The Arbitration result between Deep River and its fire fighters over the matter of the whether the town can implement the model that right for it, has recently been released to the public in late June, 2017. You can read the arbitrator’s full decision here.
The arbitrator ignored the democratically and strongly expressed opinion of the people of Deep River. He denied Deep River any relief, while continuing a tradition of awarding pay raises well above most other public sector workers.
My commentary published in the NRT in July 2017:
Arbitration Amnesia
Arbitrator Kaplan’s recent decision with respect to the Deep River fire department does not even correctly represent his own 2014 decision, when he states that earlier decision awarded a reduction in the full-time staff.
As there is no minimum staffing clause, the town is free to lay off the staff at any time. His permission was and is not needed.
Secondly, in stating that the town was “specifically entitled” to move to a composite force, he apparently forgot the two very significant strings that he attached to that option: accepting a minimum staffing clause and a requirement to have a captain on all shifts.
Since a minimum staffing clause has never been removed from a fire collective agreement once in place, accepting that option would have permanently locked in the unreasonable cost of our fire service.
Furthermore, he says he considered the statutory criteria and the doctrine of replication, but he must have forgot what these are as well:
The Public Sector Dispute Resolution Act, 1997 requires arbitrators to consider “best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.”
The Fire Protection and Prevention Act, 1997 requires the arbitrators to consider, among other criteria, “the employer’s ability to pay in light of its fiscal situation” and a comparison with “other comparable employees in the public and private sectors.”
He provides no evidence that he considered whether the fire service is affordable, which reminds me that one arbitrator told me that arbitrators would only consider “ability to pay” arguments persuasive if taxpayers have been reduced to “eating grubs off trees.” Otherwise the town should just raise taxes.
This is not a reasonable interpretation of what the Legislative Assembly of Ontario intended. Who was eating grubs off trees in 1997?
Further, he only makes a comparison with police, which is neither sufficient to meet the statutory criteria nor the doctrine of replication. Replication requires the arbitrator try to reach the agreement the parties would have reached themselves through free collective bargaining.
Since there is no truly free collective bargaining with emergency service workers who can’t strike or be locked-out, the only way to achieve replication is to compare settlements with employees who can.
As stated by Arbitrator Martin Teplisky many years ago, “The goal of compulsory binding arbitration is to ensure that employees affected by the loss of the right to strike fare as well, although no better, than employees whose settlements are negotiated within the customary framework of the right to strike and lockout.”
Its time for arbitrators to remember the statutory criteria and the true intention of replication.
Daniel Banks
Former Deputy Mayor, Deep River