here - OSUM 2015

Transcription

here - OSUM 2015

Volunteer & Double Hatter Firefighters
in Ontario
2015 OSUM Conference and Trade Show
Kees W. Kort & Stephanie N. Jeronimo
Special Guest: Fire Chief Mark MacDonald
Statutory Regime for Labour Relations
•
Professional firefighters are governed by the Fire
Protection and Prevention Act
•
"Volunteer" firefighters are not covered by the Fire
Protection and Prevention Act for labour relations
purposes
•
Governed by the Labour Relations Act
•
But this raises the question: who is truly a volunteer
firefighter?
Fire Protection and Prevention Act (FPPA)
•
The FPPA is silent on volunteer firefighters other
than definitions
•
•
“volunteer firefighter” means a firefighter who provides fire
protection services either voluntarily or for a nominal
consideration, honorarium, training or activity allowance.
Volunteer firefighters are not included in Part IX –
Employment & Labour Relations
•
“firefighter” means a person regularly employed on a
salaried basis in a fire department and assigned to fire
protection services and includes technicians but does not
include a volunteer firefighter"
What does this mean for Volunteer
firefighters?
Questions raised:
•
Who is truly a "volunteer"?
•
Where do "part-time" firefighters fit into the
statutory scheme?
•
Are volunteer firefighters "employees" for the
purposes of employment and labour relations
legislation?
Legal Status of Volunteers in Ontario
Tecumseh (Town), 1998 CanLII 18256 (OLRB)
•
Certification drive of volunteer firefighters
•
Issue: are these individuals employees and thus
covered under the Labour Relations Act?
Tecumseh (Town), 1998 CanLII 18256 (OLRB)
•
Test: The essence of an employment relationship is the
exchange of labour for consideration in some form
•
•
Indicia: recruitment, compensation, training, benefits,
discipline, direction, etc
Result: These individual were found to be employees
•
Recruited through a formal process, which assessed skills, aptitude
•
Officially appointed by Town Council
•
Formal training is provided on an ongoing basis with testing
•
Chief had the power to discipline
Leamington (Municipality), [1999] O.L.R.B. Rep. 986
•
Application for certification of volunteer firefighters
under the Labour Relations Act
•
The issue was whether the individuals were firefighters
defined in section 41 the FPPA
•
The Board held that the firefighters fell within the
definition of "firefighter"
•
Regularly employed – on-call once a week
•
Salaried – regular monthly payments & extensive benefits
Hamilton (City), [2002] O.L.R.B. Rep. 183
•
Application for certification of volunteer firefighters
under the Labour Relations Act
•
The City argued that the individuals were "parttime" firefighters and fell within Part IX of the FPPA
•
The issue was whether they were volunteer
firefighters or professionals as defined in the FPPA
•
Are they "regularly employed" on a "salaried basis"?
Hamilton (City), [2002] O.L.R.B. Rep. 183
•
The Board held they were volunteer firefighters
•
Are they "regularly employed"?
•
•
No. They provide fire services in their spare time.
•
Attendance not monitored, no consequences for failing
to attend
On a "salaried basis"?
•
No. They perform fire protection services for nominal
consideration
Legal Status: A Comparison
Leamington – Part-Time
Hamilton - Volunteer
• Condition of employment to leave
other job to attend emergencies
• Not a condition
• Scheduled one week per month
• No schedule
• Individual decides if attends an
alarm or training
• No repercussions if does not attend
• Evaluation system
• Paid in rank
• No equivalent system
• Paid the equivalent of a full-time
professional firefighter in the nearby
city
• paid considerably less than the
professional firefighters
What about OMERS?
•
Eligibility extends to individuals who are employed by
an OMERS participating employer
•
Different eligibility rules for CFT and OTCFT employees
•
•
CFT employees – required to enroll immediately
•
OTCFT employees – membership is generally
optional, subject to meeting hours/earnings
thresholds
Issue: Employment status is determinative.
OMERS Issues
•
If an employee, then eligibility based on whether
CFT or OTCFT (subject to meeting appropriate
OTCFT thresholds).
•
