GSB# 2002-0104, 2002-0387, 2002-0617, 2002-0707, 2002-0796, 2002-0797, 2002-0798

UNION# 2002-0727-0004, 2002-0727-0041, 2002-0727-0001, 2002-0727-0007, 2002-0727-0008, 2002-0727-0002, 2002-0727-0006, 2002-0727-0005, 2002-0727-0003, 2002-0729-0001, 2002-0623-0002, 2002-0623-0005, 2002-0713-0008, 2002-0713-0001, 2002-0713-0003, 2002-0713-0004, 2002-0713-0006, 2002-0713-0007, 2002-0713-0005, 2002-0713-0002, 2002-0623-0003, 2002-0623-0004, 2002-0623-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hymers et al.)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Belinda A. Kirkwood

Vice-Chair

FOR THE UNION

Esi Codjoe Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris Counsel Ministry of Government and Consumer Services

HEARING

May 11 & 14, 2007, September 26, 2007; February 6, March 19, April 7, 22, 23, 2008

CONFERENCE CALL

April 24 & 29, 2008.

Decision

Background

The grievors are CL415 pilots and co-pilots (“the pilots”). Prior to 2002, the pilots were working under a compressed work year agreement under the Collective Agreement as Schedule A employees and under a 1991 Minute of Understanding. When the pilots terminated the 1991 Minute of Understanding, the Employer then treated the pilots’ working conditions as being determined by Schedule 6 to the Collective Agreement. The pilots grieved claiming that they were governed by the Collective Agreement as amended by a 1995 Float Agreement or alternatively by a 1988 Float Agreement.

The issue which was presented and argued before me, and on which I rendered a decision on January 18, 2005, was to determine what agreement governed the working conditions for the pilots. In my decision of January 18, 2005, I held that the pilots were governed by the Collective Agreement as amended by the 1988 Float Agreement, and I remained seized with any difficulty arising from the implementation of the decision.

As the parties have not been able to resolve how the decision is to be implemented, the matter has been brought back to me to determine the effect of the implementation of the Collective Agreement as amended by the 1988 Float Agreement for the period from April 1, 2002 to the end of the 2003 fire season.

The parties agreed to segment the issues concerning each implementation question, and I would hear evidence and argument on each one before continuing with the next.

The issue that I am being asked to resolve in this segment of the hearing is, what if any compensation should the pilots receive for having to call-in to the Provincial Coordination Centre to listen to a pre-recorded message (the Alert Line), on their last day off work prior to their next scheduled shift, to learn the location of their next work assignment and their readiness for active duty. The parties referred to the requirement to call in as call-back although they did not agree that this time ought to be characterized as call-back.

The Union claims that the pilots are entitled to a minimum 4 hours pay at time and a half, for each occurrence, under the call-back provision, Article UN 9 of the Unified Collective Agreement, running from January 1, 2002 to December 31, 2004 (the “Collective Agreement”).

The Employer claimed that, as awarded on January 18, 2005, the pilots were paid pursuant to the Collective Agreement as amended by the 1988 Float Agreement. The Employer asserted that under the 1988 Float Agreement, the pilots are not entitled to any call-back pay for calling into the Alert Line.

During the relevant period the Employer paid the pilots for calling into the Alert Line on the pilots’ last day off work, one half hours work at a premium rate, and occasionally, when it was shown by a pilot that more than a half-hour of work was required, it paid the pilot for one hour of work at a premium rate. In closing argument, the Employer stated that the Employer would not require any prior payment for calling into the Alert Line to be refunded or credited to the Employer in the overall calculation of monies due, if any as a result of the implementation of my decision dated January 18, 2005.

Facts

Under the compressed work year arrangement, the pilots did not work during the non-fire season, which usually runs from approximately November 1 to March 31 of each year, and their work for the year, based upon a minimum of 36 ¼ hours per week, was compressed into the fire-season.

