IN THE MATTER OF AN INTEREST ARBITRATION PURSUANT TO THE FIRE PROTECTION AND PREVENTION ACT, The Corporation of the Town of Oakville.

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1 BETWEEN IN THE MATTER OF AN INTEREST ARBITRATION PURSUANT TO THE FIRE PROTECTION AND PREVENTION ACT, 1997 The Corporation of the Town of Oakville and ( Town ) Oakville Professional Fire Fighters Association Local 1582, International Association of Fire Fighters ( Association ) BEFORE James Hayes, Chair Michael Riddell, City Nominee Jeffrey Sack, Q.C., Association Nominee APPEARANCES For the Association Carmen Santoro, Advocate, IAFF/OPFFA Paul Evans, Negotiation Committee James MacMurray, Negotiation Committee Tom Parker, Association Secretary Fab Biagi, Association Treasurer Dan Vanderlilie, District Vice President, OPFFA For the City Stephen Bird, Counsel Lyn Hunt, Manager, Labour Relations Brian Durdin, Fire Chief George Birtig, Deputy Fire Chief Andy Flynn, Deputy Fire Chief Paul Bissoneault, Deputy Fire Chief Sharon Caeiro, Human Resources Consultant Mediation was held on September 30, An arbitration hearing was held on January 27, Supplementary submissions were provided, last received on April 27, An Executive Session was held on June 20, 2017.

2 AWARD Introduction 1. This interest arbitration relates to the renewal of the Collective Agreement that expired on December 31, The bargaining unit consists of approximately 226 firefighters. Oakville has a population of approximately 198, The parties first exchanged proposals on October 26, 2015 and met in collective bargaining on a number of dates thereafter. In previous rounds of bargaining they have been successful in direct negotiations. The last interest arbitration occurred in The renewal Collective Agreement will consist of all matters agreed to by the parties and the following terms and conditions. Any proposals not referred to below are dismissed. 4. In determining the outstanding matters, we have been guided by the criteria identified in Subsection 50.5(2) of the Fire Protection and Prevention Act, 1997 ( FPPA ). FPPA criteria include the following in addition to all factors the board considers relevant : 1. The employer s ability to pay in light of its fiscal situation. 2. The extent to which services may have to be reduced, in light of the decision if current funding and taxation levels are not increased. 3. The economic situation in Ontario and in the municipality. 4. The comparison, as between the firefighters and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed. 5. The employer s ability to attract and retain qualified firefighters. 2

3 Salaries Association Position 5. While recognizing the local Halton police comparator, the Association submits that it should be awarded wages commensurate with its superior position within a group of proposed firefighter comparators. 1 It also says that it has routinely achieved either a number one or two ranking in the province. 6. The Association requests a 2.95% wage increase effective as of January 1 st in each of 2016, 2017, and Town Position 7. The Town states that the appropriate comparators for wage setting purposes are Burlington, Vaughan, Kitchener, Brampton, Guelph, Mississauga, and Halton Police. 2 Nevertheless, the Town advances Halton police as the appropriate guidepost. 8. The Town rejects any suggestion that a blend of local police rates with a fire comparator should be used for three reasons: Article (g) of the Collective Agreement Such an approach would derogate from previous bargaining and introduce a comparator heretofore unused; the Collective Agreement makes no reference to fire comparators. There is no salary gap that should inspire the Board to blend the Halton police rate with that of a different comparator. 1 Reference was made to Halton police and the following groups with collective agreements beyond 2015: Barrie, Kitchener, Kingston, Sarnia, Vaughan, Caledon, Pearson Airport, Woodstock, Halton Hills. 2 Reply Brief, January 20, The Town rejects the following fire groups as inappropriate because they are too small : Halton Hills, Milton, Caledon, Pearson Airport, Woodstock, Sarnia. 3

