[1999] OLRB REP. NOVEMBER/DECEMBER 986
1253-99-R United Food and Commercial Workers International Union, Local 175, Applicant v. Corporation of the Municipality of Leamington, Responding Party v. Ontario Professional Fire Fighters Association, Intervenor
BEFORE: Caroline Rowan, Vice-Chair and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Kelvin Kucey, Mark Flannigan, George Clifford, Rick Butera and Paul Finley for the applicant; Patrick F Milloy, Brian Sweet and Robert Bradt for the responding party; Henry Watson, Jeff Nester, Wayne DeMille and Marc Leduc for the intervenor.
DECISION OF CAROLINE ROWAN, VICE-CHAIR AND BOARD MEMBER J. A. RONSON; November 5, 1999
The style of cause is hereby amended to reflect the correct name of the responding party: "Corporation of the Municipality of Leamington".
This is an application for certification filed by the United Food and Commercial Workers International Union, Local 175 (the "union") in respect of a bargaining unit of firefighters working for the Corporation of the Municipality of Leamington (the "Municipality") at the Leamington-Mersea Fire Department (the "Department").
ISSUE
There is no dispute regarding the description of the proposed bargaining unit, which includes 4 captains and 18 firefighters (collectively referred to as the "firefighter(s)" for ease of reference). The proposed unit excludes the full-time Fire Chief, full-time Deputy Fire Chief and full-time Training and Public Education Officer. The proposed bargaining unit contains approximately 22 of the current complement of 25 firefighters working at the Department.
The sole issue in this application relates to whether or not the firefighters in the proposed bargaining unit fall within the definition of "firefighter" contained in subsection 4 1(1) of Part IX of the Fire Protection and Prevention Act, 1997 R.S.O. 1997 as amended ("FPPA").
This is relevant because the Labour Relations Act, 1995 (the "Act") does not apply to a "firefighter" within the meaning of subsection 4 1(1) of the FPPA. Subsection 3(e) of the Act states as follows:
This Act does not apply,
(e) except as provided in Part IX of the Fire Protection and Prevention Act, 1997, to a person who is a firefighter within the meaning of subsection 4 1(1) of that Act;
Subsection 4 1(1) of Part IX the FPPA defines "firefighter" as follows:
(1) In this Part,
"firefighter" means a person regularly employed on a salaried basis in a fire department and assigned to fire protection services and includes technicians but does not include a volunteer firefighter. ("pompier")
A "volunteer firefighter" is defined in subsection 1(1) of the FPPA as follows:
"volunteer firefighter" means a firefighter who provides fire protection services either voluntarily or for a nominal consideration, honorarium, training or activity allowance ("pompier voluntaire")
The definition of "firefighter" under subsection 41(1) of the EPPA specifically excludes a "volunteer firefighter" as defined in the FPPA. The question is therefore whether or not the firefighters in the proposed bargaining unit are "volunteer firefighters" within the meaning of the FPPA, as proposed by the applicant, or alternatively, are "firefighters" within the meaning of subsection 41(1), as asserted by the responding party.
If they are "firefighters" within the meaning of subsection 4 1(1), Part IX of the FPPA applies. Under the provisions of that Part, no "firefighter" shall strike and no employer of such firefighters shall lock them out. Instead, Part IX requires mandatory arbitration of the terms of a collective agreement where the conciliation officer appointed has been unable to effect a collective agreement. On the other hand, the responding party does not dispute that if the individuals are "volunteer firefighters", the provisions of the Act apply. As such, the union may be certified to represent these individuals and the provisions of the Act afford them the right to strike in specified circumstances.
The issue, in this case, is therefore of some considerable significance to the residents serviced by the Department. This is further a case of first impression, since the definitions contained in the EPPA were amended in 1997 under Bill 84 and the parties are unaware of any other decisions in which the expanded definitions of "firefighter" and "volunteer firefighter", cited above, have been considered.
For the sake of completeness, the Board also notes that prior to these amendments, the provisions of the former Fire Department's Act, R.S.O. 1990, Chapter F-15 ("FDA") applied. The relevant definitions contained in the FDA read as follows:
1(1) ….
"firefighter" means a person regularly employed in a fire department on a full-time salaried basis and assigned exclusively to fire protection or fire prevention duties, and includes officers and technicians ("pompier professionnel").
