04/19/2011

The provincial government today introduced legislation to amend the Fire Protection and Prevention Act (FPPA).
If passed, will:

i) impose a duty of fair representation on bargaining agents for firefighters and as such sets out that the process for enforcing the duty and enabling complaints is to be addressed through the Labour Relations Board, rather than the court system; and 

ii) authorize collective agreements to set age 60 or over as the mandatory retirement for firefighters who are regularly assigned to fire suppression duties and they shall retire at the age specified in their collective agreement, unless their employers can accommodate them without undue hardship.  After two-years from the date of Royal Assent of the Bill, collective agreements that do not contain a mandatory retirement provision or that provide for a mandatory retirement age under 60, these agreements will be deemed to contain a provision requiring retirement at the age of 60. The Bill’s provisions apply despite the Human Rights Code.  Note: The legislation does not affect volunteer firefighters. 

Some Initial Comments from AMO:

While the Bill proposes that complaints about representation will be addressed through the Labour Relations Board, rather than the court system, there are some unique elements about the process for fire fighters. For example, if the Labour Board determines that the bargaining unit has violated their duty of fair representation, the employer can be ordered to reinstate the firefighter with compensation.  It would seem that the municipality holds the liability if the Fire Association has broken the law.

The proposed legislation does not define fire suppression, but hinges on the phrase, “regularly assigned to fire suppression duties”.  Does this include those who do fire suppression training?  Does it include others?  The Bill, as constructed, means that this too is negotiated locally.  It may become a patchwork of different ‘definitional’ approaches across Ontario.  

Setting aside the limited evidence that there is a health and safety risk due to the unique physical and hazardous work of suppression firefighters, the Bill proposes that a municipal employer is to provide accommodation if they do not wish to retire.  While the tests of undue hardship contained in the Bill are those within the Human Rights Code, it appears that only the municipality has a role in the accommodation process and that the Fire Association and the individual firefighter do not.  If passed, it is likely that this provision may provoke additional labour relation issues. 

Given the entry age of firefighters, and if 60 is the retirement age for fire fighters, we should expect to see fire suppression personnel not have their pensionable years by 60 and we should expect pressure to mount for the best three years rather than the current best five years of service.  

Status:

There are a number of fire agreements currently in negotiations and more to come later in the year.  Until the Bill is passed and receives Royal Assent, it is not law.  We will keep members updated on the status of the legislation as it progresses. At this time, we are not certain of the other parties’ support for this Bill in contrast to the original motion (see below) that did receive all party support of members sitting on the day of the vote on the motion.

There was a brief consultation period conducted by the government on this matter with stakeholders.  AMO believes the Bill should be given the opportunity for public comment and that a committee hearing is held after second reading.   

Background:

As reported to you in the March 21, 2011 AMO Breaking News, there was all party support (36-0) received for a private member’s motion regarding firefighter mandatory retirement legislation in the Ontario Legislature on March 10, 2011.  Mike Brown, Liberal MPP for Algoma Manitoulin, proposed the following motion:

That, in the opinion of this House, the Legislative Assembly of Ontario, in recognition of the role Ontario’s firefighters plan every day in keeping our communities safe, and in recognition of the evidence of health and safety risks to firefighters over the age of 60, and in keeping with the recent Human Rights Tribunal decisions, call on the Government to introduce legislation allowing for the mandatory retirement of firefighters who are involved in fire suppression activities in the province of Ontario.

Additional commentary on the proposed legislation can be found here.