4 9. The Town submits that Article 18.01(g) is a parity clause such that all increases are made in concert with those contained in the [Halton police] collective agreement : It is understood that if during the term of this agreement the HRPA [Halton Regional Police Association] negotiates with the HRPSB an annual 1 st class police constable wage rate that exceeds that provided to the 1 st class fire fighters by more than $61, the Town will adjust the 1 st class fire fighter rate to maintain the 1 st class fire fighter annual wage at $61 more than the 1 st class police constable rate with the HRPSB. 10. The Town does not challenge the Association s representation that it typically is ranked either number one or two in the province in terms of wages but submits that: There is no demonstrable pattern, however, of any mutual intention to remain the top paying municipality in the Province. In short, there is no juridical reason as to why Oakville should be first or second in the Province and no juridical reason as to why this phenomenon ought to continue with the next iteration of the collective agreement. 11. The Town written submission asserts that the Halton police collective agreement provides for increases effective January 1 st each year with annual salaries respectively of: $94,834 (2016); $96,635 (2017); $98,373 (2018) The Town submits that Halton police salaries would be fair and reasonable. Discussion of Salary Issue General 13. Collective bargaining is not a mathematical exercise with one precise answer. There is significant room for honest disagreement among experienced labour relations practitioners as to the arbitrated result that would best replicate an 3 We note that Schedule A to the police agreement includes the following year-end salaries: (2015) $92,961; (2016) $94,773; (2017) $96,574; (2018) $98,312. 4

5 agreement if it had been freely negotiated in a right to strike or lockout environment. All that an interest arbitrator can hope to do is to produce an award that falls within a reasonable range. 14. It is also trite to say that every collective bargaining situation requires individual assessment. There is no hierarchy of relevant factors. A factor that may be decisive in one situation may be irrelevant in another. Interest arbitrators must respect the local collective bargaining environment. Purported parity clause 15. We are unable to accept that Article (g) of the Collective Agreement conveys any understanding that the parties have agreed upon Halton police as the designated comparator for purposes of interest arbitration. Nor do we see the clause as a parity clause. The clause provides a simple guarantee that firefighter wages will not fall below Halton police during the term of the Collective Agreement. The provision does not foreclose reference to other fire comparators by either the Association or the Town in either future bargaining or at interest arbitration. The clause provides a guaranteed floor, no more. In fact, Oakville fire wages have been higher than Halton police in every year since Previous practice 16. The Town observes that there is no mention in the Collective Agreement of any other fire department as a comparator and submits that, if there had been any such intention, it would have been referenced there. 17. We are unaware of any fire labour relations practice that identifies agreedupon comparators, to be used in future bargaining or at interest arbitration, in collective agreements. Furthermore, there is no evidence before the Board of any 5

6 past practice of exclusive comparative reference to Halton police in previous rounds of collective bargaining. 18. Even had there been any such practice, the Town Reply Brief proceeds differently and belies the claim. It identifies no less than six fire comparators that the Town itself refers to as appropriate. 4 Salary gap 19. The Town position - that there is no salary gap between Halton Police and an appropriate comparator worthy of attention - is also without merit. 20. Undisputed material before the Board illustrates that Oakville fire led Halton police and all of the Town s proposed wage comparators in 2014 and Halton police 5 trailed all the other mutually agreed-upon fire comparators in If Halton police wages were awarded here, Oakville fire would fall from $1,001 above Kitchener fire in 2015, to $1,266 below in A similar divergence would result in the case for Vaughan. Both Kitchener and Vaughan have freely negotiated collective agreements for 2016 and They are both fire comparators acknowledged by the Town. Comparator wage information 21. We have reviewed the salary data concerning the mutually agreed-upon comparators 6 and paid particular attention to wages freely negotiated by Halton police, Kitchener fire and Vaughan fire through 2016 and January 20, 2017, p Equally with Burlington fire 6 Halton police together with Burlington, Mississauga, Brampton, Kitchener, and Vaughan fire. 6

7 22. The material discloses that Kitchener and Vaughan fire negotiated salaries approximately $600 ahead of Halton police in 2016 and approximately $1100- $1200 ahead in Leading wages submission 23. We accept the Town s position that it has never expressly accepted that the Association should be first, or near first, in provincial fire wages whatever the outcomes may have been in previous rounds of collective bargaining. There is no evidence before us of any such agreement and we do not see grounds that it may be implied. 24. However, regardless of any express employer agreement, there can be no doubt that the relative position of Oakville fire is an important relevant fact. It is undisputed that the historical result of fire bargaining has been to place Oakville firefighters at or near the top. This is a factor that commands arbitral attention. Conclusion 25. Notwithstanding the Town s late embrace of Halton police as a purported exclusive comparator for purposes of wage determination 7, the original written Briefs from both parties 8 make it clear that there is overlapping acceptance of several other fire comparators. From this mutually accepted group, freely negotiated collective agreements have been reached through 2016 and 2017 for Kitchener and Vaughan. 26. In these circumstances, we have sought to achieve an outcome that balances both regional police and comparable firefighters while, at the same time, recognizing that Oakville fire has led all of these groups in wages in recent years. 7 April 20, Town: January 20, 2017; Association: January 10,

