By KAREN BEST
Ontario safety board had designated unionized volunteers as part-timers
By KAREN BEST
Last year, in a tangled web of policy and law, 800 Ontario volunteer fire fighters who belonged to unions, saw their workers’ compensation coverage shrink and then return to its original status.
Before Christmas, and after pressure from a union and the Ontario Office of the Fire Marshal, Ontario’s Workplace Safety and Insurance Board (WSIB) amended a policy that temporarily categorized unionized volunteer fire fighters as part-time fire fighters. As such, they were only entitled to compensation based on remuneration as volunteers.
The problematic policy came into effect in June 2005, retroactive to January 2005. In January 2006, a revised policy reinstated appropriate coverage to volunteers retroactive to the beginning of last year.
Amid the red tape, at least one Ontario volunteer fire fighter, who belonged to a union, suffered one more blow. This one was to his wallet. During a call in the spring, he was seriously injured resulting in permanent disability. Originally his compensation was based on $67,000, the maximum coverage permitted for volunteer fire fighters under WSIB policies. In June, the new policy reclassified him as part-time and his coverage was calculated on 85 per cent of his volunteer fire fighter remuneration of $2,000.
Since the policy was revised, he will get the money he is entitled to, said Ian DeWaard, the regional director of the Christian Labour Association of Canada (CLAC). He learned about the policy change in July.
Fire chiefs with volunteer fire fighter unions did not receive information bulletins about the change. It was discovered by chance.
While one fire chief was completing his annual administrative duty of reporting the number of volunteers to WSIB, he happened to click into the policy section on volunteer fire fighter definitions. “I got quite a surprise,” said Norfolk County Fire Chief Denys Prevost.
According to the new policy, fire fighters were part-time or full-time, if they can be represented by or are represented by a bargaining unit under a ruling from the Labour Relations Act (LRA) or the Fire Protection and Prevention Act (FPPA). Thirty of Prevost’s 240 fire fighters are members of the International Association of Machinists and Aerospace Workers. He wanted the issue resolved as soon as possible because he was in the midst of the first contract negotiations with the union. The new policy had the potential to complete change the focus and result of what the two parties were doing, he said.
Along with muddying the waters for contracts, the new policy suddenly made belonging to a union and volunteering as a fire fighter a lot riskier. For municipalities, the change increased premium costs. Municipalities pay 10 per cent of the WSIB premium for volunteer fire fighters, a discount intended to make them more affordable, noted Prevost.
He wondered if the policy change would also impact Workplace Safety and Insurance Act provisions that require the regular employer to accommodate the injured volunteer fire fighter. If it did, accommodating an injured union member in the department would become the municipality’s responsibility.
Other WSIA provisions could also be impacted with the new classification. The Act guarantees job security in volunteer fire fighter’s regular jobs. WSIB policies permit municipalities to select the coverage level of volunteers up to the maximum amount. This affords volunteer fire fighters with income security if injured. It is also recognition of inherent risks in the job and aids in recruitment and retention of volunteers in small communities.
The WSIB administers the WSIA and sets policies that have stature similar to a regulation.
After recognizing the scope of the policy’s impact, Prevost alerted other fire chiefs with unionized volunteers. There are eight Ontario volunteer fire departments with bargaining units. After Norfolk County’s attempt to approach WSIB through lawyers was shut down, Prevost asked the Ontario Association of Fire Chiefs to consider establishing a position on the policy change.
Prevost also alerted the OAFC and OFM about other policies that could limit coverage for all of Ontario’s 18,000 volunteer fire fighters. One policy section granted coverage for Fire College activities and fire drills that are mandatory. Travel to training is only covered if the employer provides transportation. Many volunteers travel in their own cars and some use them to carry air bottles and firehose to incidents, noted Prevost.
In a section defining who a volunteer is working for, a policy states that volunteers who respond at their regular place of work are not covered through the municipality for compensation. This could impact fire, rescue or medical response while at work or when responding to the place of work.
In the case of a municipal employee who is a volunteer, coverage when injured in a municipal building or even on a municipal road could be affected, noted Prevost. These policies remained unchanged after the part-time/union issue was corrected.
When DeWaard learned about this policy, he contacted the WSIB revenue policy department to explain the implications of the new definition. It inadvertently excluded 800 volunteer fire fighters from the special premium, he said in an interview for Fire Fighting in Canada. He sent a 10-page written response to the board.
“All of a sudden, people are being treated differently because they are associated with a trade union,” he said. CLAC represents 550 volunteer fire fighters who work in Belleville, Quinte West and Hamilton.
As far as DeWaard is concerned, the change denied freedom of association, a fundamental freedom in the Canadian Charter of Rights and Freedom.
DeWaard also spoke of the issue in a labour relations context. Part IX of the FPPA excludes volunteers from bargaining units. This section states that full- and part-time fire fighters working for a department are a bargaining unit. Because of this, volunteer fire fighters have access to the Ontario Labour Relations Act, he continued. This interpretation was endorsed by the Ontario Labour Relations Board in 2002.
Despite an argument from the City of Hamilton, which wanted volunteers to belong to the Ontario Professional Fire Fighters Association as part-time fire fighters, labour board member Laura Trachuk referred to the FFPA and income tax law in her decision in 2002. Federal law states that fire fighters, who are not regularly employed by the municipality, do not pay employment insurance and Canada pension plan premiums. Unlike full-time fire fighters, volunteer fire fighters are regularly employed in other jobs and work as available fire fighters in their municipality, noted the board member.
She ruled that Hamilton fire fighters were a bargaining unit and were volunteers.
In 2001 and 2002, the WSIB and the OFM began discussions on policy definition changes for volunteer fire fighters. Those discussions occurred before the Hamilton decision and were suspended until last year.
Ted Bryan of the OAFC volunteer committee gathered input from members to forward to Ontario Fire Marshal Bernie Moyle who was reviewing the policy last fall. The fire marshal did a great job in satisfying all the different players, he said. Bryan is the Fire Chief of the Township of Otonabee-South Monaghan.
Once Moyle was aware of the policy change, he contacted WSIB and then worked with their policy officials to rectify the error, said his executive assistant Tony Pacheco. The fire marshal and the OAFC worked with the board on the first policy but neither party picked up on the definition of unionized volunteers as part-time employees, Pacheco continued. In December 2005, the policy was rewritten.
Before Christmas, DeWaard received confirmation that a revised policy will ensure that unionized volunteers will be eligible for the special premium. “We’re pretty happy that WSIB has heard our concerns and has seen fit to bring unionized volunteers back into the fold,” he said. “They were willing to listen and make a change.”
By very specific language, new definitions make it clear who is an employee and who is a volunteer. WSIB will consider fire fighters as full- or part-time if they are salaried municipal workers who are regularly employed as fire fighters. As such they are required to respond to all calls on their shifts and may organize under Part IX of the FPPA.
The criteria for the WSIB volunteer classification is in line with federal tax law, the FFPA and the Ontario labour relations board decision on Hamilton volunteers. In the revised WSIB policy, volunteer fire fighters provide service voluntarily or for a nominal consideration, an honorarium or a training and activity allowance. They are not regularly employed as fire fighters and are not required to respond to every call. As volunteers, they are excluded from the definition of fire fighter in the FPPA and can be represented by a bargaining agent certified under the Labour Relations Act.