Adjudicator Reilly`s decision gives hospital employers some optimism about the redundancies provisions of the NAOS collective agreement and the obligations to pay retirement and separation benefits. Prior to Adjudicator Reilly`s decision, arbitrators always held that a nurse was entitled to an old age and/or separation allowance, even if positions were vacant elsewhere in the hospital concerned, as soon as the provisions of the COLLECTIVE agreement ONA had been triggered. The resulting costs to hospitals have been considerable. The collective agreement between the Ontario Seniors Association (NIA) and St. Michael`s Hospital (the hospital) also applies to most unionized nurses in the province. It requires hospitals to present a number of benefit options to nurses who are subject to long-term layoffs. Section 10.09 of the collective agreement offers the options available to these nurses: ”While the ONA still prefers to negotiate a new contract for our dedicated and well-trained members, the unfortunate reality is that the passage of Bill 124 by the provincial government impinges on free collective bargaining,” says Vicki McKenna, President of the ONA, RN. Bill 124 is the Ontario government`s legislation that limits the increase in below-cost-of-living compensation to a maximum of one per cent per year for some public sector workers in Ontario – but not all. It is clear that this government is targeting public sector workers, who are securitized for women, to make promises of wages. It freed men in male-dominated occupations, such as firefighters and police officers, from the effect of the law. Adjudicator Reilly found that the case law relied upon by the NIA was of no use in this case. In each arbitration proceeding submitted by the ONA, the parties were linked to the question of whether workers were entitled to offers of retirement options in accordance with Article 10.14 language. In each of these cases, there was little information on the reasons for the dismissals. The application of section 10.14 was not the subject of direct challenge or attention by the arbitrator.
None of the cases dealt with the key issue of this case – when are workers entitled to the risk of applying Article 10.14? In the absence of arbitration on the application of section 10.14, Adjudicator Reilly was required to base his decision on an interpretation of the relevant provisions of the collective agreement. When a nurse opts for a pre-retirement option under section 10.14, the collective agreement provides that for each year of service, up to a maximum salary of 52 weeks, she receives a pension of two weeks` salary at a maximum of 52 weeks. The NRO and the OHA will now hold arbitration on March 25 and 26 to reach a collective agreement. In support of this interpretation, Adjudicator Reilly found that, in the development of the collective agreement, the parties agreed to separate sections with different rights in the event of long-term dismissal. He stated that with the announcement of the layoffs to the nurses involved, St. Michael`s Hospital presented to the nurses with the options listed in section 10.09 of the collective agreement. The options did not include the old age and separation benefits under section 10.14.