For OTCFT purposes, consider other employment
(with the same or a different OMERS participating
employer). Risk of liability to employer if
membership not offered when required.
What unions represent volunteers forces?
•
Most unionized volunteers in Ontario are represented by the
Eastern Ontario Firefighters Association, affiliated with the
Christian Labour Association of Canada ("CLAC")
•
Retail, Wholesale and Department Store Union ("RWDSU")
•
Division of United Food and Commercial Workers
("UFCW")
•
United Steelworkers ("USW")
•
Teamsters' Union
•
International Association of Machinists and Aerospace
Workers ("IAMAW")
Ontario Municipalities with Organized
Volunteers
•
Tecumseh (1998)
•
Petawawa (2009)
•
Leamington (1999)
•
Georgian Bluffs (2010)
•
North Kawartha (2000)
•
•
Hawkesbury (2000)
Killaloe-Hagarty-Richards
(2011)
•
Hamilton (2000)
•
Sudbury (2013)
•
Thorold (2002)
•
Port Hope (2013)
•
Quinte West (2003)
•
Bayham (2014)
•
Belleville (2003)
•
Clarence-Rockland (2014)
•
Norfolk (2004)
•
Kawartha Lakes (2014)
•
Midland (2006)
•
Others
Collective bargaining: volunteer vs.
professional forces
•
Labour Relations Act (Volunteer forces)
•
•
Can strike and/or be locked out
Fire Protection and Prevention Act (Professional
forces)
•
Cannot strike or be locked out
•
Mandatory interest arbitration where an agreement
cannot be reached
Fire Chief Mark MacDonald
A Practical Look at the Volunteer Firefighter
From the Boots Up.
Deep River – Interest Arbitration Decision
•
In December 2014, Arbitrator Kaplan released an
decision allowing the Town of Deep River to
establish a composite fire department, where an
exclusively full-time department previously existed
•
Allowed for an exception to the contracting out
provision in the Collective Agreement
•
Permits the Town to reorganize the duties currently
performed by full-time firefighters
OPFFA Attitude regarding Volunteers
•
Wants the riddance of volunteer firefighters in
Ontario and does not want them to be organized
by the OPFFA
•
"The potential for conflict should we choose to
organize the ‘volunteer’ sector is high, especially in
composite departments where the constant turf wars
that exist make it virtually impossible to effectively
represent a group that you are attempting to
eliminate."
•
Quote attributed to: Fred LeBlanc, Interpid, Fall 2004
What does this mean for Double Hatters?
•
An Association can seek to expel a member from
their Association who is acting as both a volunteer
and professional firefighter in two municipalities
•
After expelling the member, an Association could
seek to have the firefighter's professional
employment terminated based on the closed-shop
provision
•
I.e. all employees must be a member of the Association
Double Hatters
•
Brief history of the Tom Hunse case
•
Two different disputes which are interrelated:
•
Rights arbitration – Association seeking Mr. Hunse's
termination from employment with the City
•
Labour Board – Mr. Hunse's DFR application
Duty of Fair Representation Issue
•
The policy issue is the legislative gap
•
Section 51 of the Labour Relations Act states that an
employer does not have to discharge an employee who
is no longer a Union member, despite the closed shop
provision of the Collective Agreement
•
The protection under the Labour Relations Act is not
contained in the Fire Protection and Prevention Act
•
Therefore, professional firefighters do not have the
protection of a provision similar to section 51
Duty of Fair Representation Issue
•
Ontario and Newfoundland are the only provinces
that have this legislative gap for professional
firefighters
•
The legislation that covers professional firefighters in
the other provinces have a provision similar to s.51
of the LRA, which states a non-member employee
cannot be required to be discharged for not having
union membership
Outcome?
•
Leads to a culture of fear for double hatters (e.g.
that they will lose their professional position)
•
Many double hatters have left their volunteer force
•
This effects smaller municipalities that are
dependent on volunteer firefighters
Volunteer & Double Hatter Firefighters
in Ontario
Kees W. Kort & Stephanie N. Jeronimo

here - OSUM 2015

Transcription

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