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September 22, 1999
Employers Attack WCB Claimants
BCNU's current Provincial Collective Agreement contains an important change in how Workers' Compensation Board claimants are paid. This bulletin explains in chronological order why the change occurred and how it will affect WCB claimants.
BCNU would like to give this bulletin directly to all of our injured members. Unfortunately, however, the employer is refusing to provide us with their names, making it impossible for us to contact them directly. Therefore, if you know of any BCNU member currently off on WCB, please ensure they receive this important information.
The previous Collective Agreement language on WCB claims read:
"However, an employee off work on a WCB claim shall receive wages and benefits equaling but not to exceed their normal entitlement had they not suffered a compensable injury."
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As a result of tax refunds, some nurses were receiving more while on WCB than when working. While bargaining for a new Collective Agreement, the Employer proposed the "Net Pay" language.
Chronology
Bargaining began in the Spring of 1998 and on November 27, 1998 picket lines went up at some hospitals. The government appointed Brian Foley as mediator. By November 30, 1998, although a number of items had been agreed to, many items were still outstanding.Fifteen very important Nurses' Bargaining Association (NBA) items remained outstanding, including a number of monetary items:
- Workload Ratios
- Call-in of Additional Staff Standardization
- Vehicle Provisions for Community Nurses
- Pay Equity
- Wages
- Responsibility Pay
- On-call Pay
- Shift Premiums
- Qualification Differentials
- Telephone Consultations
- After-hours Service for Home Support
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HEABC also had outstanding issues including:
- WCB Leave Pay
- Call Back
- Telephone Consultations
- Responsibility Pay
- Educational Leave
- Hold on Further Standardization
- Melding of New Unions into the PCA with no Superior Benefits
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All these HEABC proposals were for roll backs and many of the proposals would have taken away rights won by BCNU through arbitrations over the years. It was clear that the only way the NBA could make progress on our outstanding issues was to enter into discussions with mediator on items of importance to both NBA and HEABC.
On November 30, 1998, both parties agreed to discuss:
| BCNU / NBA |
HEABC |
- Workload Ratios
- Standardization
- Wages
- Deferred Salary Leave Plan
- Call-in of Additional Staff
- On-Call Pay
- Shift Differentials
- Qualification Differentials
- Responsibility Pay
- After Hours Service in Home
- Support Vehicle Provisions
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- WCB Net Pay
- Melding of New Unions into the PCA with no corresponding Superior Benefits plus concessions in Responsibility Pay
- Home Support Entitlements
- On-Call Pay
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Bargaining resumed, but by December 2, 1998, Brian Foley decided talks weren't getting anywhere and he offered to write a report with recommendations if nurses stopped all job action. The nurses agreed and all picket lines came down and normal work began again. On December 8, 1998, Foley issued his report.A part of Foley's Report dealt with WCB. Foley's proposal was that nurses would be paid on the basis of Net Pay but he added,
"NOTE": "For greater certainty, regular net take-home wages means the amount the employee would have earned, based only on the employee's regularly scheduled hours of work, multiplied by the employee's straight time wage rate of pay." |
Foley's proposal meant that a nurse on WCB would not be entitled to include shift premiums, weekend premiums, responsibility pay, extra shifts worked by part-timers and statutory holidays falling on a regular rotation in the calculation for pay. It would also have meant that three arbitrations won by the BCNU awarding nurses the above mentioned benefits would be useless.
On December 11, 1998, BCNU Council voted to recommend rejection of the Foley Report because it contained a number of concessions and the process for allocation of new nursing positions was problematic.
Some membership information meetings were held regarding the content of the Foley Report.
Foley told BCNU that if the Report was not ratified by the membership, there was a very real possibility the government would impose a settlement. There was concern that an imposed settlement would contain the concessions in the Foley Report.
On January 4, 1999, BCNU Council met and decided to try bargaining with employers and the government to improve the Foley Report.
On January 9 and 10, 1999, the NBA Bargaining Committee met with HEABC and government representatives for more bargaining. We were able to make significant improvements to Foley's interpretation of the Net Pay language in that we were able to retain the gains made in the three arbitrations. However, the concept that nurses were to receive net wages and benefits equal to, but not to exceed, their normal entitlement had they not suffered a compensable injury, was to stay.
The new language is very specific:
"For the purposes of this clause, net pay is defined as the employee's regular net take-home wages to ensure that the non-taxable status of Workers' Compensation benefits does not provide an opportunity for an injured worker to earn more while on claim than if they were working." |
HEABC said at the bargaining table that the only purpose for the change in language was to ensure nurses did not get more while on WCB than nurses who were at work, and that is what the NBA agreed to.
Members in all the nurses unions in the NBA ratified the package which included new Collective Agreement language which reads:
42.07 (A) says in part:
"For the purposes of this clause, net pay is defined as the employee's regular net take-home wages to ensure that the non-taxable status of Workers' Compensation benefits does not provide an opportunity for an injured worker to earn more while on claim than if they were working." |
42.07 (C) says in part:
"However, an employee off work on WCB claim shall receive net wages as defined by (i)(A) above, and benefits equaling but not exceed their normal entitlement had they not suffered a compensable injury." |
To the NBA, this still means nurses should take home wages and benefits as if they had not been injured. HEABC is not interpreting the language that way and is advising employers how to interpret language.
Employers have made changes to net pay with which the NBA does not agree, namely:
- Cheque stubs do not show how the Employer arrived at gross pay.
- The Employer is deducting Union dues but the Union does not charge dues to nurses on WCB.
- The Employer is deducting Employment Insurance (EI) but EI does not take money that is not earned income.
- The Employer is deducting Canada Pension (CPP) but CPP does not take money that is not earned income.
- The Employer does not include overtime in the calculation of gross pay. BCNU says they must.
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Grievances have been filed on the above issues and we will be going to arbitration to argue on behalf of WCB claimants.
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