During the fire season, the Employer assessed the fire conditions and then determined when and where the pilots were needed. The Employer informed the pilots of their availability and whether they had to report to work, by setting the Alert. The Red Alert was the highest state of readiness such that the pilots had to be readily available at the bases for immediate dispatch. The Yellow Alert did not require the pilots to be at the base, but to be immediately contactable, and within 30 minutes of travel from the air base. The Blue Alert was in effect when there was no identified air attack needed for the day, but a reason to believe that the conditions may change and it may be necessary to alert the pilots for immediate dispatch. The pilots had to be immediately contactable. If there was No Alert, then either the pilots could be assigned to different roles, or they would have a duty free day.

It was the pilots’ responsibility to learn where they were to be assigned next and their readiness for work, but they were left to their own resources to learn of their assignments. Initially, the pilots had to call into the base or go to the base to speak to someone, pick up a fax, review a message on the board at the base, or speak to one of their peers to learn what alert was in effect. At the pilots’ request, prior to 1990, a system was set up such that the alert was made available to the pilots through a recorded message.

The Employer would have planning sessions twice a day. In the afternoon the Employer would assess the weather and the fire conditions and determine where the aircraft would be required. A recording was made to alert the pilots of their assigned location and the applicable alert for the next day. The next morning, after again assessing the weather, the fire conditions and the locations of the aircraft, the Employer would change the recording if necessary. The Alert Line was also used to inform pilots of a wide range of aircraft not covered by this grievance. The goal was ideally to make the morning’s determination by 10 a.m. although the times that it would be available would vary such that the information would be available at 10:30 a.m. or 10:45 a.m. The afternoon recording was not done at a set time, although attempts were made to have it completed by 5:30 p.m.

The greatest change in moving from a compressed work year arrangement to Schedule 6 employees was that the pilots had to report to work all year round. The pilots still worked a minimum of 36 1/4 hours a week, but the Employer scheduled the pilots to work 5 days on and 2 days off during the non-fire season, and, five days on, two days off, followed by two days off and five days on, a pattern of 10 days work and 4 days off during fire season. The Employer provided a schedule to the pilots either before fire season or prior to each month’s work, showing the days that the pilots were to work. They were given a scheduled start time of 11:00 a.m. in the eastern region and 12:00 p.m. in the western region. The start times and end times were subject to variation, particularly during the fire season, as they reflected the fire conditions.

The Alert Line remained in effect after 2002. When the pilots were treated as Schedule 6 employees, the pilots used the Alert Line in the same manner as they had prior to 2002. The Union witnesses testified that it took time to call into the Alert Line. The information for the pilots subject to this grievance was at the end of the pre-recorded message. In addition, the pilots had to call the Alert Line frequently as in the early years, the line did not have the capacity to receive all the calls at one time, and the pilots often found the line busy. Often they had to call the Alert Line more than once, when they found that the message had not been updated.

Carl Hansson held a management position as Senior Pilot for the Fixed Wing Pilots. He testified that when he worked under the 1988 Float Agreement, which was after 1990, the only time that pilots received call back pay was when they attended at the workplace outside their working hours. Garry Stewart, who had been in management since 1988 testified that there had been occasions where pilots had been paid in error for calling into the Alert Line in 1988, but it was cancelled and corrected. Bob Crowell, the Operations Manager in 2002 and 2003 testified that the only persons who were paid call-back pay were those on straight Schedule 6, and those under the 1988 Float Agreement and to date, call back pay is not being paid.