8 27. Insufficient fire comparators exist for 2018 to permit us to render an award for that year. Salary Award 28. We direct an amendment to the wage schedule to incorporate the following first class firefighter wage rates: January 1, 2016 $95,590 January 1, 2017 $97, All other classifications are to be increased by the same percentages on the same effective dates. 30. Retroactive wages to be paid within 60 days to current employees and within 90 days to those who have left the bargaining unit. Term 31. January 1, 2016 to December 31, 2017 Remaining Issues 32. Article 10.04: remove references to Company officer training program and replace with NFPA training or equivalent. 33. Article 13: current hours of work for day staff to be inserted into Collective Agreement. 34. Article 15.03: Association proposal granted. 8

9 35. Article 15.02(a): Vacation entitlement 7 weeks at 30 years 36. Article (HSA): $3,000 annually to age Article 6.01: Town proposal granted 38. The parties are requested to advise the Board forthwith, with an explanation in writing, if there is an issue between them concerning the renewal of any existing Letters of Understanding. In the absence of any objection, we direct their renewal. Implementation 39. All changes to be effective within 60 days, or a reasonable period thereafter, except as specified above. Board To Remain Seized 40. The Board will remain seized until the parties enter into a formal Collective Agreement. Dated at Toronto, this 21 st day of August, James Hayes See attached Michael Riddell See attached Jeffrey Sack, Q.C. 9

10 Dissent of City Nominee I have reviewed the Award of the Chair in this matter, and I dissent on the issue of the wage increases. In the nine years preceding the term contained in this Award, the average difference in salary between the first class Constable with Halton Region Police and first class Firefighter with Oakville Fire Department was $368. This two year Award dramatically raises the average to $1,002 for the term contained in this Award. Police and Fire wage parity is the norm throughout the Province. For example, a recent freely negotiated settlement between the City of London and its Firefighters reflected wage parity for the term of the Collective Agreement. In this Award, the Chair should have given greater consideration to the historical average difference in rates between Police and Fire rates of pay. Dated at Toronto, Ontario this 2nd day of August, Michael Riddell City Nominee 10

11 Partial Dissent of Association Nominee All interest arbitrators in Ontario are agreed that, when setting wage rates for firefighters, consideration should be given to the wage rates of local police and comparable firefighter groups. However, in my view, more weight should have been given to maintaining the standing of Oakville firefighters relative to firefighters in other comparable municipalities in Ontario. In regard to the Health Spending Account, I would expect the parties, in the next round of negotiations, to add to the incremental change in the Chair s Award (from $2,700 to $3,000) by extending coverage of retired firefighters to age

12 IN THE MATTER OF AN INTEREST ARBITRATION PURSUANT TO THE FIRE PROTECTION AND PREVENTION ACT, 1997 BETWEEN The Corporation of the Town of Oakville and ( Town ) Oakville Professional Fire Fighters Association Local 1582, International Association of Fire Fighters ( Association ) BEFORE James Hayes, Chair Michael Riddell, Town Nominee Jeffrey Sack, Q.C., Association Nominee APPEARANCES For the Association Carmen Santoro, Advocate IAFF/OPFFA For the City Stephen Bird, Counsel Bird Richard The matter was addressed by written submissions.

13 AWARD Introduction 1. An issue has arisen relating to a provision in an Interest Award dated August 21, 2017 ( Award ). The Association advises that: The parties are at impasse and have failed to implement a new collective agreement reflecting the award from Arbitrator Hayes. 2. The Award, at paragraph 36, modified a pre-existing Health Spending Account ( HSA ) clause: Article (HSA): $3,000 annually to age The Association maintained initially that all firefighters who retired during the term of the Collective Agreement (January 1, 2016 December 31, 2017) are entitled to the referenced HSA increase. In Reply, the Association submitted that the increase should apply to all firefighters who reach the ages of The Town argues that the Award is a final decision that provided the HSA increase only to firefighters retiring after August 21, 2017 (the date of the Award). 5. Nine firefighters retired between January 1, 2016 and August 21, Four firefighters retired after August 21, 2017 and before December 31, Association position 6. The Association emphasizes that none of the aforementioned retirees will access any HSA entitlement any time soon given the age 65-threshold requirement. It submits that: Members commonly retire with the confidence and expectation that they would be included in any entitlement gained for the term, otherwise most 2

