IN THE MATTER OF AN INTEREST ARBITRATION PURSUANT TO THE FIRE PROTECTION AND PREVENTION ACT, 1997

BETWEEN

THE CORPORATION OF THE CITY OF WELLAND

(the “City” or “Welland”)

and

WELLAND PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION LOCAL 481, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS

(the “Association”)

SOLE ARBITRATOR: John Stout

APPEARANCES:

FOR THE CITY: Michael J. Kennedy – Hicks Morley Jessica M. Toldo – Hicks Morley Andrea Daisley – Manager Human Resources Brian Kennedy – Fire Chief Adam Eckhart – Deputy Fire Chief

FOR THE ASSOCIATION: Jeffrey Sack Q.C. – Counsel Carmen Santoro – Advocate, IAFF/OPFFA Mark Biggins – President, WPFFA Local 481 Joel Myers – Vice President, WPFFA. Local 481 Tim McLeod – Secretary, WPFFA, Local 481 Dan Vanderlillie – OPFFA, Div. #4

MEDIATION HELD JANUARY 17, 2020 HEARING HELD FEBRUARY 20, 2020 POST HEARING WRITTEN SUBMISSIONS MARCH 6, 13 and 30, 2020 BACKGROUND

[1] I was appointed by the parties pursuant to the Fire Protection and Prevention Act, 1997, SO 1997, c.4 as amended (“FPPA”), to resolve the outstanding issues between the Corporation of the City of Welland (the “City” or “Welland”) and the Welland Professional Fire Fighters Association (the “Association”) with respect to a renewal collective agreement.

[2] Based on the most recent census, Welland has a population of approximately 52,293. The City is located in the Regional Municipality of Niagara (Niagara Region), which includes the Town of Fort Erie, The Town of Niagara-on- the-Lake, the City of Niagara Falls, the City of St. Catharines and the City of Thorold.

[3] In addition to the firefighter bargaining unit, the City has collective agreements with the following employee groups:

Union Bargaining Unit members ATU 52 CUPE 83 UNIFOR 90

[4] The City’s Fire and Emergency Services (the “Department”) is a composite fire department. The Department has five (5) stations. The Department is made up of fifty four (54) full-time fire Fighters and approximately sixty-five (65) part-time fire Fighters. The full-time fire fighters work out three (3) fire stations that maintain a minimum staffing of eight (8) fire fighters per platoon. The Association represents forty eight (48) members employed in the Suppression Division, four (4) members employed in the Fire Prevention Division and two (2) members in the Training Division of the Welland Department.

2 [5] The most recent collective agreement expired on December 31, 2018. The parties exchanged proposals on May 14, 2019. The parties met to bargain in May 2019. The matter was referred to arbitration on November 1, 2019. The parties agree that I was properly appointed and there is no dispute with respect to my jurisdiction to hear and adjudicate upon the issues remaining in dispute.

[6] The parties filed extensive written briefs presenting their positions on the issues remaining in dispute. Mediation occurred on January 17, 2020. The hearing was held on February 20, 2020 at which time the parties made oral submissions to supplement their written briefs. The parties agreed at the hearing to provide additional written post-hearing submissions. Those additional submissions were received on March 6, 13 and 30, 2020.

STATUTORY CRITERIA AND CONSIDERATIONS

[7] I am guided by the legislative criteria set out in the FPPA, which requires me to take into consideration all factors that I consider relevant, including the following:

• A comparison, as between the employees and other employees in the public and private sectors, of the terms and conditions of employment.

• A comparison of collective bargaining settlements reached in the same municipality and in comparable municipalities, including those reached by employees in bargaining units to which the Labour Relations Act, 1995 applies, having regard to the relative economic health of the municipalities.

• The economic health of Ontario and the municipality, including, but not limited to, changes to labour market characteristics, property tax characteristics and socio-economic characteristics. The employer’s ability to pay, in light of its fiscal situation.

• The employer’s ability to attract and retain qualified firefighters.

• The intertest and welfare of the community served by the fire department.

• Any local factors affecting the community.

3 [8] In addition to the FPPA criteria, I have taken into account all the usual and relevant considerations that apply to interest arbitration, including the well- accepted principles of comparability, demonstrated need, total compensation and most significantly replication.

[9] The neighbouring fire services in the municipalities of Niagara Falls, Thorold and St. Catharines are traditional regional comparators, see Welland Professional Fire Fighters Association Local 481, International Association of Fire Fighters and Corporation of the City of Welland, unreported January 15, 2015 (Steinberg). The Niagara Regional Police service is also a relevant historical comparator.