Union Submissions:

The Union referred to the following cases: OPSEU/Koncz and Ministry of Community and Social Services GSB #0749/88 (March 20, 1989)(Verity), OPSEU/Hill and Ministry of Natural Resources GSB #1134/90 (February 5, 1991) (Wright), OPSEU/Elliott and Ministry of Labour GSB #1287 (November 10, 1999)(Briggs), OPSEU v. Ontario (Ministry of Finance) (James Grievance) GSB #0232/03, [2004] O.G.S.B.A. No. 108 (Abramsky), OPSEU v. Ontario (Ministry of Finance) (James Grievance) GSB #0232/03, [2004] O.G.S.B.A. No. 100 (Abramsky), Bay Mills Ltd. v. United Steelworkers of America (Insurance Benefits Grievance) Source decision, [2000] 88, L.A.C. (4th) 101 (Knopf); St. Lawrence Starch Co and RWDSU Source decision, [1989] 4, L.A.C. (4th) 349 (Shime); OLBEU/Cheng and Liquor Control Board (August 3, 2001) (Abramsky), Insurance Corp. British Columbia and Office & Professional Employees’ International Union, Local 378 Source decision, [2002] 106, L.A.C. (4th) 97 (Hall), Re Greater Vancouver Regional District and Greater Vancouver Regional District Employees’ Union Source decision, [2002] 110, L.A.C. (4th) 72 (Kelleher).

The Union submitted that the 1988 Float Agreement and Article 9 of the Collective Agreement (previously Article 14.1 of the earlier Collective Agreement) applied to the pilots. The Union submitted that the pilots’ Normal Hours of Work are set out in Article 1 of the 1988 Float Agreement and the obligations of the pilots during fire season are set out in Article 2 of the 1988 Float Agreement. The Union submitted that as a result of Article 14.1 of the earlier Collective Agreement, Article 9 of the Collective Agreement, the operative collective agreement, which sets out the entitlement to call-back pay, is also applicable.

The Union submitted that call-back pay as reflected in the Collective Agreement is a reflection of the status quo in the case law.

The Union claimed call-back pay is paid for the inconvenience caused to the employee for having to do some work outside the working hours, which are not contiguous to the employee’s work hours (Koncz)(supra). Call-back pay is not based upon the actual hours worked, but is a set compensation for the inconvenience of having to work outside working hours (Elliott)(supra), such as set out in Article 9 of the Collective Agreement.

The Union submitted that the call-back pay provisions are a reflection of the modern workplace, such that not all work requires attendance at the workplace. Some work can be performed over the telephone. Therefore, when reading the 1988 Float Agreement and the Collective Agreement, in the context of the reality of the workplace, call-back pay includes compensation for telephoning into the Alert Line.

The Union submitted that as in both James (supra) decisions, each case turns on its own facts and is not determined merely by having the status of a Schedule 6 employee.

The Union submitted that calling in is not merely receiving notification of when work is to occur, but was work which was required by the Employer outside work hours and was considered by Mr. Hansson as a fire related duty. The Union submitted that the Employer required the pilots to call in to the Alert Line on the pilot’s last day off prior to his next scheduled shift, and if the pilot failed to do so the pilot was subject to discipline. Calling to the Alert Line was no longer voluntary, but mandatory.

The Union argued that the evidence illustrates that the pilots are required to arrive at the work-place and to finish at a pre-determined time, notwithstanding that operational requirements often made them work earlier or later than their scheduled hours. This aspect of their work distinguishes them from many other Schedule 6 employees who were not awarded call-back pay when they were found not to be on scheduled shifts, for example, as in the Hill (supra) and James (supra) decisions.

The Union submitted that being required to call in on a day off was an inconvenience to the pilots, and depending upon the information provided on the Alert Line, the pilots may have been put to further inconvenience by having to change their lives to accommodate the requirements of the job. The pilots work autonomously and there is a degree of trust that flows between the parties. They are in the best position to know the amount of call-back that they worked.

The Union submitted that in the alternative the pilots are entitled to overtime pay. Arguments were made and cases were submitted on this point ((St. Lawrence Starch Company, (supra) Insurance Corporation (supra), and Greater Vancouver (supra.)). The Employer however, in its closing argument agreed that the premium pay which had been paid, would not be clawed back from the pilots in its calculation of monies payable as a result of the implementation of my decision of January 18, 2005.