14 if not all would delay retirement until a current collective agreement is in place. The date that the award was issued should have no bearing on the increased HSA. 7. The Association observes hypothetically that, if the release of an interest arbitration award were delayed to a date following the expiry of a particular collective agreement, a HSA increase such as this one would affect no one who had retired during the currency of that agreement. Town position 8. The Town submits that the Board s jurisdiction to revisit its Award is limited by the doctrine of functus officio citing Chandler v. Alberta Association of Architects, [1982] 2 SCR 848. The Town acknowledges that an allowed exception arises where the manifest intention of the court or tribunal is not clear on the face of the decision. 1 It also referred the Board to Toronto (City) v. Toronto Professional Fire Fighters Ass n, Local 3888, [2014] O.L.A.A. No. 269 (Burkett). 9. The Town says that the Association did not request retroactivity for the HSA amendment. Further, the Board did not order it. The Town submits that paragraph 39 of the Award ( effective date clause) ends the matter: All changes to be effective within 60 days, or a reasonable period thereafter, except as specified above. 10. The Town also submits that Article 25 of the Collective Agreement 2 provides that the August 21, 2017 date of the Award was the date upon which the expired collective agreement was replaced by a new agreement. It 1 The Town refers to Chandler at p. 861 citing Paper Machinery Ltd. v. J.O Ross Engineering Corp., [1934] S.C.R. 186 where exceptions were enunciated. 2 Article 25 is a standard form clause found in many collective agreements. It reads in material part: This Agreement shall remain in force and effect from January 1, 2012 to December 31, 2015 and year-to-year thereafter until replaced by a new agreement. 3

15 says that this Article speaks to the applicability of the terms and conditions during a period of time after its expiry. 11. Finally, the Town points to Article (i) of the current HSA provision and argues that there has been no agreement by the parties to provide enhanced benefits to any employee who retired during the currency of the now expired collective agreement. Article (i) reads: A member who retires and is eligible for a Health Care Spending Account during the currency of this Collective Agreement shall not be entitled to any future enhancement of retiree benefits under this provision unless such enhancement is specifically negotiated by the parties. Association reply 12. On the functus issue, the Association refers to paragraph 40 of the Award submitting that the Board has not yet rendered a final decision: The Board will remain seized until the parties enter into a formal Collective Agreement. 13. The Association says that it did not ask for HSA retroactivity because there was no need. In the case of HSA improvement, the awarded benefit increase will not take effect in many cases for 10 years from the date of the Award. Decision 14. The parties do not disagree about the general principles governing the doctrine of functus officio. The authorities relied upon by the Town are instructive. 15. Sopinka, J. in Chandler at pp said the following-- with notable reference to the application of the doctrine to administrative tribunals: Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the 4

16 finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp., supra. To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.. Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. (bold added) 16. Arbitrator Burkett explained the particular applicability of the Chandler opinion to interest arbitration in Toronto (City) at paras : As well, the common law doctrine of functus officio does not prevent a board of arbitration from completing its award or resolving an ambiguity in the award The Supreme Court in Chandler, supra., was careful to recognize that, in the case of administrative tribunals, the doctrine of functus officio must be applied with flexibility because of the absence of appeal to a higher court except on questions of law. This is especially so in the case of interest arbitration. In this case, if we were not allowed to clarify or complete our award, a major dispute would remain between the parties upon entering into their renewal agreement. This would inevitably produce a grievance to be decided by a rights arbitrator under language that purportedly does not clearly express the manifest intention of the interest board of arbitration that has set the terms of the agreement. The Fire Protection and Prevention Act contemplates that, to the extent possible, the award be 5

17 complete and unambiguous and thereby provide a fresh point of departure to parties who are in an ongoing relationship. It does not contemplate that the award itself be a source of unresolved conflict between them. While we are not free to alter or change our award once it has issued, we are free to complete our award or to resolve any ambiguity in the award should such be identified prior to the parties entering into their collective agreement. Apart altogether from the manifest intention exception or the need to complete or to resolve ambiguity, the Fire Protection and Prevention Act requires under s.50.5(4) that we remain seized after the issuance of an award in order to deal with all matters in dispute between the parties prior to a collective agreement coming into effect between them. The section is mandatory. The policy reason in support of this requirement is rooted in the desire to have issues arising from the issuance of an award, such as this, dealt with expeditiously by the same panel that has heard the case, considered the competing positions on the merits and issued the award that is the source of the dispute that is preventing the parties from entering into a collective agreement in other words, to have those who know what they awarded and why they awarded it resolve these types of issues so that the parties may enter into a renewal collective agreement with a clean slate. (bold added) 17. Subsection 50.5(4) of the Fire Protection and Prevention Act ( FPPA ) reads: Where the parties have not notified the board of arbitration in writing that, during the bargaining under this Part or during the proceedings before the board of arbitration, they have agreed upon some matters to be included in the collective agreement, the board shall decide all matters in dispute and such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties. 18. As previously noted, the Town relies in particular upon the effective date clause in the Award asserting that it conclusively disposes of the Association HSA claim made here. 19. However, such a clause is a standard interest award provision that may not be viewed in isolation. It should not be considered as a stand-alone clause bereft of relevant context especially when a board has remained seized. As is common in interest awards, several of the operative provisions in our August 21, 2017 Award 6

