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HomeMy WebLinkAbout1987-2156.Union.88-11-22EMPLOYES DE IA co”RoNNE OEL’ONTARIO CQMMISSION DE REGLEMENT DES GRIEFS 180 ou”Lms STilEET WEST. roRoNrQ ONTANO. Am3 12s -sum mm ma RUE 0”mAS OUEST, ToEuNrn lONTARIOJ MSQ 12.9-s”RE4”21w TELEP”ONE/TEL+HONE ,‘lM sss-osea 2156/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor - and - Before: For the Grievor: For the Employer: HEARINGS: The Crown in Right of Ontario (Ministry df Natural Resources) Employer N. V. Dissanayake Vice-Chairperson .I. McManus Member H. Roberts Member Ian Roland COUllSel Gowling & Henderson Barristers & Solicitors Brent Labord Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors.. April 13, 1988 August 8, 1980 August 9, 1988 ,,.I~ ..^. ;.. . “.. ..~ . . . . . _,-:.: ,,_... 2 This is a union grievance which states: The Union grieves that the Ministry of Natural Resources has violated article 13.7.2 by failing to pay overtime to schedule 6 employees assigned to forest fire fighting on "prescribed burns". ., Central to the issue in dispute between the parties is article 13.7.2 of the collective agreement which reads: -13.7.2 Notwithstanding 13.7.1 and Article 19.6. (Holiday Payment), employees who are in :~ classifications assigned to Schedule 6 .and who are assigned to forest 'fire fighting or related duties, shall be paid one and one- half (1 l/2) times the employee's basic hourly rate, to be calculated on the basis of thirty- six and one-quarter (36 l/4) hours per week, for all such work.after eight (8) hours in a 24-hour period. It is agreed between the parties that employees in schedule 6 (under the Public Service Act) are excluded from the overtime provisions of the collective agreement, except as specifically- provided in article 13.7.2. With some exceptions, it is not a regular duty of schedule 6 employees to engage in fire suppression. However the evidence is that from time to time they are used in suppression of wildfires, as well as duties related to prescribed burns. 3 A "prescribed burn" is a deliberate application of fire to a specific area of the forest . "n'ilt'r predetermined conditions. A prescribed burn may be carried out for silvicultural, wildlife, forest management, sanitary or hazard reduction objectives. The evidence is that the majority of prescribed burns have silvicultural objectives, mainly as a means of site preparation for planting. The Ministry agrees that article 13.7.2 requires payment of overtime' when schedule 6 employees are engaged in : fire-suppsession.or~lrelated duties in connect,ion with a .i';..T wildfire: Also, where, a prescribed ~burn exceeds its boundaries and is formally declared a wildfire, schedule 6 employees are paid overtime under article 13.7.2. However, the Ministry has not paid overtime under article 13.7.2 when those employees are used in fire suppression or related duties in connection with a prescribed burn. The nature of the dispute is clear. The Ministry takes the position that when a schedule 6 employee is assigned to duties-* in connection with .a prescribed burn, he or she is not assigned to "forest fire fighting or related duties" within the meaning of article 13.7.2. 4 The bulk of the evidence received by the Board during three days of hearing related to the tasks involved in connection with a prescribed burn and the tasks that are performed in suppressing a wildfire. As noted, prescribed burns are in most cases used for site preparation purposes. Such a process is usually initiated by a client within the government such as a biologist or forest manager. It must be noted that in i additionto~.using prescribed burns, site preparation is also done by other means. That is mechanical site ‘g' preparation,(use of.;equipment such as bulldozers) and ,hC, cbemicali~site .:;.preparation.(spraying of.,.~chemicals) . The evidence is that only about 15: percent. ~of all site .>:preparation is -,done through prescribed burns. Initial planning for a prescribed burn may begin as early as 5 years before the actual burn date. Since the grievance does not relate to the preparation stage, it is not necessary to review that evidence. Suffice it to note that a substantial amount of preparation is involved in a prescribed burn. The burn arsa is defined, and the number of employees, equipment, overtime hours etc. required are estimated and budgeted. The required weather conditions are established and using the weather 5 data available a burn date is established. As part of the plan, boundaries for the burn are established, using natural boundaries such as lakes or rivers if possible. The evidence indicates that based on training and skills, the Employer maintains a roster for each district, of all persons who may be assigned to fire suppression or support service duties. It is frsm this common roster that persons are assigned to duties relating to both.wildfires and prescribed burns. While employees in several classifications in schedule 6 may be.,involved in the planning stages of a prescribed burn, only a- <few classifications ~.are:used..efterthe.ignition of a prescribed burn. These include pilots, biologists, foresters-and /weather technicians. -Among~.these pilots appear to have the most involvement in the suppression aspects of a prescribed burn. The Board heard some evidence relating to a "Pilots' Floater Agreement" and a "Fire Emergency Compensation System” that are in--effect. It is agreed that the former is the subject of a grievance before this Board, and at the time of the hearing in this matter, no decision had been rendered. The Fire Emergency Compensation System applies only in situations declared as an emergency. The Board does not find the 6 evidence relating to either of these of any assistance in determining the issue in this grievance. The Board has carefully examined the evidence relating to the duties and responsibilities involved in suppression of a wildfire on the one hand and the suppression of fire in a prescribed burn on the other. By definition there is a basic difference between a wildfire and a prescribed burn. That is, in the latter ..