Employer Submissions:

The Employer relied upon OPSEU/Baker/Elliott and Ministry of Labour GSB #90/89 (October 31, 1990)(Kirkwood), OPSEU/Henderson and Ministry of Energy GSB #1090/89 (June 26, 1991)(McCamus), OPSEU/Seguin and Ministry of Natural Resources GSB #2185(January 9, 1989)(Wilson), OPSEU/LaSalle and Royal City Ambulance Services GSB #0284/98 (October 6, 1999)(Petryshen), OPSEU/James et. al and Ministry of Finance GSB #2003-0232 (June 9,2004)(Abramsky), OPSEU/Delaquis) GSB #1599/92 (November 15, 1991) (Tacon), OPSEU/Van Exam) and Ministry of Natural Resources GSB# 2002-0862(February 6, 2004) (Brown), OPSEU/Union Grievance GSB #2002-2427 (Brown), OPSEU/Union Grievance and Management Board Secretariat) (October 17, 2003) (Brown), OPSEU/Mitchell) and Ministry of Labour GSB #3136 (November 29, 1994 (Charney), OPSEU and Northeast Mental Health Centre (Call Back Pay Grievance) [2004] O.L.A.A. No. 673 (Whittaker),

The Employer submitted that as in OPSEU/Seguin (supra), the 1988 Float Agreement amends the Collective Agreement. The Employer submitted that at the time of the 1988 Float Agreement, Article 7.3 of the Collective Agreement provided for the normal hours of work for Schedule 6 employees as a minimum of 36 ¼ hours per week, and Article 14.1 of the earlier Collective agreement provides for call-back pay.

For the 2002 and 2003 period, the early Collective Agreement had changed to a Unified Collective Agreement. The normal hours of work for Schedule 6 employees were provided in Article UN 2.3 and were still a minimum of 36 ¼ hours per week. The call-back provisions as provided in Article 14.1 were now provided in Article UN 9.1 of the Collective Agreement, but were expanded in Article UN 9.2. Contrary to the Union’s claim that Schedule 6 employees were entitled call-back pay under this new provision, the Employer submitted that as the 1988 Float Agreement had only referred to Article 14.1, which had been carried on in UN 9.1 of the Collective Agreement, the Union was not entitled to the benefits set out in the expanded provisions for call-back pay in Article UN 9.2. The Employer therefore submitted that on this basis, the grievance ought to be dismissed.

The Employer further submitted that any entitlement to call-back pay is limited to occurrences during the fire season. Article 2.1.3 of the 1988 Float Agreement provides entitlement to call-back pay under Article 14.1 of the earlier Collective Agreement only during the fire season. It is not provided under the Normal Hours of Work as set out in Article 1 of the Float Agreement. Eligibility for call-back pay is limited further and is only applicable when the pilots are doing “fire and fire-related duties.” This does not include telephoning in to the Alert Line to learn of the next assignment. The Employer disputed the Union’s characterization of Mr. Hansson’s evidence on this point.

The Employer submitted that calling in to learn the details of the pilot’s next assignment is not work. The system provided benefits to both sides. It was an efficient method whereby changes in flight times and locations could be conveyed to the pilots, and from the pilots’ perspective, they were able to readily acquire information for their next assignment. The Employer submitted that it was rare that it took more than a few minutes, and on those occasions, the pilots had been compensated.

The Employer submitted that the pilots did not work scheduled hours and that in itself disentitles the pilots to call-back pay. The Employer submitted that as in the Baker/Elliot (supra) decision the criteria for the ability to receive call-back pay under Article 14.1 of the Collective Agreement, is that 1) the employee must leave work; and 2) the employees must be called back to work; and 3) as also set out in the James (supra) decision, they must be called back to work prior to their “next scheduled shift.”. Even though the pilots have a core set of scheduled hours, dating back to 1988 given the work demands of having to start early or return late, and sometimes not to the same base, the pilots do not have a “next scheduled shift”. The Employer submitted that there is no entitlement to call back at any time until the Employer requires the pilots to have regular shifts.

