[1998] OLRB REP. NOVEMBER/DECEMBER 968
2339-98-R Ontario Public Service Employees Union, Applicant v. Huntsville District Memorial Hospital (Algonquin Health Services), Responding Party v. Service Employees Union, Local 478, Intervenor
BEFORE: D. L Gee, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
APPEARANCES: Richard Blair, Pat Honsberger, Marlene Gerrard, Glenna Newton-Long, Barbara Schwalny and Anita Woolman for the applicant; Chris White, Vaughn Adamson and Elizabeth Pearce for the responding party.
DECISION OF THE BOARD; December 22, 1998
The style of cause is hereby amended to reflect the correct name of the responding party: "Huntsville District Memorial Hospital (Algonquin Health Services)".
This matter is an application for certification filed on October 8, 1998. A vote was held on October 16, 1998. The parties have agreed on the following bargaining unit description:
all registered and graduate nurses and registered practical nurses employed in a nursing capacity by Huntsville District Memorial Hospital (Algonquin Health Services) through its home care programs operated through the Muskoka East Parry Sound Community Care Access Centre located in the District Municipality of Muskoka and in East Parry Sound, save and except supervisors, persons above the rank of supervisor, homemaking coordinator, PCS Coordinators, Case Managers, therapists, office and clerical workers, homemakers and persons for which any trade union held bargaining rights as of October 8, 1998.
The only outstanding issue is one raised by the responding party which takes the position that all of the persons the applicant (the "union” or "OPSEU") seeks to represent are independent contractors such that there are no employees in the bargaining unit.
This same applicant was certified by the Board to represent all home care workers of the responding party by decision dated September 9, 1998. As in this application, the responding party argued that the home care workers are independent contractors and not employees. For the reasons set out in the Board's September 9, 1998, decision the Board determined that the home care workers are "dependent contractors" and thus employees for the purposes of the Act
When the instant matter came on for hearing, the parties were in possession of the Board's reasons for its determination that home care workers are employees and not independent contractors. The parties shared an interest in obtaining an expeditious determination from the Board as to the status of the nursing service providers (hereinafter "nurses") in issue in the present application. Accordingly, the parties proposed, and the Board accepted, that the responding party would set out for the Board the basis on which the responding party asserts that the nurses differ from the home care workers such that a conclusion different from that reached in the home care workers' case is appropriate following which the panel would consider whether any of the facts asserted by the responding party would, assuming such to be true, result in a determination that the nurses are independent contractors as opposed to employees. If the panel was of the view that none of the facts relied upon by the responding party would result in a finding that the nurses are independent contractors, such would be the end of the matter. If the panel was of the view that one or more of the facts may result in a determination that the nurses are independent contractors, the parties would be given an opportunity to make further submissions on such factors and/or call viva voce evidence.
The background and context in which this issue arises is set out in detail in the Board's decision dealing with the home care workers (see: Huntsville District Memorial Hospital (Algonquin Health Services), Board File No. 0827-98-R, dated September 9, 1998, as yet unreported) [now reported at [1998] OLRB Rep. Sept./Oct. 801] and will not be repeated herein. The differences between the home care workers and the nurses which are relied upon by the responding party in support of its assertion that the nurses are independent contractors are as follows.
On October 14, 1998 (after the release of the Board's September 9, 1998 decision concerning the status of the home care workers) a Revenue Service Specialist with the Workplace Safety and Insurance Board ("WSIB") issued a ruling on the status of one of the nurses who provides services through the responding party's home care program. The ruling indicates that, having reviewed the conditions of employment for the nurse, she is considered to be an independent contractor.
Services provided by nurses include initial assessment, planning and implementation of a nursing care plan for each client, the evaluation of the client's progress and need for nursing care plan variations, the provision of direct treatments, the teaching and education of the client and his or her family and caregivers, maintenance of nursing records respecting the client, communication with the client's health care team including the recommendation of other services required. Nurses have direct input into the development of the care plans and in determining the frequency of visits.
The nurses are not provided with vehicles or equipment used in the performance of their services. The standard assessment and treatment items commonly used by the nurses in their day to day practice for direct client care are provided by the nurses. These include stethoscope, sphygmomanometer, blood pressure cuffs, thermometers, scissors, tape measures, basic footcare supplies, flashlights, reference books and nurses' bag.
The responding party asserts that a lesser degree of direction and control exists vis-a-vis the nurses than is the case with the home care workers. The nurses must be licensed and have a professional designation. During the course of performing their duties, they exercise the skill and judgement of a nursing professional. The responding party asserts that the nurses exercise independent judgement in relation to the time at which they carry out their activities and the degree to which they carry out their activities. Nurses can make recommendations for change to a client's care program.
The responding party points to the method by which the nurses are paid as a distinguishing feature. The nurses are paid $27.41 per visit, which includes travel time. Homemakers are paid an hourly rate and are paid for their travel time. Both the nurses and the homemakers are paid 31 cents per kilometer travelled. The nurses' rate is not negotiated but rather is set by the responding party.