"volunteer firefighter" means a person who voluntarily acts as a firefighter for a nomimal consideration or honorarium ("pompier auxilaire") R.S.O. 1980 c. 164, s. 1, (revised)
Thus, under the 1997 amendments, the requirement that a "firefighter" be employed on a full-time basis has been deleted. Part-timers may now presumably fall within the definition of "firefighter" such that the restrictions on the right to strike contained in Part IX can also apply to them. With respect to the definition of "volunteer firefighter", the amendments have also expanded it to include those in receipt of a "training or activity allowance".
FACTS
The facts in this case were not materially in dispute. The employer called evidence from Mr. Robert Bradt, the current Fire Chief employed by the Municipality. The union also called evidence from two firefighters in the proposed bargaining unit, Mr. George Clifford and Mr. Rick Butera. Their evidence is summarized as follows.
Mr. Robert Bradt testified that he has been a firefighter with the Municipality for approximately 33 years and he has been the Fire Chief since November 1, 1998. He explained that the Department provides emergency fire services to the residents of the Town of Leamington and the Township of Mersea, representing approximately 26,000 people over 92 square miles. He also indicated that the Department was established pursuant to a by-law to establish a fire department. The most recent version of the by-law dated September 28, 1992 ("By-Law No. 4062-92") was entered into evidence. By-Law No. 4062-92 contains a definition of "volunteer firefighter" and "full-time firefighter" which mirrors the definitions contained in the former FDA, cited above.
There is no dispute that the firefighters in the proposed bargaining unit are colloquially referred to as "volunteer" firefighters and paid, what is also colloquially referred to as, an "honorarium".
Duties and Responsibilities
Chief Bradt testified that it is a requirement of the position of firefighter that the incumbent live and work within 4 kilometers of the fire hall. It is also a requirement that he/she be able to leave his/her primary job for all full alarm calls and any calls occurring during the individual's scheduled week on duty squad.
If an individual's primary employer refuses to grant him/her permission to leave work to attend a call, then that individual cannot be a firefighter in accordance with the requirements set out in the Municipality's job description. The Department is therefore run in large measure on the good will of the employers in the surrounding area, who in many cases grant permission to their employees to leave work in the event of a call.
Chief Bradt also explained that the Department is divided into four duty squads consisting of one Captain and five firefighters. Firefighters are scheduled on duty squad one week out of four every month. The duty squad schedule is set by the Chief and issued at the beginning of each year. A duty squad week commences at 8:00 a.m. on Monday through to the following Monday at 8:00 a.m. During the week of every month that an individual is scheduled on duty squad, members of the squad are also required to attend at the hall on Wednesday evenings between 7:00 and 9:30 p.m. and on Sunday mornings between 10:00 a.m. and 12:00 p.m. At these times, members of the scheduled duty squad do vehicle maintenance, attend training etc. As of 1999, training is generally provided on Wednesday night during the first hour of the period between 7:00 and 9:30 p.m. There is also general training one evening a month.
The firefighters do not, however, otherwise generally attend at the hall, hut rather simply carry a pager twenty-four hours a day, 365 days a year. The dispatcher advises whether a given call is what is referred to as a "full alarm call" or a "duty squad call". Only those firefighters scheduled on duty squad in a given week are required to respond to "duty squad calls". All of the firefighters are, however, supposed to attend "full alarm calls". "Full alarm calls" occur in specified situations such as in cases of fire in downtown school areas, hospitals, and homes. Examples of "duty squad calls", on the other hand, include grass or dumpster fires or other calls of a minor nature.
Accountability
The parties also called evidence regarding the extent to which the firefighters in the proposed bargaining unit are required to perform the duties assigned, namely, attending to full alarm calls, duty squad calls and Wednesday night and Sunday morning duties.
With respect to duty squad week assignments, an individual assigned is expected to meet his/her obligations during that week unless he/she trades with another firefighter of equal rank. It was Chief Bradt's evidence that such trades are permissible provided that the duty squad Captain is notified in advance. It was Mr. Clifford's evidence, however, that to the best of his knowledge the alleged requirement to advise the duty squad Captain in advance is merely a courtesy. There was no dispute, however, that trading occurs frequently without any significant problems to the Department's operations. Trading is, however, no longer permitted without the Chiefs consent when an individual is scheduled for training.