The Employer submitted that 1988 Float Agreement illustrates that the pilots are not on scheduled hours of work. The nature of the pilots’ work requires flexibility and the Preamble of the 1988 Float Agreement recognizes that the nature of the pilots’ work may cause the pilots to work irregular hours. In recognition of the flexibility required of the pilots, five additional days leave are given to the pilots to compensate the pilots for the flexibility required. Therefore if there is any work involved in telephoning into the Alert Line, such work is compensated by this additional payment as set out in Article 2.2 of the 1988 Float Agreement.

The Employer submitted that the Hill (supra) decision illustrated that a helicopter pilot under Schedule 6 and the Float Agreement was not entitled to call back pay because the helicopter pilot did not have a scheduled shift as he only had to be at work on specific alerts, and when he was called to search and rescue work, it was not for fire and related duties.

The Employer therefore submitted that the pilots are not entitled to call back pay as 1) they are not scheduled shift workers, 2) calling in is not work, and 3) the 1988 Float Agreement states that entitlement to call-back pay only occurs during the fire season, and must be for “fire and related duties” as defined by the parties in Article 2.1.12, and such duties do not include calling into the Alert Line.

The Employer submitted that the pilots have never been paid call-back pay, and that includes the period under the 1988 Float Agreement pay and therefore they are estopped from claiming such pay. It has been a well entrenched practice for the pilots to call in to work prior to coming to work, for which they were never paid. The Employer submitted that as in LaSalle (supra), the pilots were not entitled to call back pay as it was not permitted by the Collective Agreement.

Union Reply

The Union argued that the evidence does not support the application of estoppel. All constituent elements must be proved and cannot be relied upon by assertion (Cheng (supra)). There must be representation by words or conduct which may include silence, the representation must be relied upon, to a party’s detriment (Bay Mills (supra)).

The Union further asserted that the Employer could not rely on Article 2.2 of the 1988 Float Agreement to argue that the extra days leave was provided to the pilots to compensate for the flexibility required of them for their work without proof (Cheng (supra)).

Applicable Articles:

The Preamble in the 1988 Float Agreement recognizes the nature of the pilots work.

i. This Agreement covers all classified and unclassified Pilots (IFR, VFR) at Operating Bases in the Ministry of Natural Resources although specific application of the provisions is outlined below.

ii. In recognition of the fact that Pilots assigned to operating bases may operate under irregular hours of work necessitated by the Ministry’s role in air transport, the following conditions apply:

The 1988 Float Agreement sets out the Normal Hours of Work in Article 1 and the Pilots’ Work Schedule during fire season in Article 2 as follows:.

Article 1 Normal Work Schedule

1.1 Where Air Service operating conditions permit a normal pre-scheduled 40 hour work week, the appropriate provisions of the Public Service act and regulations and the Working Conditions Agreement will apply. (Personnel at operating bases where a normal work week will be in effect will be advised).

1.2 The work week will be 5 consecutive days of work and 2 consecutive days off.

1.3 There will be 30 days advance notice of the work schedule with the possible exceptions of the initial period.

1.4 If it is necessary that Pilots work on the sixth or seventh day or a statutory holiday, other than during the fire season, they will receive time off at one and one-half times the number of hours worked with a minimum credit of 8 hours. If time off is not granted with mutual consent prior to March 31 of the following calendar year, they will be paid one and one-half times their basic hourly rate of all accrued hours.

Article 2 Work Schedule – Fire Season

2.1 Pilots assigned to fire duties will have a pre-scheduled 5 day work week and a daily schedule of 10 am to 6 pm during the fire season. The hours in a day could be more or less than 8 hours. If it is necessary that Pilots work on the sixth or seventh day, or statutory holiday, they will receive time off at one and one-half times the number of hours worked with a minimum credit of 8 hours. If time off is not granted by the end of the fire season, they will be paid one and one-half times their basic hourly rate for all accrued hours. The payroll for this time is not be submitted within one month after the end of the fire season. If however, they prefer time off and it can be granted before March 31st of the following calendar year, then time off may be granted.

