A Nova Scotia continuing care centre must make “all reasonable efforts” to use casual and agency workers before requiring union members to provide essential services during a work stoppage, the province’s labour board has ruled.
The order resolves a dispute between The Magnolia Continuing Care Centre in Enfield and the Canadian Union of Public Employees, Local 5165 over staffing provisions in an essential services agreement.
The facility houses 71 elderly residents requiring 24-hour nursing care.
The board ordered the employer to use 48 hours of casual continuing care assistant labour per week during any work stoppage. The employer must also include one 8-hour agency shift and one 5-hour “night float” agency shift seven days a week.
“In the event that Magnolia cannot (after making all reasonable efforts) secure the CCA hours through the use of Agency and casual labour referred to in Items B and D above, they may require bargaining unit CCAs as necessary (and in accordance with all other terms in the ESA) to work in order to meet the essential staffing level,” the board stated in its December 18 order.
The ruling came after mediation between the parties nearly resolved all outstanding issues in their essential services agreement. One sticking point remained: “the degree to which, in the event of a work stoppage, Magnolia would commit to rely on casual CCAs to fulfill its essential services responsibilities under the ESA before staffing with Union CCAs,” according to the decision.
The board received evidence that the employer “routinely staffs using casual CCAs as well as using a third-party contractor (the ‘Agency’) for CCA staffing in addition to staffing with bargaining unit members.”
Staffing levels set at 81%
The parties had already agreed that continuing care assistant staffing levels must be maintained at 81% of regular operational levels during a work stoppage to meet operational and essential services requirements.
“For further clarity, 81% of normal capacity is 168.5 hours per day, or 1179.5 hours per week,” the board stated.
The agency workers “shall be assigned and scheduled as Magnolia sees fit and where possible included in the regular posted schedules during a work stoppage,” according to the order.
The board also ordered the employer to train a long-term care assistant working on contract with a third party and assign this person to handle deep cleaning during a work stoppage. “For clarity, this work will be done by the existing contract staff person and not assigned to a Union member during a work stoppage,” the decision stated.
30-day timeline
The union filed its application under the Essential Health and Community Services Act on November 18. The act requires the labour board to settle essential services agreement provisions within 30 days of receiving an application.
The employer advised in its response that the essential services agreement was nearly complete. Agreed-upon items included the framework document and appendices covering essential work functions, scheduling and collective agreement provisions.
“Magnolia noted that only two main items appeared to be outstanding in the negotiations of Appendix B: staffing levels for Continuing Care Assistants (CCAs) and Deep Cleaners,” the board noted.
Both parties agreed to proceed by mediation-adjudication, allowing the panel to rely on materials and discussions from mediation in any adjudication unless made on an explicit without-prejudice basis.
The mediation took place December 4. “The parties were in near agreement on resolution of the outstanding issues,” but did not settle the matter themselves, according to the decision.
After a case management conference December 5, both parties agreed to limit their submissions to the casual CCA staffing issue. They filed simultaneous submissions December 12.
The board issued its bottom-line decision December 18 to comply with the 30-day requirement, with full reasons to follow.
See additional information about this ruling in our sister publication HR Law Canada here.