[10] I have paid particular attention to the local comparators, but I have also considered the provincial landscape and what may be seen as normative in the Ontario fire sector, while keeping mind the concept of total compensation.

[11] The parties did not specifically agree to a term for the renewal collective agreement, although both presented proposals for the period between January 1, 2019 and December 31, 2023. In addition, I note that both Niagara Falls and St. Catharines have collective agreements in place until December 31, 2023. Therefore, I find it appropriate that the term of the renewal collective agreement shall be for a five year period from January 1, 2019 until December 31, 2023.

[12] In regard to wages, I have mirrored those provided to firefighters in Niagara Falls and St. Catharines. That is not to say that I am of the view that the salaries in Welland ought to always be tied to the salaries in these two municipalities. Rather, having regard to the historical relationship between all the regional comparators, I am of the view that these parties would have settled for wage increases similar to those that have already been established. The same can be said for many of the benefit enhancements that I have awarded.

4 [13] In terms of the other items in dispute, I first note that the parties had significant proposals to change the uniform language. In my view, additional information is required in order to resolve the uniform language dispute. I have awarded a five year collective agreement and it would not make sense to defer this dispute until the next round of bargaining. Clearly, both parties are dissatisfied with the status quo and I would be remiss not to resolve the issue. Therefore, I am ordering the parties to strike a committee to review and compile additional information for me. I am also hopeful that the parties may either resolve the dispute or at least focus the dispute more narrowly through this process. I will address the issue once I review the committee’s report. The parties will also be provided with an opportunity to provide additional submissions, if necessary, relating to the report.

[14] I have also attempted to craft a number of trade-offs that I believe are reflective of what the parties might have been able to agree upon if left to their own devices. I note one specific trade-off for comment; the Health Care Spending Account (HCSA). While the regional comparators do not have this benefit, the Niagara Regional Police Association freely negotiated a HCSA many years ago. There is also a recent trend of fire services including this benefit in their collective agreements, see The Corporation of the City of Thunder Bay and Thunder Bay Professional Fire Fighters’ Association, unreported, February 14, 2020 award. I am awarding a HCSA, but effective in the last year of the renewal collective agreement, which will mean that there is no cost impact. I am also awarding the proposal to add a fourth class Firefighter and a lower Probation rate in the last year of the renewal collective agreement, which will result in additional savings.

[15] I have amended the AD&D benefit plan death insurance benefit by adding language that was awarded by Arbitrator Parmar in Corporation of Municipality of Clarington v. Clarington Fire Fighters’ Association, IAFF Local 3139, 2019 CanLII 91554 (ON LA).

5 [16] I have also awarded the Association’s proposal for a new “on-call” payment, although with some slight language modification. The language modification is to make it clear that by awarding this proposal I have in no way curtailed or limited management’s right to determine whether or not they require any employee to be on-call. In other words, management is free to determine their needs and if they do not require any employee to be on-call, then they will not be required to pay the on-call amount.

[17] The last issue I wish to address is the Association’s proposal to change the benefits language in article 9.08 by deleting “subject to the provisions of the plans” and adding language that the City provide benefits at equal or greater to the benefit as described in Green Shield Canada (GSC) “My Benefit Plan, January 1, 2019, Billing Division 16230, Fire Fighters, City of Welland.” The Association also seeks additional language indicating that “there shall be no provision, reference or a requirement for prior-authorization, drug review or approval of any prescribed drugs.”

[18] The Association asserts that the City has unilaterally imposed a prescription drug review (prior-authorization) without the Association’s knowledge, concurrence or any consultation. The Association submits that they only became aware of the changes to the Benefit Plan after negotiations concluded.

[19] The City submits that it would be inappropriate, and I have no jurisdiction to entertain this late proposal because it was raised after bargaining had concluded. The City relies on the award of Arbitrator Swan in The Regional Municipality of Peel and ONA, unreported April 30, 1985 and the award of Arbitrator Burkett in Ontario Cancer Institute (Princess Margaret Hospital) and ONA, unreported June 19, 1989.

[20] The Association acknowledges that their proposal comes late in the game. However, they take the position that the City made the changes to the Benefit Plan without telling the Association. The Association asserts that it would be wrong to

6 refuse to entertain a proposal in these circumstances where the City has played “hide and seek” with benefit changes.

[21] Essentially, the City’s position is really in relation to the Association’s proposal not being a matter in dispute because it was not brought up in bargaining. The City’s position is supported by two interest arbitration awards under the Hospital Labour Disputes Arbitration Act (HLDAA) issued by two of Ontario’s most prominent and distinguished arbitrators. I have carefully read the awards and I agree with the reasoning found in both awards. The integrity of the bargaining process is essential and crucial to maintaining sound labour relations. The parties have a statutory duty to bargain in good faith and they cannot engage in surface bargaining or go through the motions, only to then raise new issues at interest arbitration. A party raising a new issue at interest arbitration cannot automatically expect an arbitrator to entertain the new issue and make an award on a proposal that was never discussed in bargaining.