2.1.2 The definition of “assigned to fire and related duties.” For the purpose of this agreement means:

1. While on red alert for fixed wing aircraft

2. While on yellow or red alert for helicopters

3. When dispatched to a forest fire

4. When ferrying to position for fire deployment

5. When assigned to fire transport (of crews and/or equipment

6. When assigned to reconnaissance, birddog, or fire detection (after 8 hours in a day)

2.1.3 When assigned to the duties outlined in Article 2.1.2, Articles 13.7.2 and 14.1 of the Collective Agreement with respect to Working Conditions and Employee Benefits shall apply.

2.2 At the beginning of the fiscal year, classified Pilots assigned to Moosonee, Malton, Algonquin Park and Quetico Park operating bases will be credited with eight (8) days leave. All other classified Pilots will be credited with five (5) days leave. The extra days are being granted to compensate for the flexibility of the work period and must be used by March 31. Days not used by March 31 will be paid on a day-for-day basis.

The 1988 Float Agreement refers to Article 14.1 of the Collective Agreement. Article 14.1 is identical to Article UN 9.1 CALL BACK with the exception of the addition of reference to both genders of employees. Entitlement to call-back pay was expanded in the 2002-2004 Unified Collective Agreement to Article UN 9.2 include contacts that would be considered call-back to work if such contact occurred outside the place of work.

The relevant provisions of the Collective Agreement are as follows:

Article UN 9 CALL BACK (former Article 14.1 of the Collective Agreement) states:

UN 9.1 An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours pay at one and on-half (1 ½) time his or her basic hourly rate.

UN 9.2 Where an employee is contacted by the Employer outside the workplace prior to the starting time of his or her next scheduled shift, in circumstances where such contact is considered to be a “call back to work” but the employee is not required to physically attend at the workplace, the employee shall be paid a minimum of four (4) hours’ of pay at one and on-half (1 ½) times his or her basic hourly rate. The initial call and any subsequent calls during that same hour-hour period, will be treated as a single “call back to work” for pay purposes.

UN 2 – HOURS OF WORK

UN 2.3 SCHEDULE 6

The normal hours of work for employees on this schedule shall be a minimum of thirty-six and one quarter (36 ¼) hours per week.

UN 8 – OVERTIME

UN 8.2.2

In this Article, “overtime”, means an unauthorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) off.

Decision

Call-back pay was provided for in Article 14.1 of the Collective Agreement in force at the time the 1988 Float Agreement was negotiated. This article recognized that if a party had left their place of work and was required to go back to work before his or her next scheduled shift than the employee would be compensated for that work.

The jurisprudence recognized that the purpose of call back pay is to compensate the employee for the inconvenience of having to disrupt his personal time to attend to work required by his employer outside his working hours. (Baker/Elliott) (supra), Elliot (supra)). Accordingly, call-back pay, is different from traditional overtime payments, as it does not compensate the employee for the hours actually worked, but for the inconvenience of being called out to work on the employee’s personal time. (Elliott)(supra), (Union Grievance)(supra).

Call-back pay, however, was not available to all employees as one of the elements required by Article 14.1 was that the employees had to be called back to work “prior to their next scheduled shift”. As a result, Schedule 6 employees were often excluded from receiving call back pay, as the nature of their work was based on a minimum of 36 ¼ hours per week and work as they are needed, which results in irregular hours of work and not scheduled shifts (Baker/Elliott)(supra), (James)(supra), (Henderson)(supra).

The jurisprudence also evolved to recognize that the nature of many occupations covered by Schedule 6 employees is such that the work that the employee customarily does during usual work hours is often not at their workplace, and it was done from the home or outside the workplace ((Mitchell)(supra), (Northeast Mental Health Centre)(supra),(Greater Vancouver (supra)). Accordingly, as the inconvenience caused to the employee during the employee’s personal time is the basis upon which call-back pay was given, the application of call-back pay was expanded to cover those situations where the employee was called to perform services provided to the employer outside their working hours.