~the intention is to burn off a pre-determined area of forest. In the former the fire is not deliberately set, -c~.although '.:.the evidence. is that the Employer uses .ghistprical:.. .and , mathematical,. -data to :predict the '_~ .likelihood and the general location..of wildfires. However, there .:gis substantially more planning. involved in a prescribed burn and there is a greater degree of predictability because the fire is ignited under predetermined conditions. Counsel for the Ministry contends that wildfires and prescribed burns are "completel'y different animals". He points out the following differences. (1) The purpose - A wildfire has no useful purpose, while a ~prescribed burn has an intended forest management function. 1 (2) The Ignition - A wildfire is not intentional. A prescribed burn is deliberately set under pre- determined conditions. (3) Duration - A wildfire can last from one day to several months in some cases. A prescribed burn usually lasts a day although smoldering and mopping up may go on for about a week. (4) Size - A wildfire can be a small one or it can involve as much as 25,000 acres of forest. A prescribed burn is usually 200 to 300 acres. (5). Timing - A wildfire can occur at any time and .under any conditions and only limited prediction is ,,.possible~. In contrast, a.prescribed burn. is,planned well in advance and takes place only under:.controlled conditions. (6) Suppression - In .a wildfire there is always suppression activity. In a prescribed burn, suppression is required ~only where the fire exceeds the -established lines or there are fire jumps. Keeping in mind that the Board-is required .here to interpret the words "assigned to forest fire fighting or related duties", in our view the focus must be on .the actual duties of employees in the suppression of a fire. The only comparison that is useful is that between the duties and responsibilities of the employees 8 when assigned to the two types of fire suppression or related duties. Therefore, the distinctions relating to purpose, ignition etc. are not helpful. Quite apart from that, the Board notes that in relation to size and duration, while it is generally true that wildfires are larger than prescribed burns this is not necessarily so. A larger prescribed burn may cover a larger area than a small wildfire. Similarly, a very small wildfire may not take any more time to Put off, than a larger prescribed burn which has significant escapes and jumps. :. : ‘i :;:, r:3 . Mr. Mike Willick, the Assistant Director for Fire .;_ Management for the Ministry testified that the basic difference between a wildfire and a prescribed burn is that "in the latter we are in control. We know how it starts and we know pretty well how the fire will behave". Mr. Willick disagreed with the evidence of the union witnesses that every prescribed burn has at least one or two jumps that must be suppressed. Under cross- examination, Mr. Willick agreed th'at the first task when a wildfire is identified is to establish a control line and that all efforts acre then directed towards prevention of the fire spreading beyond that control line. He .also agreed that every prescribed burn also has a control line, and that the only difference is that 9 in a prescribed burn the control line is established . well in advance. Mr. Willick agreed that once a control line is established, in both wildfires and prescribed burns the suppression activity is directed towards extinguishing the fire beyond the control line. The Ministry characterized the role of a schedule 6 employee in a prescribed burn situation as one of "watching and monitoring" as opposed to active fire fighting. To the extent that suppression of fire is required in a prescribed burn, Counsel submits that that (.: -'pi kind.;' of fire suppression does not come within the ~... .. ..,*- ii ..:. ,+>. meaning of'! "fighting a forest, fire". He submits that ..~ .;,:.:.,. :~,f,-$+&ft;.~.. y.“: ids the.h.Sword I~+ :..~ . . . . ~. .~.~ .,"~ ..( I "fighting" denotes active .and offensive g ..; ._I suppression, as opposed to the monitoring function in a .., p, prescribed burn which he characterizes as "defensive suppressing". He urges the Board to find that article 13.1.2 does not .apply to the latter kind of fire suppression. The Board heard testimony from two schedule 6 employees who have worked as pilots in both prescribed burn and wildfire situations. Their evidence is uncontradicted that once the.prescribed burn is ignited, for all practical purposes, their functions are .,._. ; .~ ~-..... indistinguishable-from their tasks when they are engaged 10 in fighting a- wildfire. The evidence is that they are less active in a prescribed burn, and one witness stated that it is less hectic. Also the fire suppression usually takes longer in a wildfire. The core of their duties, in relation to both wildfires and prescribed burns, is either water-bombing or transportation of crews, equipment and supplies. In the former, they circle the fire in a plane with a load of water and'drop the water when directed to do so by radio. They water- bomb at the time and locatioaas directed. This is the same in the cease of a wildfire and a prescribed burn. +~+~It~is~noteworthy~that when a prescribed burn is .declared ::,I t&be:.: a wadfire, the-pilots are, not-advised-of this. ..,.,* .: ~O&&an infer that they are. snot. so *-;advised,'because the ' changes in the status-of