if granted, must not exceed twomonths after the date that is 12 months after thereferral date.2. The provincial government does not need to impose criteria for proper consideration byarbitrators: HLDAA already contains criteria that arbitrators must consider in making theirawards. Use of the term “proper” opens up awards to unnecessary judicial review whilepromoting delay and substantially increasing costs to the parties.Section 9 (1.1) - Criteria(1.1) In making a decision or award, the board ofarbitration shall take into consideration all factorsit considers relevant, including the followingcriteria:1. The employer’s ability to pay in light of its fiscalsituation.2. The extent to which services may have to bereduced, in light of the decision or award, ifcurrent funding and taxation levels are notincreased.3. The economic situation in Ontario and in themunicipality where the hospital is located.4. A comparison, as between the employees andother comparable employees in the public andprivate sectors, of the terms and conditions ofemployment and the nature of the workperformed.Same(1.7) The written reasons must clearly demonstrate that theboard of arbitration has given proper consideration tothe criteria set out in subsection (1.1), and may dealwith other matters as the board considers appropriate.Ontario Nurses’ Association/Hands Off HLDAA – No Need to fix what is not broken/April 18, 2012 1

Current Provision (HLDAA) Proposed Changes (Bill 55)5. The employer’s ability to attract and retainqualified employees.3. Health care unions and employers do not need a new mechanism to deal with undue delay in therelease of arbitration awards; HLDAA already has such a mechanism which involves the Ministryof Labour – although it is noteworthy that the provision has never been invoked by a union oremployer group to date!Section 6 (15) - Order to expedite proceedings(15) Where a board of arbitration has beenestablished, the chair shall keep the Ministeradvised of the progress of the arbitration andwhere the Minister is advised that the board hasfailed to render a decision within the time set outin subsection 9 (4) or within the time extendedunder subsection 9 (5), the Minister may, afterconsulting the parties and the board, issuewhatever order he or she considers necessary inthe circumstances to ensure that a decision willbe rendered within a reasonable time.Deemed referral to OLRB(10) If the appointment of the board of arbitration isterminated under subsection (9), all outstandingmatters in dispute are immediately deemed to havebeen referred to the Ontario Labour Relations Boardfor its decision.4. The provincial government does not have to mandate the reasons for decisions be provided onrequest; HLDAA awards almost always contain a degree of reasoning behind the decisions. It isalways open for any party to request reasons from the arbitrator and it is open for any nomineeto provide their reasoning for any decision with which she or he agrees or disagrees.No specific provisionReasons(1.6) When the board of arbitration gives its decision, itshall provide written reasons upon the request ofeither party.Same(1.7) The written reasons must clearly demonstrate that theboard of arbitration has given proper consideration tothe criteria set out in subsection (1.1), and may dealwith other matters as the board considers appropriate.5. Where arbitration awards under HLDAA are seen to be unduly delayed, HLDAA provides amechanism to address such concerns through the Ministry of Labour; we do not need or want asystem that removes jurisdiction from the arbitration board and hands it over to the LabourRelations Board for a quick decision based solely on written submissions.No specific provisionFinal submissions(11) Within seven days after the deemed referral, theparties shall file their final written submissions with theOntario Labour Relations Board.Ontario Nurses’ Association/Hands Off HLDAA – No Need to fix what is not broken/April 18, 2012 2Same(12) A party that made final written submissions to theboard of arbitration under subsection (4) shall file thesame submissions with the Ontario Labour RelationsBoard, and they constitute the party’s final writtensubmissions under subsection (11).Same(13) A party that did not make final written submissions tothe board of arbitration under subsection (4) shall filefinal written submissions with the Ontario Labour

Current Provision (HLDAA) Proposed Changes (Bill 55)Relations Board, including, at a minimum,submissions that comply with subsection (1.4), andthey constitute the party’s final written submissionsunder subsection (11).OLRB decision if submissions filed(14) If one or both parties file final submissions undersubsection (11), the Ontario Labour Relations Boardshall make its decision on the basis of thosesubmissions, unless the Board believes that it isnecessary or advisable, in the circumstances, to orderotherwise.OLRB powers if no submissions filed(15) If neither party files final submissions undersubsection (11), the Ontario Labour Relations Boardmay, on its own initiative, do one or more of thefollowing:1. Take whatever action authorized by subsection(17) it believes is necessary or advisable, in thecircumstances, to assist it in making a decisionunder subsection (10).2. Take any actions and make any orders that meetboth of the following conditions:i. the Board believes they are necessary oradvisable, in the circumstances, andii.they are authorized by a regulation madeunder clause 19 (1) (d.1).6. The parties in the health care system are sophisticated and very experienced in makingsubmissions to arbitration panels under HLDAA. A review of arbitration briefs/submissions willreveal that the parties make extensive submissions on the impact of the criteria and wouldconstitute a ‘gold standard’ for any sector.No specific provisionSubmissions re criteria(1.4) The parties shall make submissions to the board ofarbitration on each of the criteria set out in subsection(1.1).Exception(1.5) Subsection (1.4) does not apply if the parties jointlyagree otherwise and notify the board of arbitration ofthe fact in writing.7. HLDAA is not a perfect system; but it has served the parties well since its enactment in 1964. Ifthere are concerns with other acts that impose interest arbitration on other public sector groups,the provincial government should deal with those issues. It is inappropriate to paint all groupswith the same brush – especially where fixes in one sector are doomed to fail in another.8. We believe that unions and health care employers alike consider the proposed changes toHLDAA to be unnecessary and unwelcome. We request HLDAA be removed from the proposedlegislation (Bill 55) by deleting Schedule 30.Ontario Nurses’ Association/Hands Off HLDAA – No Need to fix what is not broken/April 18, 2012 3