The province is standing by a modified fitness test for firefighters despite resistance from the Saskatchewan Government and General Employees’ Union (SGEU), which says that it’s discriminatory and causes unnecessary injuries to would-be wildfire fighters.
SGEU sent out a news release Monday, the second in a week, regarding the WFX-FIT test, which has been at the centre of a legal battle between the union and the Ministry of Environment.
The test requires would-be firefighters to repeatedly run a course that includes making more than 50 passes over a 35-degree ramp while carrying weight of up to 63 lbs.
An arbitrator had ruled that the test was discriminatory against women and older firefighters. The decision was upheld in the Court of Appeal, and leave to appeal to the Supreme Court was denied, meaning the arbitrator’s decision stands. While the province said the arbitrator only took issue with the time of the test, SGEU says the decision also criticized other elements.
After the ruling, the ministry increased the time allowed to complete the test, from 17 minutes and 15 seconds to 18 minutes and 10 seconds. SGEU said the government has not provided a rationale for the new time.
In a written statement, the Ministry of Environment explained that the new time limit was developed in consultation with the experts who designed the original test.
“The ministry believes that relaxing the cut score will address the arbitrator’s concerns, and will comply with the arbitrator’s requirements,” the statement said.
“SGEU was notified of the decision on April 2, 2019.”
While SGEU president Bob Bymoen said the union isn’t opposed to the increased time for the test, it said that alone wasn’t enough to alleviate concerns.
“People are being injured while taking the test,” he said.
SGEU cited its own internal survey, conducted in 2017. It found that over half said the ramp doesn’t reflect what is required during actual firefighting duties. The survey also found that 20 per cent of firefighters reported suffering an injury during the test and 58 per cent reported witnessing someone else suffer an injury.
“Government refuses to lower the angle of this ramp, or even look at the number of times participants are required to pass it,” said Bymoen. “Still to this day, firefighters are suffering injuries because of the test. It risks firefighters’ health and safety, and takes experienced firefighters out of the field, denying them the ability to carry out their duties.”
The union took issue with responses to media provided by the ministry last week arguing that only the time frame was discriminatory, not the test itself.
The union quoted a portion of the decision that said “the WFX-Fit test is prima facie discriminatory because of potential adverse-effect discrimination on women and older men as a group because it focuses on the most demanding parts of the wildland firefighter job and thus demands high aerobic exertion for the duration of the test, especially the requirement to carry the hose pack over the ramp fifty times.”
The Ministry of Environment defended its use of the test. All member agencies of the Canadian Interagency Forest Fire Centre use the test for Type 1 wildland firefighters, the province wrote. It was developed nationally in 2009 and adopted in Saskatchewan in 2012.
“In order to be eligible for export to other Canadian jurisdictions, all Type 1 wildland firefighters must complete WFX-FIT under the national cut score of 14 minutes, 30 seconds,” the ministry said. “Saskatchewan has an interest in continuing to use a modified version of WFX-FIT, so that it can offer its employees the chance to challenge the national cut score and be eligible for export to other jurisdictions. There’s also a desire to ensure the testing of Type 1 wildland firefighters remains standardized across Canada.”
The ministry cited a different portion of the original ruling, which found that the test “is reasonably necessary to the accomplishment of the employer’s legitimate interests to ensure safety and efficiency through fitness testing.”
The arbitrator wrote that the overall design of the test is a bona fide occupational requirement. It is the cut-off point, which varies from province to province and is based on an 80 per cent pass rate, which was deemed arbitrary and discriminatory, the province said.
In the summarized conclusions of the ruling, which is available on CanLII, arbitrator Daniel Ish wrote:
“The WFX-Fit test is discriminatory and is not a bona fide occupational requirement because the cut-score as set has a potential discriminatory adverse impact on females and older males. In other respects the WFX-Fit test is valid.” The cut-score is the time limit, previously set at 17 minutes and 15 seconds.
As for injuries linked to the test, previous submissions by the union that the test caused injuries were found to be mostly unsubstantiated, Ish said. Those reports came prior to the 2017 survey of firefighters where test participants said they had seen injuries caused by the test itself.
Test not only source of conflict
While the two sides continue to squabble over the test, the SGEU and the province are also in disagreement over a grandfathering clause signed in 2012 exempting firefighters hired before April of 1999 from changes to the fitness testing regimen.
The union and the arbitrator said the province breached that agreement.
SGEU claims the province has not yet brought these workers back.
“Early on, SGEU and the Ministry had agreed to a grandfathering clause, and government turned around and violated it,” Bymoen said. “Now they’re delaying calling these people back to work and jeopardizing the safety of the communities and residents that rely on their services.”
The province is also accusing the union of being the only one across Canada to object to the use of the fitness test.
“The ministry would like to emphasize that all member agencies of the Canadian Interagency Forest Fire Centre use the WFX-FIT test for their Type 1 wildland firefighters. Yet, SGEU is the only union in Canada to bring any grievance against the WFX-FIT test,” the ministry wrote.
According to the union, even if that were true, it wouldn’t matter.
“From the very start, this government has been misrepresenting information about this test. We’ve been reporting to unions across the country on this case, and other provinces are watching closely to see what comes of it,” Bymoen said.
“Even if SGEU were the only union to take issue with the test, it was right to do so. The real question is why the ministry continues to resist change and waste public money defending a test that’s harmful to Saskatchewan’s wildland firefighters and to the safety of northern communities.”