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December 1, 2006 |
Issue No. 1 |
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— CONTENT— |
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VACATION SCHEDULING A MANAGEMENT RIGHT IF NO SPECIFIC CLAUSE IN COLLECTIVE AGREEMENT, ARBITRATOR RULES A New Brunswick arbitrator has held that, in the absence of express language in the collective agreement, management has the right to approve or deny vacation requests, as long as it acts reasonably. Language in a collective agreement protecting past practice must clearly limit management rights, and the past practice must not be in conflict with any other provision in the collective agreement. Details below. See also section 22.6.3 in Leading Cases on Labour Arbitration. "ONE SIZE FITS ALL" FITNESS TEST NOT A BONA FIDE OCCUPATIONAL REQUIREMENT FOR FIREFIGHTING, BOARD FINDS After the Canadian Forces Fire Marshall requested that a "non-gender, non-biased and task-related" firefighter fitness test be created, a circuit of 10 firefighting-related tasks was developed. A cut-off time of eight minutes was set, even though none of the Forces' female firefighters or firefighters over 50 had passed that mark in the trials. Following grievances by 329 firefighters, an arbitrator ordered the employer to cease using the eight-minute standard, as it had not shown that it would be an undue hardship to implement different standards for different gender and age groups. Details below. See also section 14.3.3 in Leading Cases on Labour Arbitration. |
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— DETAILED REPORTS — |
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VACATION SCHEDULING A MANAGEMENT RIGHT IF NO SPECIFIC CLAUSE IN COLLECTIVE AGREEMENT, ARBITRATOR RULES The Facts: On December 8, 2004, the Divisional Fire Chief for the Oromocto Fire Department sent a memo to all officers indicating that training had been scheduled for the period of May 30 to June 17 of 2005, and asking that no personnel schedule holidays during that time. The practice for establishing vacations in the Department was that each December all members would submit their vacation requests to the officer-in-charge, who would submit the requests to the Chief for approval. In the past, vacation requests had never been denied. However, in December of 2004, several members requested leave during the period blocked out for training by the December 8 memo. These leave requests were denied. The Oromocto Professional Firefighters Association filed a grievance. The Arguments: The collective agreement provided as follows:
The union argued that Article 25 of the collective agreement required mutual consent to alter vacations, and that without an employee's consent, the Department was unable to deny vacation leave to those employees who had requested leave during the training period. Article 25(b)(ii) provided: "No employee shall be required to attend essential training programs during periods of approved leave unless the employee and the employer otherwise mutually agree. Any employee required to attend essential training sessions shall be given a minimum of two weeks' notice by the employer." The union also relied on the incorporation of past practice into Article 22, and argued that, since vacation leaves had never been denied in the past, the Department did not have the right to do so now. Article 22 read: "All rights, privileges and working conditions enjoyed by the employees at the present time, which are not included in this Agreement, shall remain in full force, unchanged and unaffected in any manner during the term of the Agreement unless changed by mutual consent. Nothing in this Article shall be interpreted to limit or restrict management's right to manage the workforce, implement training and assign duties to employees, provided however, that management's decisions shall not be unreasonable or contrary to any specific provision of this agreement." The employer countered that there was nothing in the collective agreement entitling employees to schedule their own vacations. In the employer's submission, the agreement clearly stipulated that it was the Fire Chief who was responsible for fixing the vacation schedule. It characterized the past practice as approval of leave requests where possible, and argued that it was reasonable and justifiable to deny requests in order to conduct training, particularly since ample notice had been given. The Decision: The majority of an arbitration board chaired by Raymond Gorman dismissed the grievance. In Gorman's view, the collective agreement did not limit the employer's ability to determine vacation schedules, as long as it acted reasonably. Gorman found that, while Article 22 preserved past practice, it also provided that it should not be interpreted as limiting management's right to manage the workforce or implement training. He noted that the general proposition is that, "unless the collective agreement provides otherwise, management has the prerogative to determine the vacation schedule for its operations." After closely examining the collective agreement, Gorman concluded