THE CECBA
BAN ON CLASSIFICATION GRIEVANCES CANNOT BE AVOIDED BY RELYING ON ARTICLE 3, HEALTH AND
SAFETY PROVISIONS OR CLAIMING AN ALLOWANCEGRIEVANCE DECISION OF
GSB VICE CHAIR PETRYSHEN, DATED NOV 10, 1999
GSB #2289/93, OPSEU#94B160
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In OPSEU (Lyons) and Ministry of Health, GSB
2289/93, an RN working in a psychiatric hospital claimed the forensic allowance paid to
RPNS. The collective agreement states such an allowance will be paid to RPNs who maintain
secure custody of dangerous patients.
Union counsel submitted that it was because of the
health and safety risks that the parties agreed that PNAs should receive additional
compensation. Since the RNs work in the same environment and are subject to the same
health and safety risks, counsel argued that RNs should also receive a forensic allowance.
Counsel also submitted that the different treatment has resulted in more stress on RNs.
The Union did not argue that the different treatment of
PNAs and RNs was based on a prohibited ground set out in Article 3.1 of the Collective
Agreement or was contrary to the provisions of the Human Rights Code. The
Arbitrator noted he understood why no Article 3 argument was made. "The Union likely
did not make such an argument because it recognized that such a submission could not
possibly succeed. It is clear that the payment of the forensic allowance to PNAs and not
to RNs does not constitute discrimination within the meaning of Article 3.1 of the
Collective Agreement."
On the health and safety issue, the Arbitrator stated:
"Although the fact that RNs do not receive a forensic allowance has had an impact on
the relationship between the two groups that constitute the nursing team and has resulted
in added stress for RNs, the parties did not intend the health and safety provision to be
interpreted so broadly so as to address the effects of a pay discrepancy. In my view, the
Union has been unable to demonstrate that the Employer has failed "to make reasonable
provisions for the safety and health of its employees."
The Arbitrator concluded "I agree with counsel for
the Employer that any resolution of this situation for RNs must be through an amendment to
the Collective Agreement. Since they are now unable to obtain relief by way of
classification grievances at the GSB, Mr. Lyons and other employees who feel they are
entitled to additional pay because of the nature of their work with forensic patients must
rely on the Union to attempt to advance their concerns with the Employer. Like other
employees who believe they deserve more pay or additional benefits, they will have to rely
on the bargaining process to achieve their objective."
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