With respect to full alarm calls, the evidence was that the requirement to attend is less strict. The expectation is that all of the firefighters able to attend will attend a full alarm call. The Department, however, anticipates that a proportion of their full complement of firefighters will not show, since individual firefighters may have important prior conmitments during a given full alarm call, e.g. getting married, etc. It was Mr. Bradt's evidence that, on average, approximately 20 out of a possible full complement of 27 will typically attend full alarm calls. Chief Bradt states that there has never been a problem with chronic absenteeism.
In support of the union's contention that the job requirements are more flexible than those of typical regular part-time employment, Mr. George Clifford, a firefighter with the Department since May of 1989, testified that he was able to continue as a fire-fighter while attending school full-time in Windsor for a period of four and a half years.
In this regard, he indicated that he was a full-time student both at St. Clair College and at the University of Windsor. During the entire four-and-half year period that he attended these schools, he continued working for the Municipality as a firefighter. During this time, he lived in Leamington and went to school full-time during the day. When he was at St. Clair College, he went to school full-time from Monday to Friday. When he was at the University of Windsor, he was in school two or three days a week. Although he lived in Leamington, he was at least 45 minutes away when at school and was therefore out of the range of the pager. As a result, he would not respond to any calls when attending school. He, however, always arranged for coverage during his duty squad week during school hours.
Mr. George Clifford also testified regarding the way in which he currently manages to balance his obligations to his primary employer and to the Municipality. He indicated that he is a full-time employee at Brewers Retail and that that position takes priority over his responsibilities to the Municipality. When he is scheduled on duty squad, he understands that he is expected to respond to all calls when his pager goes off. If he is at work at Brewers Retail when a call comes in, he asks his employer if it is a problem to leave and generally it has not been a problem to do so.
He also testified regarding the way in which he manages his responsibilities to the Municipality during non-working hours. He indicated that his fire fighting responsibilities have a significant impact on his lifestyle since he is required to wear a pager 365 days a year. If he is out socializing and is not scheduled on duty squad, he might have a few drinks. In these circumstances, he will simply turn off his pager and therefore not attend at any full alarm calls that come in at this time. If he is scheduled on duty squad, however, and he has a social engagement in which there might be alcohol, he will arrange to get someone of equal rank to cover for him during that time by trading assignments. In cross-examination, Mr. Clifford conceded that this ability to trade shifts was not, however, unique. In fact, he is also currently entitled to switch shifts at his primary job at Brewers Retail without asking his supervisor for authority to do so.
The union also called evidence from Mr. Rick Butera to suggest that the requirements of the position are more flexible than those of typical part-time employment. Mr. Butera, who is a relatively new member of the Department having two-and-half years service, also testified about how he currently manages his obligations to the Municipality. Mr. Butera's primary source of income comes from running his own business as a restaurant/convenience store operator. He testified that for financial reasons, his business is his first priority.
He further indicated that he experiences difficulties meeting his responsibilities to the Department during his duty squad week if there are calls in the early morning. This is because he opens his restaurant at 5:30 a.m. and has to wait for his wife to come and relieve him at the store/restaurant if a call comes in before other staff personnel arrive at 9:00 a.m. He did not, however, believe that Chief Bradt was aware that he was sometimes late responding to calls that came in during this time.
Chief Bradt was further questioned regarding what he would do if a firefighter did not fulfill his/her responsibilities. Since Chief Bradt's evidence was that he was unaware of any circumstances in which concerns regarding attendance had arisen, the questions were hypothetical in nature. His response, however, was that he would ultimately have to deal with problems concerning a firefighter's failure to meet his/her obligations, such as failing to respond to duty squad calls etc.
In this regard, he noted that he has authority to impose discipline on firefighters pursuant to the terms of By-Law No. 4062-92. Paragraph 5 of By-Law No. 4062-92 reads as follows:
5 .(A) The Chief of the department may reprimand, suspend or recommend dismissal of any member for insubordination, inefficiency, misconduct, tardiness or for noncompliance with any of the provisions of this by-law or general orders and departmental rules, that in the opinion of the Chief, would be detrimental to the discipline and efficiency of the department.