that "the majority of the Board cannot find any provisions in the agreement that provide otherwise." As for the union's argument that the employer violated Article 25, Arbitrator Gorman held that "[t]he provisions of Article 25, which state that no employee shall be required to attend essential training during periods of approved leave, are subject to the leave having been approved by the employer. The employer in the present case did not approve any leave for the planned period of training and made that fact clear in advance of any employee selecting their 2005 annual leave. The employer has also clearly met the requirement of giving two weeks' notice of training pursuant to Article 25 of the collective agreement. Again, the test of reasonableness comes into play and ... the employer has acted reasonably." While observing that the employer did not enjoy an unfettered discretion to unilaterally establish training periods in a way that would interfere with approved leaves, Arbitrator Gorman held that scheduling training more than six months in advance, and before leave requests were made, was a reasonable action. Comment: The outcome of this case is consistent with the dominant view in arbitral jurisprudence that an employer has the inherent right to set vacation schedules, in the absence of an express provision in the collective agreement. Even where a collective agreement, such as the one here, requires that the employer take an employee's wishes into consideration, most arbitrators have held that clear language is needed in the collective agreement if the employee's wishes are to prevail. For further discussion of vacation scheduling, see section 22.6.3 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Oromocto Professional Firefighters Association, Local 1576 v. Oromocto (Town) |
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"ONE SIZE FITS ALL" FITNESS TEST NOT A BONA FIDE OCCUPATIONAL REQUIREMENT FOR FIREFIGHTING, BOARD RULES The Facts: After the Department of National Defence (DND) implemented a single standard firefighter fitness test, requiring all of its firefighters to complete a task-based circuit within 8 minutes regardless of age or gender, 329 grievances were filed. The parties agreed to place most of the grievances in abeyance until two representative grievances were decided. The two representative grievors, Terrance Barr and Sherry Flannery, were firefighters with the DND, which employs civilians to provide firefighting services on Canadian Forces (CF) bases within Canada. CF firefighters, on the other hand, are military personnel who fight fires outside of Canada. From the mid-1970s to the early 1990s, CF and DND firefighters were tested for physical fitness using a test derived from the military "Cooper" test, which consisted of running 1.5 miles, doing push-ups, sit-ups and pull-ups, and carrying a 57-kg weight for 30 metres. Under that test there were different standards according to a firefighter's age and gender. In June 1991, the Canadian Forces Fire Marshal requested that a new "non-gender, non-biased and task-related" fitness test be developed that would ensure that CF and DND firefighters were physically capable of carrying out their duties. A contract was awarded to the Queen's University Ergonomics Research Group (ERG) to develop the physical fitness standards. The ERG reviewed scientific literature, which revealed that aerobic fitness is one of the most important predictors of performance for firefighters. The ERG also visited civilian and military firefighter training facilities and compiled a list of the most common and demanding tasks performed by firefighters, choosing 10 to create a circuit of firefighting tasks designed to test aerobic fitness. A pilot study of the circuit was performed using 25 male firefighters between the ages of 21 and 42, and this was followed by the main study of the circuit, which was conducted between April and June 1994, using 202 male and 7 female DND and CF firefighters. To increase the number of women in the sample, 17 municipal female firefighters were also tested. The average completion time for the men was 7 minutes and 30 seconds, and 9 minutes and 57 seconds for the women. As the ERG had been directed "to develop a single cut-off score regardless of gender, age, service and fitness rating," it calculated the average time to complete the circuit – 7 minutes 46 seconds – then rounded that time up, recommending that eight minutes be the standard for completing the circuit. In its report, it noted that females and those in the 50- to 59-year age category had a high failure rate with the eight-minute standard and would be the most adversely affected, and recommended that the standard be phased in over a three-year period. The employer implemented the circuit in 1998, for personal evaluation only, and made testing mandatory as of May 1, 2000. Firefighters who failed the first test were to be given training and counselling to meet the eight-minute standard. Any who failed the second test in October 2000 would face administrative action. Many civilian firefighters in the DND refused to be tested, and in response