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Ajax firefighters awarded 24-hour shift trial

April 5, 2013, Toronto – A provincial arbitrator has awarded firefighters in Ajax, Ont., a two-year trial of the 24-hour shift despite vehement opposition by management to the proposed shift change made clear during six days of arbitration hearings in June 2011.

Arbitrator Brian Etherington said in his decision released to the union and management on Thursday, and obtained by Fire Fighting in Canada, that he rejected the argument that management has the presumptive right to determine hours of work.

“The suggestion that hours of work are somehow different from issues such as compensation when it comes to the interest arbitration process and the criteria used to assess and decide on the parties’ proposals on such issues, is also belied by the fact that there are current provisions in collective agreements dealing with hours of work and shift schedules,” Etherington said.

Etherington also said in his decision that the employer did not establish that the 24-hour shift presents greater health and safety risks to firefighters than the 10-14 shift. That finding was built on earlier arbitration awards of the 24-hour shift to firefighters in Airdrie, Alta., and Cambridge, Ont.

Essentially, arbitration hearings on the 24-hour shift to this point have pitted arguments by Dr. Steven Lockley of the division of sleep medicine at Harvard – for the management side – against research by Linda Glazner, who has studied circadian rhythms. Neither had done research specifically on the impact of the 24-hour shift on firefighters.

Etherington also said he discounted the employer’s concerns about the 24-hour shift and its impact on firefighter health and safety because there have been no significant issues raised by the Ontario departments that have run the 24-hour shift for years or have conducted two-year trials.

“Basic logic would lead one to believe that, if there were negative effects of the type suggested by the employer, both in terms of health and safety and operational needs, statistics and evidence would have been gathered on those negative effects during these trial periods in numerous municipalities,” he said.

The employer’s written dissent of the ruling says that Etherington has failed to give proper consideration to the employer’s mandate under the Fire Protection and Prevention Act, and that other arbitrators have held that scheduling of work is a management right.

“It is clear from the comments of the chair in this award . . . that his decision has been significantly influenced by previous interest arbitration awards ordering trial periods and negotiated settlements adopting 24-hour shifts schedules on a trial or permanent basis,” says employer representative Michael Riddell.

Riddell also says that Etherington has referenced the fact that 73 per cent of firefighters in Ontario work the 24-hour shift, but notes that the percentage is skewed by the fact that it includes Toronto’s more than 3,000 firefighters.

If the Toronto number were removed from the Ontario statistics, Riddell, says, the percentage would drop to 43 per cent, which, he says is not “normative and persuasive.”

“Across Canada, the overall percentage is less than 40 per cent of full-time firefighters working 24-hour shifts,” Riddell says. “And when Toronto is removed the number drops to less than 25 per cent, or [fewer] than one in four firefighters. This is hardly compelling support.”

Etherington also rejects the argument by the employer about the illegality of the 24-hour shift. The arbitrator noted that legislation in Ontario and other provinces allows for 24-hour shifts for firefighters, and that lawmakers could easily enact legislation to prohibit workers from agreeing to 24-hour shifts.

“The fact that [government] has chosen not to do so, and, in fact, has expressly recognized the 24-hour shift in the Fire Protection and Prevention Act, suggests that the government does not agree with the employer on the hazards of the shift,” Etherington says.

The arbitrator says he believes the firefighters association made a persuasive argument for the inclusion of an order that the 24-hour shift be implement for a trial period.

Etherington recommends that the union and management create a committee to shape the terms of the trial period, and find a way to study the operation of the shift to determine how it compares to the 10-14 shift in terms of health and safety, work-life balance, employee preference, and operational concerns such as absenteeism, overtime, training and cost.

The arbitrator notes that the trial does not pre-determine whether the 24-hour shift will work permanently.

“We encourage the parties to attempt to put into place monitoring and assessment mechanisms which will enable them to determine the effects, both positive and negative, and enable those effects to be evaluated based on agreed-upon benchmarks.”

Etherington said the trial period is a reasonable compromise given the strong disagreements between union and management and the trend in arbitration awards and negotiated agreements on the 24-hour shift.

The arbitration ruling also deals with officer differentials, wage increases and benefits.