GSB#2008-1533

UNION#2008-0623-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (MacLachlan)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Omar Shahab Ministry of Government Services Labour Practice Group Counsel

HEARING

April 22, 2010.

Decision

1In a grievance dated June 2, 2008, Mr. D. MacLachlan alleges that the Employer has contravened a section of the overtime provision in the Collective Agreement. The dispute between the parties is about whether Mr. MacLachlan is entitled to compensating time off as provided for in article UN 8.7.1b of the Collective Agreement. The Employer takes the position that this article does not apply in these circumstances for a number of reasons. After reviewing the evidence and considering the submissions of counsel, I am satisfied that the Employer’s conclusion that Mr. MacLachlan is not entitled to compensating time off in the circumstances has considerable merit.

2Mr. MacLachlan is a Pilot 4 in the Ministry’s Aviation Services, with a home base at the Sudbury Airport. He is a Schedule 6 employee. He commenced his employment as an unclassified pilot with the Ministry in 1999 and became a classified employee in 2006. During the fire season he spends the majority of his time on firefighting and related duties, primarily engaged in flying water bombers. Pilots are provided with a work schedule at least a month in advance. They are scheduled to work 10 days on, followed by 4 days off. The schedule does not refer to the hours of work in a day, or to a particular start or end time. Due to their irregular working conditions, pilots are guaranteed pay based on 36.25 hours a week and 7.25 hours a day. The hours in a day a pilot actually works could be more or less than 7.25 hours, depending on the forest fire situation at any given time. Whether a pilot will report for work or how long he will actually work is dictated by the fire alert system. The fire alert system has red, yellow and blue alerts. A red alert represents the highest state of readiness. A pilot assigned a red alert must be at the base and available for immediate deployment upon notification. On a blue alert, there is no identified need for deployment on that day. A blue alert has a number of levels and for this alert the pilot exercises discretion as to whether to report, but must report when contacted within the time allowed. While on a blue alert, the pilot must be contactable and be in condition to work.

3Pilots engaged in firefighting or related duties are paid on an overtime basis for hours worked prior to 10.00 a.m. and for hours worked after 6.00 p.m. From this and on the basis of what he was told when he started with the Ministry, Mr. MacLachlan believes that his workday starts at 10.00 a.m., lasts for 8 hours and that he is paid for 7.25 of those 8 hours. Mr. MacLachlan receives his assignment in the morning of a scheduled work day. He agrees that the time he actually reports to his work location and the number of hours of actually performs work on any given day fluctuates. Mr. MacLachlan testified that he reports to the work site at 10.00 a.m. less than half of the time. If engaged in firefighting or related duties, he could work well beyond 6.00 p.m. When on a particular level of blue alert, he will rarely and sometimes never report to his base. Quite simply, when he will actually report for work, when his work day will end and whether he will be required to report for work is all is contingent on his daily assignment, which in turn is dependent on the forest fire situation at any given time.

[4] Mr. MacLachlan’s claim for compensating time off is for the reporting period from May 5, 2008 to May 18, 2008 and is based on his understanding that he has an 8 hour work day starting at 10.00 a.m.. He claims 45 minutes for each of the 6 days during that period for which he worked a red alert. His claim is based on the time he worked from 5.15 p.m. to 6.00 p.m., given that this is the time beyond the 7.25 hours. On May 17, 2008, he was assigned a blue alert from 1.00 p.m. to 8.00 p.m., an assignment for which he did not report to his base. For this assignment, he claims entitlement to 2.45 hours of compensating time off based on the time from 5.15 p.m. to 8.00 p.m.

5The terms and conditions for pilots are contained in more than one document. In addition to the relevant Collective Agreement, there is also a Memorandum executed by the parties in March of 1995, commonly referred to as the Float Agreement. The Float Agreement is a document that amends the Collective Agreement and contains some of the significant terms that govern the employment of pilots. The Float Agreement is operative for one year and is automatically renewed for annual periods unless a party gives notice in writing to terminate the agreement.