to the Union of National Defence Employees' objections, the employer added an additional phase-in period, allowing firefighters to meet the eight-minute standard by the end of 2003. CFB commanders were sent a series of letters outlining recommended disciplinary action for firefighters who refused to do the circuit, and in 2003 the DND approved an "Employment Continuity Program" to provide training for alternative positions, job placement counselling and potential deployment to other positions for those firefighters who could not meet the standard. When Flannery became a DND firefighter in 1987, she passed the initial fitness test, and passed the Cooper-derived test every year thereafter. After attaining a time of 11 minutes and 40 seconds in the main study of the circuit, Flannery refused to take the test later, as she felt that it discriminated against female firefighters, and did not reflect the work of a firefighter, as it did not test teamwork. Flannery also explained that actual firefighting and rescue operations comprised only 4% of her duties, while other duties included vehicle inventory; fitness training; maintenance of the equipment and the fire hall; fire prevention; responding to medical calls; and giving first response instruction training. Barr, who had also passed the Cooper-derived fitness test every year until 1992, participated in the ERG main study when he was 45 years old. It took him over nine minutes. Barr objected to the test as he trained for one hour every shift, his fitness had never been questioned, and he had always received good performance evaluations. Furthermore, he explained that over half of the firefighters in the workplace were over the age of 50, and that, as a deputy platoon chief, he would assign tasks that required heavy lifting or rescue to the younger and more agile firefighters. After the DND's Director General of Employee Relations denied the two grievances, concluding that "the eight-minute standard was not discriminatory and otherwise constitutes a bona fide occupational requirement (BFOR)," the grievances were referred to adjudication. The Arguments: The grievors alleged that the eight-minute standard was discriminatory on the basis of age and gender, and that the DND had failed to demonstrate that completing the fitness test within eight minutes was a BFOR. The grievors noted several problems with the ERG's research, including that there were not enough women and older subjects in the main study, and that in establishing a standard, the ERG had simply "lumped together the results of men and women in the main study," even though male subjects comprised 90 percent of the test. As a result, the average time was strongly skewed towards the men's average completion time. The grievors stressed that there was no evidence that the average completion time of the circuit was an appropriate minimum requirement to perform the tasks of a firefighter safely and efficiently, and submitted that an eight-minute standard was therefore not a BFOR. The employer responded there was no prima facie case of discrimination, as the difference between those who passed the test and those who did not was their level of fitness, and the comparator was thus not age or gender, but fitness level, which is not a prohibited ground of discrimination. The employer argued that a single minimum physical fitness standard, regardless of age or gender, was justified, as in an actual fire, firefighters must be able to perform all of the tasks of the job, and that further accommodation was not possible due to the risk to others. The eight-minute standard simulated the level of fitness required to perform firefighting duties safely, and the circuit allowed individuals to rely on technique, strength and agility to compensate for lower levels of aerobic fitness. The Decision: Adjudicator Guy Giguère, of the Public Service Labour Relations Board, held that the eight-minute standard adversely affected female and older firefighters and was therefore discriminatory, and it did not constitute a BFOR, as the employer had not demonstrated that it would be an undue hardship to accommodate different categories of firefighters. Although the requirement of completing the circuit in eight minutes appeared neutral on its face, the adjudicator held that the eight-minute standard was discriminatory to both female and older firefighters. The professor who was in charge of the ERG contract testified that "any physical standard would be more difficult to attain for women and for older firefighters," while another professor, who was an expert in exercise physiology, explained that even with equal aerobic fitness, the smaller body mass and lower strength of women meant it would take them more time to complete the circuit than men. "It is therefore clear," Giguère wrote, "that, as a group, female firefighters are disadvantaged in having to complete the circuit at the same required standard as for men in the same age group." As for older firefighters, the experts agreed that aerobic fitness declines with age, and that "while training will increase fitness and counterbalance some of the effects of