The homemakers have some degree of flexibility in terms of their schedule. Homemakers are permitted to rearrange their schedule and advise the coordinator after the fact. The responding party asserts that the nurses have a greater degree of flexibility. The only restriction on when a nurse must attend at a client's is the client's availability and medical needs. Outside of such considerations, the nurses are free to set their own schedules. The nurse advises the responding party of his or her schedule as part of the reporting process. The responding party points to the fact that the nurses, who are required to service clients seven days a week, have set up a weekend rotation system. In addition, the responding party points to the fact that nurses are not required to participate in the on call system but rather may do so on a volunteer basis.
The responding party asserts that the combination of the fact that the nurses are paid on a per visit basis and the fact that they can set their own schedules permits them to engage in an entrepreneurial activity. While the responding party estimates a visit to be approximately one hour and considers such estimate in the course of setting the rate paid to the nurses, it remains a fact that the nurses could schedule their visits in such a manner so as to optimize their earnings and clear their schedule for other earnings opportunities. The responding party asserts that there is a wider range of activities for the nurses, as opposed to the home care workers, to become involved in. The responding party points to the number of nurses who attended sessions put on for persons interested in putting in a request for proposal and the fact that two nurses have been successful as evidence of significant entrepreneurial activity. The responding party argues that greater scope for entrepreneurial activity exists due to the fact that the nurses' protected volume is down to 70 percent leaving the remaining 30 percent to be put out to tender.
The responding party points to the fact that third party agencies such as Multi-Professional Support Services Inc. are subject to the same type of controls that the individual nurses who provide services through the responding party are subject to. Restrictions are imposed on third party agencies as to who they may subcontract work to. Third party agencies are required to subcontract work to nurses who have gone through the third party's orientation program. Third party agencies cannot subcontract work to another agency without obtaining prior CCAC approval. Thus, the nurses, who are restricted to exchanging visits with another nurse who works through the responding party are not under any different restriction from that placed on third party agencies. Further, the responding party suggests that the restriction on a nurse's ability to have another nurse visit her clients is not significant given the type of service being provided.
Based on the foregoing, the responding party suggests that the nurses are under much less direction and control than the home care workers and exercise much greater independent judgement in the performance of their work than the home care workers. In addition, the method of payment and scheduling flexibility applicable to the nurses presents them with much greater opportunity to engage in entrepreneurial activity. These factors, the responding party submits distinguish the nurses from the home care workers and should cause the Board to conclude that the nurses are independent contractors and not dependent contractors.
After adjourning to consider the submissions made on behalf of the responding party, the panel advised the parties that the factors relied upon by the responding party to distinguish the nurses from the home care workers were not sufficient to lead the Board to conclude that the nurses were independent contractors as opposed to dependent contractors. It was our determination that the nurses are dependent contractors and hence employees for the purposes of the Act. Our reasons are as follows.
In determining whether the nurses at issue in the present case are dependent or independent contractors, the inquiry made by the Board is whether the relationship between the nurses and the responding party more closely resembles an employment relationship than a relationship that exists between two independent businesses. If the relationship more closely resembles an employment relationship than that which would exist between two independent businesses, a finding that a "dependent contractor" relationships exists will result.
In our view, accepting the differences between the nurses and the home care workers to be as asserted by the responding party, the nurses' relationship with the responding party more closely resembles an employment relationship than a relationship between two independent businesses.
The decision rendered by the Revenue Service Specialist with WSIB is of extremely limited utility to the analysis before the Ontario Labour Relations Board. The Revenue Service Specialist was charged with making a determination under a different piece of legislation where different policy and practical considerations apply. As with the Tax Court determination considered by the Board in the home care workers decision, the Revenue Service Specialist's decision was made in a non-labour relations context and carries with it much different consequences than does a Board determination.
While recognizing the nurses' ability to exercise independent judgement in the course of providing their services, including suggesting changes to the services being provided to a client, when considered in the context of the nature and location of the work being performed, we do not view such as a strong indicator of independent contractor status. Nurses are skilled professionals. They are required in the course of their duties to apply their skills and trained judgement. The nurses at issue in this case provide their services on a one-on-one basis in clients' homes. It is thus necessary for them to make educated decisions on their own concerning some elements of a client's care and to act on those decisions accordingly. As a result, in our view, the fact that the nurses exercise independent judgement in the course of providing their services is more accurately a reflection of the work itself as opposed to indication that the nurses are independent contractors.
The nurses have greater control over their schedules than the home care workers. The Board was told of one nurse that was able to schedule all of her appointments on two days, thus freeing the remaining days of the week. It is unclear as to just how much greater control the nurses have over their schedules than is the case with the home care workers. In the Board's decision concerning the home care workers, the facts concerning scheduling are set out at paragraph 12 as follows:
Once a homemaker accepts a client the coordinator places the times at which homemaking services are to be provided on a schedule consistent with the established care plan for the client. While that schedule represents an expectation of when services will be provided, the individual homemaker has the ability to make changes in the schedule. If the homemaker wishes to change the time at which the services will be provided, she can deal directly with the client to make the arrangements, and must then inform the coordinator of the changed schedule so that the new time can be noted on the coordinator's schedule. Sometimes the homemakers will inform the coordinator of the changed time after the service has already been provided.