(B) Following the suspension of any member the chief of the department shall report the suspension and his/her recommendations to the C.A.O.
(C) A member shall not be dismissed without being afforded the opportunity for a hearing before the C.A.O., if he/she makes a written request for such hearing within seven days after receiving his/ her proposed dismissal.
Discipline of firefighters of any kind has, however, been relatively rare. One such occurrence was introduced into evidence in the form of a letter of reprimand issued on December 21, 1993. The incident in question related to the failure of a particular firefighter to wear the proper turn out gear when fighting a fire.
Compensation
- Compensation for the services of the firefighters in the proposed bargaining unit consists of monetary payment and certain benefits as detailed below. Effective January 1, 1998, the annual "honorarium" for volunteer firefighters is as follows:
Captain $17,329.00 6-year firefighter 15,588.00 5-year firefighter 13,849.00 4-year firefighter 12,108.00 3-year firefighter 10,064.00 2-year firefighter 8,373.00 1-year firefighter 7,452.00 Cadet 5,149.00
The "honorariums" are paid in equal monthly installments. In accordance with the Municipality's policy, firefighters received the same economic adjustment increase that is awarded to its non-union salaried employees.
The firefighters begin at the position of cadet and are paid at the cadet rate. After a period of one year and upon successful completion of the required training and performance as evaluated by the Chief and Deputy Chief, the cadet moves to the first year firefighter classification and rate. Chief Bradt testified that he was not aware of anyone having been held back in their six-year progression.
The firefighters are also entitled to vacation based on their years of service up to six weeks per year. They are not paid vacation pay as such, but are entitled to time off the regular schedule without any reduction in the amount of their "honorarium".
The firefighters are also entitled to the following benefit coverage. They are covered by Workers' Safety and Insurance Board benefits and by an additional policy relating to firefighters' accident and sickness insurance. The premiums for on-duty coverage are paid entirely by the Municipality. The firefighters are also entitled to opt for additional 24-hour coverage at their own expense.
The firefighters also receive life insurance and pension benefits. The Municipality provides them with a defined contribution pension plan, which has a mandatory enrollment. The firefighters and the Municipality both contribute 6% of the firefighter's honorarium annually towards the plan. The firefighters are further entitled to enroll in other health and welfare benefit plans available to other Municipal employees, provided that the cost of such enrollment is paid for by the firefighters themselves through payroll deduction.
In addition, the Municipality provides a uniform and provides new shoes, if needed, once every three years. The Municipality also remits employment insurance premiums in respect of the firefighters and tax is generally also withheld, unless a firefighter requests otherwise.
The firefighters also appear to be eligible to receive up to $1,000 tax deduction against the income earned from their honorarium. This deductible amount is shown in Box 76 of their T4 slip. An explanatory note from Revenue Canada with respect to this deduction was introduced into evidence and states as follows:
Emergency volunteers - under proposed changes, you may be able to deduct up to $1,000 against the income you received from a Government, Municipality, or public authority for certain volunteer work. This applies if you were a volunteer ambulance technician, firefighter or search rescue or other emergency worker. The deduction applies to the total amount you received from each public body, but it cannot be claimed if you were employed by that body (other than as a volunteer) for the same or other similar duties. The deductible amount is shown in box 76 of your T4 slip.
Although the statutory authority for this deduction was not provided to the Board, there was no dispute between the parties that the deduction is intended to compensate firefighters for miscellaneous out-of-pocket expenses that they may incur in the course of their duties. Examples of such expenses include vehicle costs for attending at calls where an individual misses the fire truck leaving the hall.
Firefighters are not paid any additional compensation to attend at calls, nor are they paid any additional money for attending training or their scheduled maintenance assignments on Wednesday night and Sunday morning during their duty squad week.
The firefighters' compensation was compared to that of full-time firefighters working at the Windsor Fire Department. The current wage settlement for full-time firefighters in Windsor is $58,000 annually (first class rate). This represents approximately four times the rate of pay for the majority of the firefighters in the proposed bargaining unit who are at the six-year rate of $15,588. As the firefighters working for the Municipality only work one week per month, this represents approximately one quarter of the pay for one quarter of the work.
