Changes Proposed to Ontario’s Fire Interest Arbitration Framework
Date: December 1, 2016
At long last, Ontario is changing several rules governing collective bargaining in the fire sector. But will these changes go far enough to address and alleviate the frustrations municipalities face when they engage in interest arbitration?
On November 16, 2016, the Ontario government introduced Bill 70, Building Ontario Up for Everyone Act (Budget Measures), 2016, omnibus legislation that would, among other things, implement amendments to the Fire Protection and Prevention Act, 1997 (FPPA). In this FTR Now, we discuss the scope of these proposed changes and their potential impact on the interest arbitration process.
Background on Current Fire Sector Interest Arbitration Regime
Currently, the fire sector interest arbitration regime requires the parties to engage in conciliation before referring the matter to interest arbitration. This process requires that one or both parties file a Request for Appointment of a Conciliation Officer with the Ministry of Labour. Once a Conciliation Officer is appointed, a conciliation meeting is arranged. If the Conciliation Officer is unable to assist the parties in reaching a collective agreement, the Conciliation Officer will issue a “no-board report.” It is only upon receipt of this report that the parties can proceed with appointing an interest arbitration board.
The process of getting to conciliation can be lengthy and frustrating. This is especially true given that the interest arbitration process under the FPPA requires a day of mediation (unless the parties otherwise agree to a different process). As a result, conciliation has often been regarded as a frustrating formality or “hoop” the parties must go through prior to advancing to the interest arbitration phase.
Additional frustrations have emerged where arbitration boards, in rendering their award, fail to address all of the outstanding issues and rather choose to remit one or more of the issues originally in dispute back to the parties for further negotiation (and ideally resolution), rather than providing a clear outcome on all outstanding issues. These situations have been extremely frustrating for employers, particularly in cases where the parties have waited many months for an award to be issued, and this leads to additional costs and delays.
In addition to the delays referenced above, employers have become frustrated with delays caused when additional written submissions are required following the arbitration hearing. This is often because the association’s position at arbitration was not clearly articulated prior to arbitration or because the association is not prepared to make arguments in opposition to the municipality’s issues at the hearing.
Summary of the Proposed Bill 70 FPPA Reforms
If adopted in their present form, the Bill 70 amendments would:
- repeal the current provisions requiring the parties to engage in conciliation before a board of arbitration can be appointed
- replace the conciliation process with an immediate referral to arbitration. A party will be able to refer all matters in dispute to arbitration simply by providing notice to the other party and to the Minister
- require the parties to make written submissions on all matters in dispute and to file those submissions in advance of the first day of hearing
- provide that in making a decision, a board of arbitration may not refer any of the matters in dispute back to the parties to be bargained, except in circumstances where no decision has been issued and both parties agree, or if the issue is related to the implementation of an interest arbitration award.
If passed, the FPPA amendments, which are outlined in Schedule 9, would come into force on the day Bill 70 receives Royal Assent. The Bill includes transition provisions that allow for the continuation of the conciliation process in circumstances where this process has already commenced at the time the Bill comes into force.
Major Changes Still Needed
While Bill 70 provides for some changes to an interest arbitration system that has been largely unchanged since the FPPA came into force in 1997 – in fact, the interest arbitration provisions have not been subject to even minor modification for 10 years – the proposed changes can be described as “incremental,” at best. These are not the major changes that the Association of Municipalities of Ontario (AMO) or the Emergency Services Steering Committee (ESSC) have been advocating for on behalf of municipalities for years that would assist municipalities in managing the ever-increasing costs of their fire services.
Nevertheless, for municipalities that have been waiting for system change, any change that alleviates at least some of the frustration tied to the interest arbitration process is helpful. From a practical perspective, the effect of these reforms will:
- remove a step in the process
- provide a streamlined, expedited process for selecting an arbitration board
- provide focus on written submissions and legal arguments in advance of the hearing, again to streamline and expedite the hearing process
- ensure that awards will contain final resolutions unless the parties agree to go back to the bargaining table.
Bill 70 passed Second Reading and was referred to the Standing Committee on Finance and Economic Affairs on December 1, 2016. We continue to monitor its progress and will provide you with updates as they are available.
Our Hicks Morley team is well-positioned to provide your bargaining team and leadership with the tools and strategies that will help your organization navigate the fire interest arbitration process and achieve your labour relations objectives as economically as possible. If you would like our assistance please contact Mark Mason, Michael Kennedy, John Saunders, Stephanie Jeronimo or Julia Nanos. We also recommend that you speak to members of the ESSC or AMO to understand the work that they have been doing in these areas and to see how you can get involved.
The article in this Client Update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©