Based on the foregoing, while the home care workers' schedules are set by the coordinator, it appears that the home care workers are free to reschedule their work as they see fit subject to client availability. In the case of the nurses, their schedule is not set by the coordinator, rather, they set their own schedule. Given the home care workers' ability to change the schedule created by the coordinator, the fact that the home care workers are originally scheduled by the coordinator whereas the nurses are not may be a distinction without a difference. In addition, however, nurses are not completely free to set their own schedule. Nurses must arrange their schedule around their clients' medical needs and availability. Given that many medical services have to be provided at particular times of the day and with a certain degree of regularity, it cannot be said that the nurses have complete control over their own schedule. In fact, given the need to schedule around medical needs (as opposed to simply client availability in the case of the home care workers) nurses may have less scheduling flexibility than the home care workers. In any event, in our view, the extent of the nurses' control over their schedule does not suggest that they are independent contractors.
It is suggested that the nurses have a greater ability to take advantage of entrepreneurial activity than the home care workers by virtue of their scheduling flexibility and method of payment. It is pointed out that two nurses have in fact bid for work through the Request for Proposal process and a large number of nurses have attended sessions put on for persons interested in putting in a Request for Proposal. It is asserted that the nurses could make a profit or suffer a loss as a result of the fact that they are paid on a per visit basis as opposed to on an hourly basis. While we agree that these are factors which would weigh in favour of a determination that the nurses are independent contractors, in our view they are outweighed by the factors weighing in favour of a determination that they are employees.
The nurses are an essential part of the home care program provided by the responding party and are integrated into the home care program. The very core and essence of what the home care program does is to provide in-home care services to people in need. The responding party does not "employ" nurses. The nurses at issue in this case are the means by which the home care program operates. Without the nurses the home care program would be unable to function. The nurses do not negotiate their rate of pay with the responding party. It is unilaterally set by the responding party and the nurses take it or leave it. The same is true of all of the conditions under which they work. There is no evidence as to the percentage of income the nurses earn from the responding party as opposed to other sources, however, it is apparent that the nurses have a regular ongoing, relationship with the responding party. Although there is room for the nurses to engage in entrepreneurial activity, the evidence of nurses doing so is extremely limited. The opportunity for profit and loss is similarly restricted. The nurses run no risk of not being paid and enjoy a very limited opportunity to structure their schedule so as to maximize income. The nurses cannot engage any substitute they wish. The nurses must conduct themselves in accordance with the Employee Conduct Manual and are appraised periodically. Nurses found not to be performing to standard may have their contracts terminated.
Having regard to the foregoing, it is our determination that the nurses' working conditions more closely approximate the working conditions of an employee than a relationship between two independent businesses. As a result, it is our determination, as conveyed to the parties at the hearing of this matter, that the nurses are "dependent contractors" and are thus employees for the purposes of the Act.
No statement of desire to make representations has been filed with the Board within the time fixed by the Board following the taking of the representation vote.
Having regard to the agreement of the parties, the Board further finds that:
all registered and graduate nurses and registered practical nurses employed in a nursing capacity by Huntsville District Memorial Hospital (Algonquin Health Services) through its home care programs operated through the Muskoka East Parry Sound Community Care Access Centre located in the District Municipality of Muskoka and in East Parry Sound, save and except supervisors, persons above the rank of supervisor, homemaking coordinator, PCS Coordinators, Case Managers, therapists, office and clerical workers, homemakers and persons for which any trade union held bargaining rights as of October 8, 1998,
constitute a unit of employees of the responding party appropriate for collective bargaining.
A certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
Meeting and hearing dates set previously are hereby cancelled.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted until the date that had been set for the hearing.
CONCURRING OPINION OF J. A. RUNDLE: December 22, 1998
The Ministry of Health in 1996 announced a new model for the provision and co-ordination of long-term care through the formation of Community Care Access Centres (CCAC's), which function as not-for-profit organizations. There was a transition period during which time non-profit and commercial service providers could become fully competitive. The present case and the Huntsville District Memorial Hospital (Algonquin Health Services), Board File 0827-98-R dated September 9, 1998 came before the Board during what I will call the three-year "transition period" "during which time frame the service providers are making the transition from non-profit to a competitive market. While my concurrence with the majority decision is based on these particular facts and the timing of this application – it would be my view that the Board after the end of the transition period will have to review very carefully the criteria it uses in the determination of independent versus dependent contractors.
The revamping and reorganizing of the health care delivery system will result in integrated health organizations. The Board will be challenged to re-visit its jurisprudence to keep abreast of the changing times and to more accurately reflect the actual conditions under which people in the health care community are working.
Further, the nursing profession has consistently lobbied for an increased independent role in the health care organization. Decisions such as the present case do little to add credibility to that assertion.
CONCURRING OPINION OF RENE R. MONTAGUE: December 22, 1998
I am in full agreement of the majority decision and absolutely in total disagreement with my colleague opposite that the Board will have to review the criteria it uses to determine independent versus dependent contractors. This cannot be done without clear legislative changes to the Act to effect such change. Further the nurses profession can have an independent role in the health care organization as dependent contractors.