DECISION
It is the applicant's position that the firefighters in the proposed bargaining unit are "volunteer firefighters" and therefore are specifically excluded from the definition of "firefighter" for the purposes of Part IX of the Act. The applicant further submits that the present application is similar to the situation before the Board in The Corporation of the Town of Tecumseh, [1998] OLRB Rep. Jan! Feb 31. In this case, the Board certified a bargaining unit of volunteer firefighters pursuant to the provisions of the Act. The issue in this case was whether or not the firefighters in issue were "volunteers" or "employees" for the purposes of the Act.
The responding party takes the position that the firefighters in issue are not "volunteer firefighters" within the meaning of the FPPA, but rather are "firefighters" within the meaning of subsection 41(1) of the FPPA. The responding party further submits that the decision of the Board in The Corporation of the Town of Tecumseh, cited above, is not particularly helpful since the Board in that case was dealing with a different issue. The question was not whether individuals in the proposed bargaining unit were "volunteer firefighters" as defined under the EPPA, but whether or not they were "volunteers” or "employees" for the purposes of the Act.
Having reviewed the decision in that case, the Board agrees that it is of limited assistance to the determination in this case as it dealt with an entirely different issue. It is perhaps worth noting that the parties in that case had by implication agreed that the firefighters working for the Corporation of the Town of Tecumseh were not "firefighters" covered by Part IX of the EPPA. Such agreement, implicit or otherwise, is however not binding on the Board in future cases. While a comparison of the terms and conditions applicable to the firefighters in The Corporation of the Town of Tecumseh case may be of some interest, it is not in any way determinative of the issue in this case.
In addition, given the relatively recent statutory changes to the definitions in issue, the Board does not place a great deal of weight on the colloquial reference to the firefighters in the proposed bargaining unit as "volunteer" firefighters and to their compensation as "honorariums". These labels appear to have been used since Chief Bradt started working as a firefighter some thirty years ago and consequently can have little bearing on the interpretation of the amended definitions of "firefighter" and "volunteer firefighter" contained in the FPPA pursuant to revisions made in 1997. The Board further notes that the provisions of the former FDA recognize two classes of firefighters: full-time firefighters and volunteer firefighters. There was no provision for a part-time firefighter as such and therefore, by default, if a firefighter was not full-time, he/she was likely to be referred to as a "volunteer".
Similarly, the fact that the definitions set out in the by-law only contemplate there being two classes of firefighters, being a "full-time" firefighter (referred to as "firefighter") and a "volunteer firefighter", is not particularly significant given that the last revision to the by-law was made prior to the 1997 amendments. The definitions contained in this by-law mirror the definitions contained in the FDA in effect at the time. Whether or not By-Law No. 4062-92 should have been amended in light of the legislative changes is not a matter for the Board to decide.
In summary, the Board agrees based on all of the evidence before it that the colloquial reference to "volunteer" and "honorariums" and the definitions contained in By-Law No. 4062-92 are anachronisms resulting from the former definitions contained in the FDA. These references might have had some bearing on a determination of whether the firefighters were "volunteer firefighters" under the former FDA, but are of limited assistance to the Board's determination here relating to the subsequent amended definitions contained in the FPPA.
Pursuant to the 1997 amendments, the legislature has removed the requirement that a "firefighter" for the purposes of Part IX be employed full-time. The question is therefore what group (including potentially part-time firefighters) the legislature intended to include under the new definition of "firefighter" under subsection 41(1) of the FPPA. The answer to this question requires a careful examination of the words used in the statutory definitions.
With the exception of one tax court decision involving "volunteer firefighters" reviewed in detail below, the parties were unable to provide any cases in which the words used in the definitions had been considered. The responding party also therefore referred the Board to dictionary definitions of the relevant words used in the EPPA.
The responding party submits that the firefighters in the proposed bargaining unit fall within the definition of "firefighter" under subsection 4 1(1) of the FPPA as they are persons "regularly employed on a salaried basis" in a fire department and are assigned to fire protection services. In addition, they do not fall under the definition of "volunteer firefighter" under s. 1(1) of the EPPA. In support of its position, the responding party refers to the interpretation of the words "regularly employed" in Whitchurch-Stouffville (Town) v. (Minister of National Revenue - M.N.R. [1993] T.C.J. No. 152 ("Whitchurch"). In this case, the tax court found that the term "regularly employed" used in the exception of insurable employment found in section 14(h) of the Unemployment Insurance Regulations (the "Regulations") means the requirement of a "fixed pattern rather than a fixed period of employment". The required characteristic is the regularity of the work schedule and not the duration of hiring.