The Union and the Employer in the Collective Agreement recognized the nature of this work and included Article UN 9.2 in the Collective Agreement, to cover situations where the employee is required to leave work and then perform work which would otherwise be call-back work, if it were performed at the workplace.

The question then is, are the pilots entitled to call-back pay.

As held in Baker/Elliott (supra), Article 14.1 applies to the “generic” employee, and it is not limited or applicable to any specific class of employee. As followed and held by Vice-Chair Abramsky in the James (supra) decisions, it is not the status of being a Schedule 6 employee that determines that the employee is entitled to call-back pay, but it depends upon the nature of their work and whether the fact situation meets the criteria set out in the collective agreement.

In order to be entitled to call-back pay the pilots must then meet the criteria set out in the Collective Agreement as amended by the 1988 Float Agreement.

Entitlement to call-back pay is set out in Article 2.1.3 of the 1988 Float Agreement. However, as Article 2.1.3 refers to Article 14.1 and did not include the circumstances set out in UN 9.2, call-back pay is not available to the pilots in the circumstances set out in Article UN 9.2. I recognize that in 1988 when the Float Agreement was negotiated that there were different circumstances. The pilots only had to report to work during the fire seasons and on red alerts, and the parties agreed in the 1988 Float Agreement to provide call-back pay as set out in Article 14.1, only if the pilot was on red alert or if the pilot was performing the active fire duties set out in subsections 1) through 6) of Article 2.1.3.

I also recognize that in 2002 and 2003, that there was a dispute between these parties as to the appropriate agreements that would cover the working conditions, and that issue was not determined until my decision of January 2005. Nevertheless, I do not have any jurisdiction to amend the agreements reached by the parties to apply articles which the parties did not negotiate and include in their agreements. My jurisdiction lies only to the implementation of the applicable agreements to the circumstances.

As Article 14.1 has been carried on in Article UN 9.1, in order to be entitled to call back pay the pilots must meet the criteria set out therein, which is 1) to have left work, 2) to have been called back to work, and 3) to be called back prior to their next scheduled shift.

The pilots were able to meet these criteria. They were off work, as the pilots had to call in to the Alert Line on their last day off work.

The Employer considered calling into the Alert Line as work. Carl Hansson, testified that the Employer recognized that work was being performed by the pilots when they were calling into the Alert Line, and the pilots were told to keep track of the time they took to make the calls, and they were compensated for doing so at a premium pay of 1.5 hours.

There was an issue as to whether it was a requirement to call into the Alert Line. Prior to 2002, calling in to the Alert Line was voluntary. The pilots called in to know where they had to be the next day. It assisted them in planning their own lives, to be at work on time, and to help them plan how long they would likely be away. However, in 2002 calling to the Alert Line became mandatory, even though the pilots were required to report to their place of work on a Blue, Yellow alert and Red alert, or even when there was a No Alert status.

The pilots were advised in a letter dated June 7, 2002 that they were required to call into the Alert Line for their alert status, and to confirm their assignment and location, and in a memo dated July 2, 2002, that in the event that they did not call in as required they were subject to discipline for insubordination. The Employer’s witnesses testified that the Employer would not know whether a pilot had or had not called in to the Alert Line, unless the pilot did not report to work. The Employer’s witnesses also testified that they had always found that the pilots acted in a professional manner and reported to work as required, and the Employer had no intention to discipline the pilots unless they did not report to work. These factors however, do not have a bearing on the perceived and actual requirement by the pilots that they had to call in to the Alert Line on the last day off prior to returning to work.

The parties had just ended a labour dispute and the Employer recognized that there were tensions between the parties, and stated that the letters and memorandum to the pilots setting out their working conditions was to clarify their expectations and to inform the pilots of their obligations. The pilots were not told that discipline would only arise if they failed to report to work. On the contrary, the pilots were notified that they would be disciplined for failure to call in to the Alert Line. As a result, I find that the pilots were obliged to call in the Alert Line on the last day of their days off prior to returning to work.