the-fire-makesno, difference to -%the. pilots';duties. ~:!In the duties of transporting of crews, equipment and supplies, the evidence does not indicate any difference between wildfire situations and prescribed burns. The evidence establishes that once the fire in a _v prescribed burn is lit, the duties of the pilots are no different, except in the degree of activity and the length. of time, than their duties in fighting a wildfire. In a prescribed burn a control line is established in advance as part of the plan. The task 11 after ignition takes place is to contain the flames within the control line and prevent it from exceeding that line. One of the first tasks when a wildfire is identified is to establish control lines. The only difference here is that this takes place not in advance but after the fire is discovered. However, once control lines are established, like in a prescribed burn, the objective is to prevent a wildfire from spreading beyond that control line. In both wildfires and prescribed burns,~ escape routes are established. The equipment, procedures and:techniques employed are the same. The involvement of biologists, foresters and weather -technicians in fire ,-suppression is less frequent. However,,~the evidence~,is that.when .they. are involved, their duties are also similar whether the fire is a wildfire or a prescribed burn. There are some differences between the two types cf fires. For example the purpose, size and duration. However, the evidence is tha< overtime hours are inherent in a prescribed burn, although not to the same extent as in a wildfire. The evidence is uncontradicted that from time to time the flames in a prescribed burn exceeds the allowable limits. The prescribed burn is 1% not declared a wildfire.in every such instance. Indeed, the evidence is that there are. disincentives operating against making such declarations. On the basis of the evidence the Board does net see any material difference between the duties ir. a wildfire and the duties involved in a prescribed b,~rn after ignition. As noted earlier, there was conflict as to the extent of actual suppression required in a pres&ibed '~.~burn. .. 'However, in our view that -: 5 4: irrelevant 'to the issue before us. Article 13.7.2 -. provides for overtime pay not for hours spent in ~','. <, ~“.:;~~ght~*g : f o+es t .c, f ire s . .' Overtime- pay----'is.~due..'for hours. "when an employee-is "assigned. to forest fire fighting cr related‘duties".? Surely, an'employee who -is~ monitoring a fire in readiness to go into action if required must come within that term. The employee is on duty in a fire fighting or related role whether or not he is in fact required to go into action. Despite counsel's able submissions, the Board does not accept the distinction .v between offensive and defensive fire suppression. We conclude that an employee performing duties after the ignition of a prescribed burn 1s "assigned to forest 'fire,fighting or related tasks" within the meaning of ",article,:l3;'7':~2,-and .-is -therefore entitled to overt~ime pay as per that article. Therefore, by failing to comply 13 with article 13.7.2 in relation to prescribed burns. the Employer has contravened that article. This grievance is accordingly upheld. In view of our finding, it is not necessary to consider the extrinsic evidence relating to collective bargaining history that was adduced. The Board does not find an ambiguity in article 13.7.2 as would warrant or justify resort to that type of evidence. On the question of remedy, counsel for the Employer .:submits that the only appropriate remedy is a . .: : declaration. Inthe I alternative, counsel submits that ~! ~-if--'the Board is .inclined -to ..award.~..compensation to individual employees, retroactivity should be limited to .‘20 days prior to. September%lO,. 1987, the date of the filing of the grievance. Counsel for the union requests compensation and is content if retroactivity is limited as requested by Employer counsel. The only reason offered for not awarding compensation was that this is &policy grievance and that there may be difficulty in determining the time spent on fire suppression duties by each employee. This is likely to be an on-going difficulty. The parties must attempt -to .devise means-.for.keeping,a record of 14 time spent on fire suppression by each employee for overtime purposes. The Board does not see that as an insurmountable problem in that the parties must cop2 with the same situation when schedule 6 employees are used in wildfires or prescribed burns declared to be wildfires. The Board is not convinced that there is a valid reason not to redress employees who have been denied .overtime pay in contravention of the collective agreement. The fact that this is a union grievance is also no reason to deny compensation. There is no legal reason offered as to why it is inappropriate to award compensation on a union grievance. To do so, would be to::.force.each.,affected employee in the bargaining unit toXfile an individual- grievancey-rathers"than"resort to the~more efficient and expedients means' of filing a $)' policy gr5evance .'~' That is -not -something to be encouraged. The Board hereby directs the Employer to compensate each scheduled 6 employee, who would have been entitled to overtime pay under article 13.7.2 for work performed in relation to prescribed 'burns after ignition. The compensation will be retroactive to twenty days from the date of the filing of this grievance, namely, September 15 10, 1987. The Board remains seized in the event the parties are unable to agree UPOIl the amount of compensation payable. Dated at Hamilton., Ontario this .?T!nd day.o~f Wovember~.,l988. A=-%.5 Nimal V. Dissanayake Vice Chairperson J. McPlanus ..rF5-w , i H. Roberts Member