Ontario Public Service Employees Union (Wingfield) v. The Crown in Right of Ontario (Ministry of Natural Resources), 2009 CanLII 59142

GSB#2008-2303

UNION#2008-0727-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wingfield)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Tim Hannigan Counsel Ryder Wright Blair & Holmes LLP

FOR THE EMPLOYER

Omar Shahab Counsel Ministry of Government Services

HEARING

April 8, 2009

DECISION

1In a grievance dated August 22, 2008, Mr. K. Wingfield, a CL-415 pilot, claims that the Employer contravened the Collective Agreement on two occasions when it did not pay him call back pay. Although counsel indicated that issues such as past practice, estoppel or waiver may have to be addressed before finalizing this grievance, the parties agreed at this stage to deal only with the issue of whether Mr. Wingfield was entitled to call back pay based on an interpretation of the Collective Agreement as amended by a Memorandum of Understanding that contains the CL 415 Pilot/Co-Pilot Agreement (“the Pilot Agreement”). There was little disagreement about the facts giving rise to the grievance. However, there was considerable disagreement about the interpretation of certain provisions governing the terms and conditions of employment of CL-415 pilots. Mr. Wingfield was the only witness.

2Mr. Wingfield started working for the Ministry as a pilot on May 19, 1989. He performs primarily fire related duties in the Ministry’s fire branch. He and a co-pilot operate a heavy water bomber that is used primarily for fire suppression. Pilots operate under extended hours of work due to the Ministry’s role in aerial fire fighting. Since April of 2004 to the present, the terms and conditions of pilots have been governed by the Collective Agreement as amended by the Pilot Agreement. More particularly, the terms of the Pilot Agreement apply to pilots and, unless the Pilot Agreement specifies otherwise, the articles of Schedule A in the Collective Agreement apply. Schedule A provides for the averaging of hours of work over the calendar year in circumstances where employees will work more hours per week at regularly recurring times. The significant features of the Pilot Agreement for our purposes are as follows:

2. The employees and positions governed by this agreement shall be transferred from Hours of Work Schedule 6 to Schedule A Averaging Hours of Work.

3. Unless otherwise specified by this agreement, all relevant articles of the OPSEU Collective Agreement which apply to Schedule A, described above will apply to CL 415 Pilots/Co-Pilots.

4. The hours of work will correspond to a thirty-six and one quarter (36.25) hour week, which averaged over the twelve-month period, equals 1885 hours (referred to herein as “the annual work requirement”). The annual work requirement will be reduced by the annual entitlement for statutory holidays and annual vacation credits. The averaging period will correspond to the fiscal year (April 1 – March 31).

5. CL 415 Pilots/Co-Pilots will normally work a prescheduled/regular 10 consecutive days and receive 4 consecutive days off for a period of approximately 30 consecutive weeks during the fire season (April 1 to approximately October 31).

6. The CL 415 pilots/Co-Pilots shall be prescheduled and paid for a minimum number of hours of work as follows:

“fire season” (April 1 to approximately October 31: 12 hours per day (normally 9 a.m. to 9 p.m.).

“off-season” (approximately November 1 to March 31) – 7.25 hours per day.

7. Notwithstanding Paragraph (6), the required availability of CL 415 Pilots/Co-Pilots during the fire season (April 1 to approximately October 31) will be dictated by the fire alert system and operational requirements. CL 415 Pilots/Co-pilots must be contactable and available during scheduled working hours.

8. For days that are prescheduled/regular workdays and are not holidays, all hours worked will be accumulated at straight time and credited towards the yearly annual work requirement.

9. For each holiday, whether worked or not, employees will be credited with 7.25 hours towards the annual work requirement. In accordance with Appendix UN 1 of the collective agreement all hours worked on a holiday included in Article 47 shall be paid at the rate of two (2) times the basic hourly rate that the Pilot/Co-Pilot was receiving when the holiday was worked.

10. For days that are neither prescheduled/regular work days nor holidays, in accordance with Appendix UN1 of the Collective Agreement, all hours worked, including crewing an aircraft, on a day that is not a regular working day for the CL 415 Pilot/Co-Pilot shall be treated as overtime (at one and a half times), and based on the rate the Pilot/Co-Pilot was receiving when the overtime was worked.

3Mr. Wingfield confirmed many of the features of the Pilot Agreement during his testimony. Pilots work a compressed work year. Apart from some training, pilots work during the fire season, which is usually from April 1 to October 31 in any given year. The other months of the year are considered the off season. Pilots are paid their regular wages throughout the entire year based on a 36.25 hour week.