In this case, the court was considering the language used in section 14(h) of the Regulations in the context of an appeal from the Minister's decision that the municipality in that case was liable for unemployment insurance premiums in respect of a number of its volunteer firefighters. As with the workers in the present case, all of the firefighters in that case had full-time employment elsewhere. The exception to the obligation to remit premiums under the Regulations reads as follows:
The following employments are excepted from insurable employment:
h) employment of a person for the purpose of a rescue operation, if he is not regularly employed by the employer who employs him for that purpose: and
In determining that the firefighters in that case did fall under the exception under this section, the court relied on the fact that the firefighters in issue were not regularly scheduled in the sense of being "oncall" to respond to calls during certain set periods of time. The firefighters in issue were simply expected to respond over a year 50% of the time to calls and attend 50% of the training sessions. They were paid by the hour for time spent responding to a call or attending training.
The Board agrees with the court's reasoning in this case and finds that the term "regularly employed" used in subsection 41(1) of the FPPA also implies a requirement of a fixed pattern of employment or work schedule, rather than a sporadic or intermittent one. In the Board's view, the language used by the legislature in the EPPA indicates an intention to capture those firefighters who, although they may not in all cases be employed full-time, are nonetheless relied upon by the Municipality to perform a regular work schedule. It did not, on the other hand, seek to impose the same restrictions on those firefighters whose work is simply intermittent or sporadic in nature.
The firefighters in the present case are regularly scheduled "on-call" approximately one week of every month when they are assigned on duty squad. This "on-call" requirement stands in contrast to the terms and conditions of service of both the firefighters in issue in the Whitchurch court case and the firefighters in issue in the Board's decision in The Corporation of the Town of Tecumseh. In both of these cases, the firefighters were paid a type of activity allowance only if they responded to a given call. The Board therefore finds that the firefighters in issue in the present case are "regularly employed" within the meaning of the provision in the FPPA as they have a regular work schedule when assigned "on-call" during their duty squad week.
The next question is whether or not the firefighters may be said to be employed on a "salaried basis" within the meaning of subsection 41(1) or whether they receive an "honorarium" within the meaning of the definition of "volunteer firefighter" contained in subsection 1(1) of the EPPA. The word "salary" and "honorarium" are defined in The Concise Oxford Dictionary of Current English, 8th ed., Clarendon Press, Oxford, 1990 (the "Dictionary") as follows:
salary - n. (p1. -ics) a fixed regular payment, usu. monthly or quarterly, made by an employer to an employee, esp. a professional or white-collar worker. - v.tr. (-ies, -ied) (usu. as salaried adj.) pay a salary to.
honorarium - a fee, esp. a voluntary payment for professional services rendered without the normal fee.
As noted above, the firefighters in the proposed bargaining unit are paid what has traditionally been referred to as an "honorarium." Unlike the bi-annual payments received by Chief Bradt when he started working as a firefighter for the Municipality some thirty years ago, the payments are now made in equal installments once a month. In the Board's view, these equal monthly payments are in the nature of fixed regular payments that one normally associates with a salary. The monies are also treated as employment income as indicated in the T4 slip entered into evidence.
- On the other hand, it is difficult to say that the current monthly payments made by the Municipality are "voluntary" payments as stipulated under the Dictionary definition of "honorarium". The term "voluntary" is further defined in the Dictionary as follows:
voluntary - adj. 1. done, acting, or able to act of one's own free will; not constrained or compulsory, intentional (a voluntary gift). 2. unpaid (voluntary work)....
The evidence was that for the past several years, compensation for the firefighters has been the subject of informal negotiations between the Association representing the firefighters and the Municipality and also now includes extensive benefit coverage. Having agreed to compensation for the firefighters, it is difficult to see how the Municipality could then say that that payment and extensive benefit coverage are not, in fact, compulsory. The Municipality cannot be said to be free to give it or not as it chooses. For all of these reasons, the Board concludes that the regular monthly payments made to the firefighters are in the nature of a "salary" rather than an "honorarium" within the meaning of the FPPA.