18 were stated in summary form. Arbitrators anticipate that the intention of succinct directions will usually be easily understood and readily reduced to writing when collective agreements are prepared for execution. But, it is not rare for disagreements to arise requiring clarification or for a board to be requested to complete an award. For that reason, it is the universal practice of interest arbitration boards to remain seized, as we did in this case, until parties enter into a formal collective agreement. 20. We turn now to the specific matter raised here by the Association. 21. It is not normally seen as practical, by way of example, to award vacation or conventional health care benefits retroactively. Effective date clauses serve to address such practicalities as does the typical reasonable grace period that is often included. The HSA provision in issue here, however, differs sharply from a more typical benefit adjustment. In this case there was never a question that the HSA improvement would operate prospectively. The Town has not challenged the Association representation that the firefighters who retired between January 1, 2016 and December 31, 2017 will not access the awarded HSA benefit for many years to come. In this circumstance, the Association s assertion that it never saw its request for HSA improvement in terms of retroactivity is not only plausible but makes common sense. Accepting the Association position will cause no implementation problem of any kind. 22. Accordingly, we do not see that the effective date clause presents a bar to providing the clarification requested. It was never our intention that firefighters who happened to have retired before August 21, 2017 should be denied the improved HSA benefit while their colleagues who retired within the following four months should not. All such firefighters should be treated equally, as was intended. As the operative HSA provision of our Award is now said to be ambiguous, we are prepared to provide the clarification sought. In our view, as contemplated by Chandler, and explained in Toronto (City), we have the right and obligation to make 7

19 clear our manifest intention. We have the further right and obligation to complete our Award given ss. 50.5(4) of FPPA. We note, finally, that we reserved jurisdiction, by remaining seized of the dispute, for reasons that would include a purpose such as this. 23. The remaining Town submission also fails. Article 25 of the Collective Agreement is a conventional bridging provision. The argument that the Award has not produced a new Collective Agreement with a term effective from January 1, 2016 is completely untenable. To accept such a proposition on the basis of the language of Article 25 would produce an unprecedented outcome. 24. The belated effort of the Association in Reply to extend the benefit of the HSA enhancement to previously retired firefighters is also rejected, given the presumptive limitation in Article (i) of the predecessor Collective Agreement. It was never an issue in the arbitration. 25. The Board finds that Article of the Award is to be applied to all firefighters who retired between January 1, 2016 and December 31, Dated at Toronto, this 22 nd day of May, James Hayes See attached Michael Riddell See attached Jeffrey Sack, Q.C. 8

20 Dissent of the Town s Nominee I have reviewed the Award of the Chair in this matter, and I dissent. I disagree with his conclusion that: Accordingly, we do not see that the effective date clause presents a bar to providing the clarification requested. The Award of the Chair specified that: All changes be effective within 60 days, or a reasonable period thereafter, except as specified above. The Award specifically made wage increases retroactive to January 1, 2016 but did not explicitly award retroactivity on the increase to the Health Spending Account. If the Town had proposed an issue such as an increase in dispensing fees on prescription drugs and the Chair awarded the Town s proposal, I am confident that he would not decide on retroactivity back to January 1, 2016, but instead would rely on the awarded language of effective within 60 days, or a reasonable period thereafter. I respectfully submit that the Chair s decision does not simply clarify his Award but instead amends it. Dated at Toronto, Ontario this 19th day of May, 2018 Michael Riddell Town Nominee 9

21 Addendum of Association Nominee The award provides that firefighters who retire during the currency of the collective agreement are entitled to an improvement in HSA (Article 17.01) but that the HSA enhancement does not extend to previously retired firefighters, due to a limitation in Article 17.02(i) of the predecessor collective agreement. The unfortunate result is that firefighters who have retired in the past cannot share in the improvement of terms and conditions that are negotiated in the current collective agreement or subsequent collective agreements. This is an inequitable situation that should be rectified by the parties in the next round of negotiations. 10