4Usually in March, the pilots are provided with a work schedule for the fire season. The schedule consists of 10 days of work with 4 days off. Each work day consists of 12 hours, from 9:00 a.m. to 9:00 p.m. Pilots are paid for these hours and are required to be available and contactable during the scheduled hours. What typically happens is that the pilot will turn on his Employer issued cell phone by 9:00 a.m. on a scheduled work day. Whether a pilot will actually report for work is dictated by the fire alert system. The pilot will call the Alert Line sometime after 5:30 p.m. and a recorded massage will provide the pilot with information about the assignment for the following day, including the alert status, which ranges from a Red Alert to a Green Alert. Red Alert represents the highest state of readiness, requiring a pilot to be readily available at a base for immediate dispatch. A Yellow Alert does not require the pilot to be at a base, but the pilot must be immediately contactable so that the aircraft must be off the base (wheels up) within 30 minutes after contact. With a Blue Alert, the pilot must report anywhere from 1 to 4 hours from contact. With a Green Alert, a pilot would have a duty free day or assigned different roles.

5Mr. Wingfield indicated that there are occasions when a pilot would be asked to work past 9:00 p.m. If a pilot works until 10:00 p.m., the pilot is not paid overtime for that additional hour, but simply accrues one additional hour towards the annual work requirement. A pilot who works on a scheduled day off is paid 1½ times the regular rate, with a 12 hour minimum.

6Mr. Wingfield agreed with a number of propositions put to him during his cross-examination. He agreed that there is an inherent unpredictability about what level of alert and the need for a pilot to report to a base on any given day since these matters are dependant on the risk of fire. Mr. Wingfield indicated that the percentage of time a pilot would be under a Red Alert and therefore required to be physically present at a base varies from year to year. He testified that one year the percentage was 80%, but that last year it was 50%. Mr. Wingfield also agreed that a pilot who is not at a base during scheduled hours when the alert level is less than a Red Alert could do what he wants with his time, as long as he is ready to report when contacted and ready to go.

7For our purposes, the relevant call back provision in Part A of the Collective Agreement is article UN9.1. It reads as follows:

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 one-half (1½ ) times his or her basic hourly rate.

8Mr. Wingfield indicated that a call back situation arises very rarely. He believes that in the two instances where he made a call back claim that the conditions in article UN9.1 had been met. It is unnecessary to set out the precise details giving rise to the two call back claims. On July 21, 2008, Mr. Wingfield started work at 8:00 a.m. after being called in early. On August 9, 2008, he started work at 7:00 a.m. at Dryden so that he would arrive at another base on time to commence his assigned duties. In each of these instances, Mr. Wingfield’s claim for 6 hours pay pursuant to article UN9.1 because he was required to work prior to 9:00 a.m. was denied by the Employer.

9As noted previously, the Collective Agreement as amended by the Pilot Agreement has applied since April of 2004. Prior to the Pilot Agreement, the parties had entered into other agreements to amend the collective agreement. For the period from at least 1988-1989, pilots were covered by the collective agreement as amended by a Memorandum of Understanding (“the Float Agreement”). Pilots operating under the Float Agreement were covered by Schedule 6. The Float Agreement in section 2.1.3 specifically provided that the call back provision would apply to pilots. A Minute of Understanding (“the CL-215 Agreement”) amending the collective agreement was in effect between 1991 until at least 2001, covering pilots. This agreement transferred pilots from Schedule 6 to Schedule A. Section 4 of the CL-215 Agreement specifically noted that the call back provision applies to pilots and that the premium compensation earned would be accumulated and credited towards the annual work requirement.

10The Employer’s primary position is that the Pilot Agreement explicitly excludes any entitlement to call back pay. In the alternative, if the Pilot Agreement by itself does not exclude entitlement to call back pay, the Employer takes the position that Mr. Wingfield has not met all of the conditions in article UN9.1. In particular, the Employer argued that Mr. Wingfield was not called back to work before his “next scheduled shift” because he does not have a “scheduled shift”. In taking issue with these positions, the Union argued that article UN9.1 does apply because the Pilot Agreement does not specify otherwise. The Union also submitted that Mr. Wingfield has met all of the conditions in article UN9.1 and in particular argued that he did have a “scheduled shift”. The majority of the decisions referred to by counsel addressed the interpretation of the words “scheduled shift”.

11Counsel for the Union relied on the following decisions: OPSEU (Couture) v. Ontario (Ministry of Government Services), [2009] O.G.S.B.A. No. 43 (Dissanayake); OPSEU (Hymers et al.) and Ministry of Natural Resources (2008), GSB No. 2002-0104 et al. (Kirkwood); OPSEU (Frame) and Ontario Clean Water Agency (2005), GSB No. 2004-1103 (Leighton); OPSEU (Delaquis) and Ministry of the Environment (1993), GSB No. 1599/92 (Tacon); and, OPSEU v. Northeast Mental Health Centre, [2004] O.L.A.A. No. 673 (Whitaker).

