Employment and Labour Law Blog: Fire Bargaining - New Legislation in Ontario - What makes sense?


The next round of labour negotiations in the municipal fire sector in Ontario has begun.  The agreements run on calendar years.  These activities will be the first under the new labour disputes changes legislated by the Ford government late last year.  Both parties need to decide soon whether or not the new rules will alter the way they wish to approach the table. 

Many assert the amendments were made to address long-standing employer complaints about the process and its delays.  However, the primary change was the elimination of nominees on the Arbitration board leaving only a single independent arbitrator to hear and decide issues.  For years, the Association has appointed the same nominee in every case and it was believed he was able to affect the timing of awards and effectively influence the provincial scene.  Employers, by contrast, used several nominees who would not have had access to as much insight into the issues in other cases across the province. 

It was widely complained that the decision-making system involving three-person boards was much too slow.  In some cases, awards did not issue until many months after the formal hearing.  The Arbitrators always indicated timing was driven by the nominees.  Now, this issue is gone.  The single Arbitrator will not need to consult others about hearing dates. She will not need to consult others about draft decisions.  She cannot be influenced by nominees. 

The award can be written once and simply delivered to the parties. Easy. 

Other amendments will require written submissions in advance of the hearing. No more surprise briefs at the hearing or requests to file reply briefs on another day, thus causing delays.  The Arbitrator will decide the protocol unless the parties agree otherwise.  The Arbitrator also has the power to prohibit post hearing submissions, something which happened often in the past, and caused more delays.

Whenever a new decision was issued elsewhere, one party or the other wanted to place it in front of the Board.  Sometimes a nominee would simply provide it to the Chair and if the other nominee did not object, the case was considered without the parties having an opportunity to make submissions.  Or, the parties would be able to submit and took the time to do so, causing more delay. This problem will now be controlled by the single Arbitrator.  

The criteria for arbitral decision making are altered.  The question for the parties is whether or not they want to assert that the considerations used for the last 50 years are no longer relevant and should be radically re-assessed.  Unless this position is taken, the impact of the changes will be modest and related to special circumstances.  

But, whatever the approach of the parties, either can insist the single Arbitrator give reasons for each submission respecting the criteria and about each demand on the table. Often in the past, arbitration awards would concentrate on the actual changes rather than providing reasons. New awards may be different.  It is for the parties to decide how aggressively they wish to insist on reasons. 

The time lines for decision-making by the single Arbitrator are very short by contrast to past history.  Within 90 days after the original appointment date, the decision must be delivered with appropriate reasons.   Delays must be agreed upon by the parties and monitored by the Ministry. Results of arbitrations should come faster.

All these opportunities to affect the arbitral system differently than before, beg the question, how will the parties use the legislation to improve their labour relations.  Successful bargaining is not about the speed with which deals are done.  It is about the mutual satisfaction of the parties. Dispute resolution is not always about the reasons why a particular decision has been made, but about the willingness of the parties to accept whatever is the result. 

In the past, many parties and all the nominees would assert that the role of nominee was to advocate on the Board and to provide the Chair will sober second thoughts about the implications of the various demands. All issues are not about mathematics and comparative data analysis.  Many important problems at the table involve complex specialized matters related to the industry.  Experienced nominees help arbitrators make more informed and better decisions. No one will be there to help now. 

So, the parties must decide if they are willing to risk letting decisions about their labour relations be decided by an independent person with little if any training in fire department practices and no close affiliation to either of the parties or their long-term interests.  Each decision by a party to proceed to interest arbitration in the future will involve a decision about the degree of risk involved.  For employers, one must wonder whether the risks of bad decision-making are likely to fall more on them, as employer.  Union advocates might argue they have nothing to lose.  

These kinds of considerations should be embroiling the preparations of both sides for 2019 negotiations.  Getting to arbitration faster and securing a final decision more expeditiously may not be worth the risk.  Building a better relationship with the other party makes more sense.