HR HealthCheck
Arbitrator Finds Nurse Not Entitled to Compensation for Time Spent Attending Re-Certification Testing
Date: August 29, 2018
A recent arbitral decision, South Bruce Grey Health Centre v. Ontario Nurses’ Association, clarifies the issue of compensation for re-certification under the centrally negotiated ONA Collective Agreement with the Participating Hospitals (Agreement). The two grievances (an ONA policy grievance and an individual grievance) raised the issue of “whether a nurse is entitled to compensation for attending testing for the purposes of re-certification required by the Hospital” (in the individual grievance, the testing was for Advanced Cardiovascular Life Support). In this edition of HR HealthCheck, we address the Arbitrator’s reasons for dismissing the grievances and what this means for employers.
Background
The ONA, along with the individual grievor, challenged the continuing education policy (Policy) of South Bruce Grey Health Centre (Hospital), arguing that attendance for mandatory re-certification constitutes “required work” and thus attracts collective agreement compensation. In contrast, the Hospital maintained that re-certification is simply a requirement of continuing to be qualified to perform one’s job duties, and denied that it amounted to “work” that would warrant payment.
The Hospital’s Policy has a stated purpose of encouraging and supporting nursing staff to “maintain and advance their knowledge and skills for the benefit of both nurses and the Hospital (and patients).” It also includes a requirement that nurses are not only certified, but that they complete periodic re-certification for various “professional nursing skill sets.” Compensation for completing re-certification is not mentioned in the Policy.
Decision
Arbitrator Surdykowski relied primarily on the following provisions of the Policy:
- As a condition of employment, the new employee must provide proof of required certification to their Director/Supervisor within 30 days of their date of hire. (para 4.7)
- It is the responsibility of the employee to maintain this certification/re-certification. (para 4.8)
- An employee who fails to provide proof of current certification within 120 days of their certification expiring will be deemed no longer qualified to perform their job duties and will result in the termination of his/her employment. (para 4.10)
In contrast, compensation for what is described as “Professional Development” is specifically addressed in Article 9 of the Agreement. The relevant clauses refer to mandatory programs provided by the Hospital, most of which are “in-service.”
The ONA conceded at the outset that the substance of Article 9 did not apply directly to the grievor’s situation since re-certification did not amount to a “learning opportunity.” It still asserted that the Article outlined the rate of compensation that the grievor ought to have been paid on the basis that attendance for re-certification was required by the Hospital and, therefore, constituted the performance of work. The Article provides for two key scenarios in which a nurse would receive compensation:
- When a nurse is on duty and authorized to attend any in-service program within the Hospital and during her or his regularly scheduled working hours the nurse shall suffer no loss of regular pay;
OR
- When a nurse is required by the Hospital to engage in any learning opportunities outside of her or his regularly scheduled working hours, the nurse shall be paid for all time spent on such learning opportunities at her or his regular straight time hourly rate of pay. (para 6, Article 9.07)
Ultimately, the Arbitrator held that re-certification is not a “learning opportunity” triggering payment under the Professional Development Article and that re-certification does not constitute “work” for the purposes of the Agreement. The grievor was therefore not entitled to compensation.
Practical Implications for Healthcare Employers
This case provides employers with helpful insight into the discrete issue of whether participation in required re-certification testing constitutes “work” for the purposes of collective agreement compensation.
In light of this decision, one of the key questions facing healthcare employers will be how their collective agreements characterize professional qualifications and ongoing learning. The Agreement and Policy in this case contain language that clearly distinguishes between participation in professional development training programs and testing needed to maintain one’s professional certifications.
In other words, there is a difference between becoming a better, more knowledgeable nurse, and simply remaining certified to practice nursing. As a caution, note that these two concepts may not be clearly separated in other collective agreements and education policies, which could create uncertainty for employers when determining which tasks require compensation.
A second key question arising out of this decision is how collective agreements allocate responsibility for completing certifications versus training programs. In this case, ongoing professional development is a “joint responsibility” between the Hospital and its nurses. In contrast, the Policy puts the obligation solely on the nurse “as a condition of employment.” It also imposes clear consequences for failing to complete this requirement, up to and including termination of employment.
Going Forward
Healthcare employers may want to review the specific wording of the professional development and re-certification sections in their respective collective agreements and education policies. Employers should also be mindful of how they have previously addressed compensation for these two tasks, and evaluate their current practices in light of this decision.
If you have any questions about the language of your collective agreement and how this decision may be interpreted in your workplace, please contact your regular Hicks Morley lawyer.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