[22] Interest arbitration is designed to replace the right to strike and lock out with a dispute resolution process that has the primary goal of replicating what would be achieved in free collective bargaining. In this regard, interest arbitration is an extension of the bargaining process. In free collective bargaining it has been held that, absent compelling reasons, altering one’s proposals or tabling new demands late in bargaining can constitute a failure to bargain in good faith. This same principle applies to the interest arbitration process.

[23] Both Arbitrator Swan and Arbitrator Burkett recognized that because the interest arbitration process is an extension of bargaining the same principles must be applied to protect the integrity of the process. They found, based on the good faith bargaining provision contained in the Labour Relations Act, (currently the Labour Relations Act 1995) read together with the provisions of HLDAA, that new proposals should not be entertained for the first-time at interest arbitration unless there exists compelling justification in the form of a material change in circumstances during the course of bargaining.

7 [24] The same principle applies to an interest arbitration under the FPPA and the exception lies in the arbitrator’s discretion to decide “any other matters that appear to the arbitrator necessary to be decided in order to conclude a collective agreement between the parties,” see s.50.5 (1) of the FPPA. So while normally, new issues will not be entertained at interest arbitration, a narrow exception exists whereby an arbitrator has the discretion to consider further matters that were not originally in dispute. This narrow exception is limited to addressing circumstances that have altered in a material way during the course of bargaining, or to address a new provision that is ancillary to one already in dispute, or a particular new issue that is necessarily incidental to the effective conclusion of a collective agreement, see The Regional Municipality of Peel and ONA, supra.

[25] I would not normally entertain a new proposal that had not been previously discussed during bargaining. However, an alteration of the benefit plan during bargaining without notice to the Association may fall within the exception and may justify entertaining a new proposal

[26] Unfortunately, I do not believe I am in a position to properly address this issue. I have serious concerns about the lack of information I have before me and the fact that the parties never discussed this issue before my appointment. The Association alleges a significant alteration of the Benefit Plan after the collective agreement expired, which was only discovered after bargaining. The City advises that the Benefits Plan is the same plan they have had in place for many years with the same carrier. I have no evidence relating to the Benefit Plan prior to January 1, 2019. I also have no evidence before me as to whether the Union ought to have known about any purported change to the Benefit Plan prior to bargaining. In my view, I need more information to address the issue and I believe the parties ought to have an opportunity to discuss the proposal.

[27] Therefore, I am referring this issue back to the parties to discuss and if they can’t resolve the issue within one-year from the date of this award, then they are to provide me with additional information and submissions. I will then resolve

8 this issue, keeping in mind that I have not yet decided whether the circumstances surrounding this proposal fall within the exception and whether I should exercise my discretion to entertain the new proposal.

[28] Finally, in making my award, I have carefully considered all of the parties’ submissions. Where there is no specific reference to a proposal or issue in the award, the proposal or issue is denied without prejudice to future bargaining. Having regard to the above, I hereby make the following award.

AWARD

[29] The parties directed to enter into a renewal collective agreement for the term from January 1, 2019 to December 31, 2023 that contains all the terms and conditions contained in the predecessor collective agreement that expired December 31, 2018, save and except as amended to incorporate the following:

• All matters previously agreed upon by the parties.

• Wages - First class firefighter annual salaries:

January 1, 2019 – $100,089.00

July 1, 2019 – $101,040.00

January 1, 2020 - $102,050.00

July 1, 2020 - $102,917.00

January 1, 2021 - $103,946.00

July 1, 2021 - $104,830.00

January 1, 2022 - $105,878.00

July 1, 2022 - $106,619.00

January 1, 2023 - $107, 685.00

July 1, 2023 - $108, 331.00

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• All other classifications are to be adjusted by the same percentage increases on the same effective dates.

• Salary increases to be paid retroactive to all bargaining unit employees who have been employed in the period January 1, 2019 to the date of implementation of the salary increases. Employees who have left the employ of the City are to be notified in writing at the address on file within 30 days of the date of this Award and are to respond within a further period of 30 days. Payment is to be made within 90 days of the date of this Award.

• Effective January 1, 2023, add a new fourth class rate of 70% and amend the Probationer rate to be 65%.