I also find that the pilots did have a “next scheduled shift”. The pilots were similar to other Schedule 6 employees, such as the inspectors in Baker/Elliot(supra) in that their normal hours of work were expressed as a minimum of 36 ¼ hours per week. There was also no regularity to their start times and ending times during the fire season. As such the parties recognized in the Preamble to the 1988 Float Agreement, that the pilots may work irregular hours and further, the irregularity of those hours was reflected in the schedule for the fire season in Article 2.1 when it stated “the hours in a day could be more or less than 8 hours.” The pilots were also similar to the inspectors, in that their overtime during fire season was close to 20% of their regular hours.

However, unlike the inspectors in the Baker/Elliot (supra) decision, the 1988 Float Agreement set out the Normal Work Schedule in Article 1, and set out the weekly pattern and a daily schedule of 10 a.m. to 6 p.m. and advised the pilots in Article 2.1 that they would have a pre-scheduled 5 day work week and a daily schedule of 10 a.m. to 6 p.m., although their hours in a day could be more or less than 8 hours. The pilots were then given schedules in advance of the month’s work, and the schedules set out the days that they worked and when they were off. The schedules set out their start times, whether they were to start at 9:00 a.m., 10:00 a.m., 11:00 a.m., or 12:00 p.m., depending upon the location of the pilots’ base and the month they were working. Therefore, although the Employer characterized the pilots’ hours of work as not being on a fixed schedule, the evidence was to the contrary as seen by the schedules given to the pilots. In addition, Carl Hansson acknowledged that despite the characterization of the Employer in its letter to the pilots setting out their working conditions, the pilots were in fact on fixed schedules.

The only evidence that was presented on the pilots’ hours of work outside the fire season was found in Article 1 of the 1988 Float Agreement which set out the Normal Hours of Work and its scheduled hours of 10:00 a.m. to 6 p.m. which, without any evidence to the contrary, also shows a fixed schedule during the non-fire season.

Meeting the criteria in Article 14.1 or UN 9.1 however, does not of itself entitle the pilot to call-back pay. The pilots must also meet the criteria set out in Article 2.1.2 of the 1988 Float Agreement, as Article 2.1.2 provides the basis for receiving call-back pay. Therefore, the compensation in this instance is not for the work of calling into the Alert Line and for the inconvenience of doing so, but it is when the pilot is required to perform the duties outlined in subsections 1) through 6) of Article 2.1.2. outside the working hours, that is, they must be called by the Employer after the pilots have left work to perform the particular active fire duties set out in subsections 2) through 6) or to be on red alert as set out in subsection 1). In addition, Mr. Hansson did not say in his testimony that calling into the Alert Line is a fire related duty. Even if Mr. Hansson had testified as suggested by the Union, I would not have found such evidence sufficiently persuasive to change my findings and interpretation of the agreements.

In conclusion, I do not find that the pilots were entitled to receive call-back pay for calling into the Alert Line on the day off prior to their next scheduled shift.

As a result of my determination, it is unnecessary to make any determination on the issue of estoppel.

I was asked by the Union that in the alternative, the pilots were claiming overtime pay for the time required to call in. The Employer conceded at the closing that they were not clawing back any payments made to the pilots for calling into the Alert Line. The evidence was that the pilots were asked to record the time that they spent, for calling into the line, and the Employer paid the pilots one half hour at premium time, unless they had been shown at the time that it took longer than that, at which point they were paid for an hour’s time. There was no agreement that this was properly characterized as overtime.

In order to avoid any confusion, I find that the time that the pilots spent calling into the line is overtime and is covered by Article UN 8 2.2. I have heard no evidence as to whether the payments were properly or improperly paid as overtime, and remain seized on the implementation of this aspect of the decision.

Dated at Toronto, this 14th day of July 2008