In a recent interest arbitration award that was convened for the purposes of determining a labour dispute under the Hospital Labour Disputes Arbitration Act, the Board found that a stand-alone retirement home should most appropriately be compared with a long term care facility.
During the course of collective bargaining, the Union and the Employer were unable to resolve a number of issues because they fundamentally disagreed as to the nature of the Employer’s business.
Embassy West Senior Living (“Embassy West”) is a retirement residence in Ottawa. Embassy West maintained that as a retirement home, its first collective agreement with CUPE should be aligned with retirement home collective bargaining norms. Embassy West placed considerable weight on the fact that it was licensed under the Retirement Homes Act, and that residents were tenants who were subject to the Residential Tenancies Act. As such, the Employer argued that the only comparators that the Board should rely upon in the course of determining the issues in dispute were terms and conditions of employment in other retirement homes. The Employer also argued that the level of service provided to residents was entirely immaterial.
CUPE asserted that Embassy West was predominantly a long-term care facility, and that the first collective agreement should be governed by long-term care norms because long term care services were being provided to residents.
CUPE submitted that long-term care facilities were the appropriate comparators because the level of care provided by Embassy West was comparable to the care provided by long-term care facilities and not retirement homes. The Board of Arbitration agreed with CUPE and relied upon the following facts in the course of concluding that long term care home comparators were appropriate in this case:
- A significant number of residents were receiving care that was more closely akin to long-term care;
- The bargaining unit of employees was comprised of care staff who were either licensed, in the case of RPNs, or certified, in the case of PSWs, similar tothe staffing of long-term care facilities;
- Embassy West provided locked wards for residents with cognitive deficits requiring their confinement: 3.5 floors out of the 5 floors were secured at Embassy West;
- Embassy West provided assistance for the majority of their residents with respect to activities of daily living;
- Embassy West provided palliative care to residents;
- Extensive round-the-clock medical assistance was available on site i.e doctors, nurses, stroke, rehabilitation and physiotherapy specialists which indicated a high resident acuity level;
- Embassy West described its care as being of “hospital quality” and its marketing material indicated that the Facility’s “medical services differentiate us from our competitors and allow us to handle even the most complex of cases”.
All of these features caused the Board to conclude that the residence is most properly described as a long term care facility where most residents are receiving long term care and as such, long term care collective bargaining norms should be considered by the Board in the course of determining issues in dispute.
Long-term care facilities are funded by the Provincial government while retirement homes obtain their revenues primarily from rental revenues that are charged to residents. This has historically been a key factor in setting the two industries apart from one another. The Board in this case determined that registration under one piece of legislation or another is not as important as comparing the nature of the services being provided and the work that is being performed by employees in each of the sectors.
In our view, this Award is anomalous and the Board’s findings are entirely fact driven. Having said that, retirement home operators will have to be mindful of this award as they continue to look for opportunities to expand their market share by offering additional care and services to residents with high care or special care requirements when they either come into the Home or when they are already in the Home but require increasingly more continuous care as they age.
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