• Health Care Spending Account (HCSA): Effective January 1, 2023, provide an annual “Post 65 HCSA” of $3,250.00 for retirees between the ages of 65 and 75 who retire on or after January 1, 2023, with the following conditions:

o The HCSA will be applicable to the eligible retired employees and spouses only to a combined maximum of $3,250.00 per year.

o Those eligible for the HCSA must be qualified to receive an unreduced pension at the time of retirement in accordance with the terms established by OMERS and thereafter be in receipt on an unreduced pension.

o Claims for reimbursement must be made first through the Ontario Health Insurance Plan (OHIP), the Ontario Drug Plan (ODP) or other public or provincial insurance as may be applicable. Reimbursement will be provided for medical or dental expenses to the extent that these expenses exceed coverage available from OHIP, ODP or other applicable public insurance plan and are permitted by the Canada Revenue Agency (CRA).

o The HCSA will be non-cumulative. There is no redeemable cash value. In the event that the eligible retired employee (and spouse when applicable) does not exhaust the maximum entitlement for the year, the balance cannot be carried over to the next year.

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o There are no survivor benefits.

• Article 7- Hours of Work (on-call): Add a new article to provide the following: “Employees of the Fire Prevention Division, who are required to be part of an on-call rotation, shall be paid seven (7) hours per week for being on-call. Should an employee of the Fire Prevention Division be called in, they shall be compensated in accordance with Articles 7.04(c) and 7.05 (run by both).

• Article 9 – Accidents and Sickness: Amend Article 9.01 to include the following: (c) An employee absent on Workers’ Compensation when his/her scheduled vacation arrives and who is unable to re-schedule his/her vacation in the vacation year because of operational requirements of the Fire department, shall take his/her vacation in pay.

• Article 9.08 – Benefits language: This issue is referred back to the parties to discuss and provide me with additional information. If the issue is not resolved within a year of the date of this award, then the parties are directed to provide me with the additional information and written submissions. Reply submissions may be filed within a reasonable time thereafter. I shall then resolve all outstanding issues relating to the Association’s new benefit language proposal.

• Article 9.13 – LODD Survivor Family Benefits: Amend Article 9.13 to provide, “In the event that a Firefighter dies in the line of duty, his/her widow(er) and eligible dependents will receive benefits until the Firefighter would have reached age 65 or the widow(er) remarries, whichever occurs first. To be clear, dependents also will no longer receive benefits if they are no longer eligible.”

• Article 11 – On-Shift Training Instructors pay: Amend effective date of this award to provide “Shift Training Instructors delivering training as prescribed by the Training Division to be compensated at 107% for instructional and preparation time as requested and approved.

• Article 13.01 - Association Leave: Amend the article to remove the “Conventions or Seminars” limitation for Association leave.

11 • Article 15 – Uniforms: The parties are directed to establish a Uniform Committee as soon as practicable to review the Uniform article provisions and provide me with additional information, including but not limited to the use of points, points allotment, and list of items required of employees. The Uniform Committee is to submit a report to me within one year of the date of this Award providing me with the additional information and Committee’s recommendations. If the report does not provide unanimous recommendations, then the parties may submit written submissions at the same time as they submit the report. Reply submissions may be filed within a reasonable time thereafter. I shall then resolve all outstanding issues relating to the uniform proposals.

• Article 16.01 – AD&D/LODD as recognized by the WSIB: The existing AD&D benefit plan will be supplemented with a death insurance benefit equal to two times (2X) the employees’ annual salary payable in the event of a line of duty death due to occupational accident or disease as determined by the Workplace Safety and Insurance Board.

There shall be no duplication of entitlement under the existing AD&D coverage.

• Drivers Licence MTO Medical and Fees: Effective the date of this award, incorporate a clause requiring the City to reimburse an employee up to $100.00 to cover the cost of a medical exam necessary to obtain or maintain a DZ licence. The employee will be required to provide evidence of payment to be eligible for reimbursement.

• Benefits – Amend the Benefit Plan to provide the following increases:

o Vision care: Effective date of award - $425.00 January 1, 2021 - $450.00 January 1, 2022 -$475.00 January 1, 2023 - $500.00

o Psychological services: January 1, 2021- $2,500.00 January 1, 2023 - $3,000.00

12 o Physiotherapy, Massage, Chiropractic, Osteopath, Naturopath, Speech: Effective date of award - $600.00 January 1, 2021 - $650.00 January 1, 2022 - $700.00 January 1, 2023 - $750.00

o Hearing Aids: Effective date of award increase to $2,500.00 every five years per employee and eligible dependent.

[30] Unless specifically addressed in this award, all outstanding proposals are dismissed.

[31] I remain seized until such time as the parties have signed a new collective agreement.

Dated at Toronto, Ontario this 13th day of May 2020.

John Stout – Arbitrator

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