[12] In addition to some decisions relied on by the Union, the Employer’s book of authorities contained the following decisions: Re British Columbia v. British Columbia Government and Service Employees’ Union (2003), 2003 CanLII 89634 (BC LA), 122 L.A.C. (4^th) 201 (Germaine); Re Canada Post and C.U.P.W. (1989), 1989 CanLII 9327 (CA LA), 3 L.A.C. (4^th) 444 (Weatherill); Re Westwind Regional Division No. 9 and Alberta Teachers’ Association (2000), 2000 CanLII 50195 (AB GAA), 85 L.A.C. (4^th) 129 (Ponak); Re M & I Air Systems Engineering and C.A.W.- Canada, Local 252 (2006), 157 L.A.C. (4^th) 414 (Herman); Re Waxford Inc. and CUPE, Local 3791 (2001), 2001 CanLII 33933 (ON LA), 96 L.A.C. (4^th) 153 (Albertyn); Re Cardinal Transportation British Columbia Inc. and CUPE, Local 561 (1997), 1997 CanLII 25143 (BC LA), 62 L.A.C. (4^th) 230 (Devine); Re DDM Plastics and International Assn. of Machinists and Aerospace Workers, Local 2792 (2000), 2000 CanLII 29501 (ON LA), 88 L.A.C. (4^th) 299 (Solomatenko); Re Elementary Teachers’ Federation of Ontario and Lambton Kent District School Board (2007), 164 L.A.C. (4^th) 70 (Etherington); OPSEU (Candler et al.) and Ministry of Education (1988), GSB No. 2338/87 et al. (Roberts); OPSEU (Krete) and Ministry of Labour (1989), GSB No. 1055/88 (Verity); OPSEU (Baker/Elliott) and Ministry of Labour (1990), GSB No. 90/89 (Kirkwood); OPSEU (Hill) and Ministry of Natural Resources (1991), GSB No. 1134/90 (Wright) and OPSEU (James et al.) and Ministry of Finance (2004), GSB No. 2003-0232 (Abramsky).

13The first issue counsel addressed is whether the language of the Pilot Agreement itself disentitles pilots to call back pay. After considering the terms of the Pilot Agreement and the submissions of counsel relating thereto, it is my conclusion the position taken by the Employer on this issue has considerable merit, for the following reasons.

14Counsel for the Employer noted that the earlier agreements covering pilots which amended the collective agreement specifically referenced the inclusion of the call back provision and he argued that the absence of such a reference in the Pilot Agreement suggested that the parties did not intend the call back provision to apply. Although the absence of a similar specific provision in the Pilot Agreement in circumstances where previous amending agreements specifically noted that call back applied may be some indication that it was not intended to apply under the Pilot Agreement, I agree with counsel for the Union that this is not determinative. What is more significant is the meaning of the words the parties used in the Pilot Agreement rather than the fact that they used different language in their latest amending agreement. Although they must be viewed in the context of the entire agreement, the provisions of the Pilot Agreement that are relevant to this issue are paragraph 8 and the opening words of paragraph 3.

15The two work assignments for which Mr. Wingfield is claiming the call back premium occurred on prescheduled/regular workdays and not a holiday. To reiterate, paragraph 8 provides that on such days “…all hours worked will be accumulated at straight time and credited towards the yearly annual work requirement.” The plain meaning of these words is that any hours worked, not just the hours worked between 9:00 a.m. and 9:00 p.m., will be accumulated at straight time. Just as the hours a pilot might work after 9:00 p.m. on a regular workday are accumulated at straight time, paragraph 8 effectively indicates that any hours worked before 9:00 a.m. are treated in a similar manner. Contrary to the Union’s position that the provision deals only with the accumulation of hours towards the annual work requirement and not compensation, paragraph 8 addresses the treatment of “all hours worked” on a regular workday and makes clear that such hours will be compensated at straight time, with the result that no overtime or premium is applicable for those worked hours. This interpretation of paragraph 8 means that Mr. Wingfield is not entitled to the call back premium for the one hour he worked before 9:00 a.m. on July 21, 2008 and the two hours he worked before 9:00 a.m. on August 9, 2008. He was only entitled to have these hours accumulated at straight time and credited towards the yearly annual work requirement.

16Counsel for the Union argued that the words “Unless otherwise specified by this agreement” in paragraph 3 of the Pilot Agreement means that there must be a specific indication that a term of the Collective Agreement did not apply. He submitted that the absence of a specific provision indicating that the call back provision did not apply means that UN9.1 applies to pilots. I agree with counsel for the Employer that the opening words of paragraph 3 merely require that a provision in the Pilot Agreement address the issue of entitlement and do not require a specific indication that a particular article of the Collective Agreement does not apply. As I indicated previously, paragraph 8 does deal with the issue of entitlement to call back pay. In my view, it is “otherwise specified” in paragraph 8 of the Pilot Agreement that UN9.1 does not apply to pilots. It would be unusual to ignore the clear words of paragraph 8 and to uphold this grievance simply because the parties did not specifically indicate that the call back provision did not apply.

17Given my conclusion that the Pilot Agreement itself disentitles pilots to call back pay, it is unnecessary to address the issue of whether pilots work a “scheduled shift” as those words are used in article UN9.1.

18For the foregoing reasons, Mr. Wingfield’s grievance dated August 22, 2008, is hereby dismissed.