aging, as a fit person ages[,] aerobic fitness decreases.... It is, therefore, clear that older firefighters are adversely affected in completing the eight-minute standard." The requirement that all firefighters complete the circuit test within eight minutes was thus a prima facie discriminatory standard on the basis of age and sex. In British Columbia (Public Service Employees Relations Commission) v. BCGSEU ("Meiorin"), [1999] 3 S.C.R. 3, the Supreme Court of Canada developed a three-step test for determining whether a discriminatory standard is a BFOR, according to which the standard must be rationally connected to job performance; adopted in the good faith belief that it was necessary for that purpose; and "reasonably necessary" to accomplish that legitimate work-related purpose, so that accommodating the affected employees would impose an undue hardship. Applying the Meiorin test, Giguère held that there was a rational connection between the standard and the goal of attaining operational efficiency and ensuring that firefighters have the requisite fitness to perform their job. It was also clear that the employer held the good faith belief that the eight-minute standard was necessary. However, with respect to the third step, Giguère found, the employer did not investigate any other options besides developing a single standard. The ERG had discussed the value of using the average time for each age group as the cut-off, but had been told to develop a single standard. Giguère next considered whether there was a less discriminatory method that would still accomplish the employer's purpose. In this regard, one of the hurdles for people with smaller stature and body mass was the weight of the protective equipment, yet the employer had not demonstrated that it had investigated the possibility of improving the equipment in order to diminish the physical requirements of the job. Furthermore, since fire chiefs had flexibility in assigning tasks at a fire scene, Giguère concluded that "having diversity in a platoon is attainable without compromising operational efficiency and safety." It would be possible, for example, to assign different types of tasks on a permanent basis, to accommodate more than one fitness level in the force. Most importantly, in Giguère's opinion, was that there was no evidence indicating that the ability to complete the circuit in eight minutes represented the minimum fitness level or aerobic capacity to perform the job of a firefighter safely and efficiently. Rather, Giguère declared, "[w]hat the ERG did was lump together all the data, took the mean completion time of the main study at 7 minutes and 46 seconds, where younger male firefighters were over-represented, and rounded the figure to eight minutes. The problem here does not lie with female or older firefighters but with the use of a younger male norm in place of a fair-minded gender and age-neutral job analysis... The ERG could have determined different cut-off scores for males and females by age groups. The different standards could be challenging for each gender and age group and still ensure a fitness level necessary to do the job safely." As the employer had failed to demonstrate that an undue hardship would result if women and older firefighters were accommodated, Giguère concluded that the eight-minute standard was not a BFOR, and ordered that the employer "immediately cease using the eight-minute standard as a condition of employment for DND firefighters." He suggested that the parties jointly develop an acceptable standard and accommodation measures, and discuss what to do when a firefighter was no longer fit to perform his or her duties. Comment: In addition to denying that the standard was discriminatory, the employer submitted that the grievances were premature, and that unless the grievors had been adversely affected as a result of taking the test, they had no right to file a grievance. Acknowledging that "[a]djudicators will decline to hear a grievance that merely raises a hypothetical or moot issue," Giguère held that, "even if some aspects of a grievance are prospective or anticipatory, where a real difference between the parties has crystallized, and elements of certainty in implementation exist, the matter will not be considered premature." The trade-off for the "obey now, grieve later" rule was that "employees can grieve a policy of the employer if its breach will likely lead to discipline." If an employee had to wait until the breach occurred, Giguère explained, the same issues would arise, only with the addition of insubordination on the employee's part. Moreover, "[g]iven the importance of human rights legislation...there [were] even more compelling reasons for not subjecting the grievors to what could potentially be found to be a discriminatory standard prohibited under the law." For further discussion of direct and indirect discrimination, see section 14.3.3 in Mitchnick & Etherington, Leading Cases on Labour Arbitration (Lancaster House, online edition). Case Name: Barr and Flannery v. Treasury Board (Department of National Defence) |
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