Similarly, the Board does not find that the firefighters otherwise meet the definition of "volunteer firefighter" contained in subsection 1(1) of the FPPA for the reasons that follow. There is firstly no question that the firefighters are not, like the firefighters in The Corporation of the Town of Tecumseh case, cited above, entitled to an activity or training allowance. They are not paid any additional monies over and above their monthly payments for attendance. In addition, they cannot be said to perform work "voluntarily" in the sense of it being unpaid work or even in the sense of the work not being compulsory.
While it is perhaps arguable that their attendance at full alarm calls is entirely "voluntary", this is not the case with respect to duty squad calls where they are required to attend, unless they have made provision for someone of equal rank to cover for them. As noted above, the obligation during the scheduled duty squad week is to respond to any and all calls that come at any time during that week commencing at 8 a.m. Monday to 8 a.m. the following Monday. This is subject only to the ability to trade assignments with someone of equal rank. The requirement to attend is therefore much the same as Mr. Clifford's requirement to show up at his regular full-time job at Brewers Retail unless he has made arrangements to trade shifts with another employee.
If the firefighters do not attend or otherwise arrange for coverage, they face the possibility of discipline including possible dismissal from service. In that light, their attendance at calls while scheduled on duty squad calls may be said to be compulsory. Having regard to all of the facts in the particular circumstances before us, the Board finds that, on balance, the requirements of the position are compulsory, not voluntary in nature. The fact that they appear to be entitled to a $1,000 tax deduction as compensation for out-of-pocket expenses incurred as "volunteers" does not alter the Board's view of the compulsory nature of duty squad work. In this regard, the Board notes that there is no evidence before the Board that the statutory definition, if any, of a "volunteer" for the purposes of this income tax deduction is similar to that of a "volunteer firefighter" under the FPPA.
In addition, the payment for the services of the firefighters is more than "nominal consideration." The term "nominal" is defined in the Dictionary as follows:
nominal - 1. existing in name only; not real or actual (nominal and real prices; nominal ruler). 2. (of a sum of money, rent, etc.) virtually nothing; much below the actual value of a thing. 3. of or in names (nominal and essential distinctions). 4. consisting of or giving the names (nominal list of officers). 5. of or as or like a noun.
Nominal consideration is therefore a relative concept, which depends on the actual value of the work performed. The evidence before the Board is that the amount paid to the majority of the firefighters is approximately equal to the first class rate paid to full-time firefighters in Windsor. Their compensation cannot therefore be said to be "much below" the actual value of the services performed. This assessment takes into account that they work roughly one quarter of the time of a full-time firefighter in Windsor. The firefighters further attain this top rate of pay relatively quickly after six years of service.
- For all of the foregoing reasons, the Board finds that the firefighters fall within the definition of "firefighter" under subsection 41(1) of the FPPA and therefore that the provisions of the Act do not apply. This application for certification is accordingly dismissed.
DECISION OF BOARD MEMBER D. A. PATTERSON; November 5, 1999
I do not disagree with my colleagues in many areas of this decision; however, where I do distance myself from the majority is the following areas.
The compensation received by these firefighters is for their service as volunteers, not part-timers. The term volunteer in fire prevention has long been held to denote a person who volunteers his/her free time to the prevention of fire related emergencies in the communities they live. And in consideration of that time spent serving the community, they receive an honourarium. I believe the term is relevant.
I would reject any notion that these volunteers are part-timers.
I would also disagree with the majority in that the evidence was that on response calls, volunteers showed at the fire hall even though they were not on duty squad.
The evidence also showed that these volunteers had full-time responsibilities either with running their own businesses or in the employment full-time with an employer in the community. Also volunteers have been out of town at school or attending social functions where alcohol was imbibed and they did not respond to fire calls. There was no discipline on record handed out to any of these volunteers. Thus attendance at duty calls has never been strictly enforced because there were always other volunteers showing up to either cover for the missing duty squad volunteers or the duty squad was supplemented by other volunteers.
There is no evidence before us to expressly say the work is anything less than voluntary.
The applicant in this ease because these volunteers fall under the jurisdiction of the FPPA will have to establish a fire fighters association to represent these volunteer fire fighters. Once they have status they will have the authority under the amended Act to represent these Volunteer Firefighters as per the provisions of the F.P.P.A. as amended in 1997.