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October 6, 1999
Attention: Nurses working in the community, new certs & former Bill 48 nurses
Arbitration decision on portability and previous experience
In a recent decision arbitrator Vince Ready dismissed a General Application Dispute by the Nurses Bargaining Association seeking coverage for a group of nurses under the portability and previous experience provisions of the current Provincial Collective Agreement. The decision affects some nurses working in the community, new certifications and former Bill 48 nurses who changed employment or became employed between July 1, 1997 and April 1, 1999.
Mr. Ready's decision upholds HEABC's contention that nurses who became employed between June 1, 1997 and April 1, 1999 at worksites not previously covered by the Master Collective Agreement are not covered by these provisions.
The NBA sought to have these two provisions applied effective April 1, 1999 to those nurses who had changed employment between June 1, 1997 and April 1, 1999. We based our argument largely on the fact that Standardization was effective for all nurses on April 1, 1999.
The issue relates to the process whereby the wages and benefits of nurses in both the acute care and community health fields are to be standardized or "leveled" under the current collective agreement. Some leveling was achieved in the previous PCA (June 1, 1997 to March 31, 1998) but the funds for this purpose were limited. Under the previous PCA employers were not obliged to spend beyond the limit of the leveling fund during the life of the agreement. The union did not seek retroactive application to June 1, 1997, because of this agreement.
However, BCNU did seek to have the provisions effective April 1 of this year.
In his decision of August 12 Mr. Ready asked: "Is there any support for the notion that Portability and Previous Experience provisions were effective June 1, 1997 but remained in suspense until full leveling became effective April 1, 1999?" His answer: "There is no support to be found in the IIC [Industrial Inquiry Commission] Report. It was made clear that because of financial considerations full leveling might not occur on the date of the first melded PCA (June 1, 1997)."
Mr. Ready went to note that the IIC commissioner, "recommended that non-leveled provisions became effective April 1, 1999 and the parties accepted that recommendation. There is no suggestion Portability and Previous Experience were excepted from that agreement and it would take the clearest language to give new effect to a past event. There is no such language and to give effect to the Union's submission would have an unintended effect. There is no mutual intention to support the union's case.
"The evidence before me does not support June 1, 1997 as the date of eligibility for a future payment and the Union cannot obtain at arbitration what it failed to get in bargaining."
Positive effects of Ready's ruling
- Employers who did apply the portability and previous experience provisions prior to April 1, 1999 cannot go back on that agreement.
- Article 27.05 of the Eighth Nurse Master Agreement continued to apply until April 1, 1999 and provided some recognition for previous experience for nurses hired into regular positions.
- There were provisions on portability and recognition of previous experience in the various municipal agreements which continued to apply until April 1, 1999.
- New certifications are governed by previous employer policies on portability and previous experience.
- Bill 48 worksites may have had provisions on portability and previous experience in the collective agreements negotiated by their previous unions.
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