GSB# 0226/01
UNION# 2000-0727-0001 [01B129]
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Hollstedt)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Natural Resources)
Employer
BEFORE
Barry Fisher
Vice-Chair
FOR THE UNION
Will Presley Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Lisa Compagnone Counsel Management Board Secretariat
HEARING
May 27, 2003.
Decision
This case involves determining the issue as to whether teaching forest fire fighting duties to Ministry employees constitutes “related duties” under Article TEC8.7.2 of the previous Collective Agreement.
The relevant facts are not in dispute and can be listed as follows:
The Grievor is employed as a Fire Training Specialist, classified as a RTS3.
During the relevant time, being during the 2000 fire season, he taught a number of pre-scheduled courses to Ministry employees, in particular the S300 Initial Attack Fire Boss / Sector Boss course. The content of this course is exclusively related to fighting forest fires.
The Grievor is a Schedule 6 employee and as such is not entitled to overtime, except as provided in Article TEC8.7.2
On the days in question, had the Grievor been otherwise entitled to overtime, he would have earned overtime based on the hours worked. In fact the employees that he taught were entitled to overtime, as they were not Schedule 6 employees.
Article TEC8.7.2 reads as follows:
Notwithstanding Article TEC8.7.1 and Article TEC13.7 ( Holiday Payment), employees who are in classifications assigned to Schedule 6 and who are assigned to forest fighting or related duties, shall be paid one and one-half ( 1 ½ ) times the employee’s basic hourly rate, to be calculated on the basis of thirty-six and one-quarter ( 36 ¼ ) hours per week, for all such work after eight ( 8) in a 24-hour period.
The issue thus becomes whether of not teaching fire fighting in a pre-scheduled course is a related duty to fighting forest fires.
The parties were unable to come across any previous cases on this particular point, however two GSB cases were cited.
In Seguin ( 2185/87 ) Vice Chair Wilson outlined the history of this section. It came into the Collective Agreement by means of an interest award of Howard D. Brown dated July 28, 1982. Arbitrator Brown said at pages 16-17 of his award :
We are persuaded that the Union’s submission that Schedule 6 employees assigned to firefighting duties, should be compensated for such work, in like manner, to other employees involved in the same activity.
In Union Grievance ( 2156/87 ) Vice Chair Dissanayake held that this provision applied equally to the suppression of prescribed burns after ignition as well as wildburns. At page 12 of his award he states:
Overtime pay is due for hours when an employee is “assigned to forest fire fighting or 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 between offensive and defensive fire suppression. We conclude that an employee performing duties after the ignition of a prescribed burn is “assigned to forest fire fighting or related tasks” within the meaning of article 13.7.2 and is therefore entitled to overtime pay as per that article.
I find it useful to look at this issue by asking oneself the following question when determining if a duty is related to fire fighting:
If it were not for the existence of a particular fire, would these duties have been performed by the employee?
If the answer is no, then the duty is related to fire fighting. For instance, if one’s duty was to roll up hoses after the fire was extinguished, then one can say that that is a function that would not have been performed but for the prior existence of a fire.
If the answer is yes, then the duty is not related to fire fighting. Thus if the job duty was to check hoses for leaks every month, no matter whether they were used or not, one could say that this is not related to fire fighting because that duty would have been performed whether or not there was a fire.
In this case, applying the above test, it is clear that this course was taught on the days in question without regard to the existence of any particular fire as the dates were scheduled well ahead of time. As such, it cannot be said that the teaching of a pre-scheduled course on fire fighting to fire fighters is a related duty to forest fire fighting within the meaning of Article TEC8.7.2.
Dated at Toronto this 30th of May 2003.