[6] As noted above, the dispute here is about whether a term of the Collective Agreement providing for compensating time off, namely article UN 8.7.1b, applies in these circumstances. Among the number of defenses it advances, the Employer takes the position that this article of the Collective Agreement does not apply because of the operation of the Float Agreement. Alternatively, the Employer argues that even if I were to conclude that the Float Agreement does not preclude Mr. MacLachlan from relying on article UN 8.7.1b, the conditions for entitlement set out in the article itself are not satisfied in this instance. In particular, the Employer references the requirement that entitlement depends on a Schedule 6 employee working a “regularly scheduled work day” and argues that Mr. MacLachlan does not have a regularly scheduled work day. The Union has a different perspective on these issues. It argues that the Float Agreement does not trump the compensating time off provision in UN 8 and that Mr. MacLachlan does have a regularly scheduled work day. During the submissions of counsel, I was referred to the following decisions: Re Elementary Teachers’ Federation of Ontario and Lambton Kent District School Board (2007), 164 L.A.C. (4th) 430 (Etherington); Re M & I Air Systems Engineering and C.A.W.-Canada, Local 252 (2006), 157 L.A.C. (4th) 414 (Herman); Re Wexford Inc. and Canadian Union of Public Employees, Local 3791 (2001), 2001 CanLII 33933 (ON LA), 96 L.A.C. (4th) 153 (Albertyn); Re Cardinal Transportation British Columbia Inc. and Canadian Union of Public Employees, Local 561 (1997), 1997 CanLII 25143 (BC LA), 62 L.A.C. (4th) 230 (Devine); Re DDM Plastics Inc. and International Assn. of Machinists and Aerospace Workers, Local 2792 (2000), 2000 CanLII 29501 (ON LA), 88 L.A.C. (4th) 299 (Solomatenko); OPSEU (Candler et al) and Ministry of Education (1988), GSB No. 2338/87 (Roberts); OPSEU (Wingfield) and Ministry of Natural Resources (2009), GSB No. 2008-2303 (Petryshen); OPSEU (Hymers et al.) and Ministry of Natural Resources (2008), GSB Nos. 2002-0101 et al. (Kirkwood); OPSEU (Group Grievance) and Ministry of the Attorney General (2002), GSB No. 0683/99 (Abramsky); and, OPSEU (Union) and Ontario Science Centre (2010), GSB No. 2007-2412 (Dissanayake).

7UN8, the overtime provision, contains the following two relevant sections:

ARTICLE UN 8 – OVERTIME

UN8.7.1b Effective August 15, 2005 employees in Schedule 6 who perform authorized work in excess of 7.25 hours on a regular scheduled work day shall receive:

(a) compensating leave of one (1) hour for each hour worked between 36.25 and 44 hours per work week, in respect to the total hours worked during the week on regularly scheduled work days;

UN8.7.5 Notwithstanding Article UN 8.7.1 and UN 13.7 (Holiday Payment), employees who are in classifications assigned to Schedule 6 and who are assigned to forest fire fighting or related duties, shall be paid one and one-half (1½) times the employee’s basic hourly rate, to be calculated on the basis of thirty-six and one-quarter (36¼) hours per week, for all such work after eight (8) hours in a 24 hour period.

8The relevant provisions of the Float Agreement are as follows:

Preamble: …

iii. Unless otherwise provided for by this Agreement, all appropriate provisions of the Public Service Act and regulations and the Collective Agreement shall apply

HOURS OF WORK AND WORK SCHEDULE

1.1 The normal hours of work are based on a minimum of 36.25 hours per week. The hours in a day may be more or less than 7.5.

PREMIUM TIME

2.1 When assigned to fire fighting or related duties, article 13.7.2 and article 14.1 of the Collective Agreement with respect to Working Conditions and Employee Benefits, shall apply.

Normal work day – the hours in a day could be more or less than 7.25 hours. Fire fighting or related duties performed prior to 1000 and after 1800 shall be paid at a rate of one and a half (1½) times the basic hourly rate for all such hours worked.

Scheduled day off – Fire fighting or related duties performed on a scheduled day off shall be paid at a rate of one and a half (1½) times the basic hourly rate for all hours worked, with a minimum credit of 7.5 hours.

Statutory holiday – Fire fighting or related duties performed on a statutory holiday shall be paid at a rate of two (2) times the basic hourly rate for all hours worked, with a minimum credit of 7.25 hours.

2.1.1 Payment of overtime shall be made within the time limits set out in Article 13.3.2 of the Collective Agreement.

2.1.2 Where there is mutual agreement, a pilot may receive compensating leave in lieu of pay at the overtime rate.

2.2 When assigned to duties other than those covered in article 2.1 above, pilots shall accrue compensating leave as follows:

Scheduled Day Off – duties performed on a scheduled day off shall be compensated at a rate of one and one half (1½) times all hours worked, with a minimum credit of 7.5 hours.

Statutory Holiday – duties performed on a statutory holiday shall be compensated at a rate of two (2) times all hours worked with a minimum credit of 7.25 hours.

2.2.1 If time off is not granted with mutual consent prior to March 31, any accumulated compensating leave will be paid at the basic hourly rate in effect at that date.

2.3 The conversion of accrued hours to equivalent days shall be determined by dividing the accrued hours by 7.25.

9In addressing the merits of this grievance, I find it unnecessary to deal with all of issues raised by counsel. I agree with Employer counsel’s submission with respect to the effect of the operation of the Float Agreement in this instance. There is no dispute that the claim being made by Mr. MacLachlan for compensating time off is not supported by a provision in the Float Agreement. His claim can only be supported by relying on UN 8.7.1b contained in the Collective Agreement. In clause iii of the preamble of the Float Agreement, the parties specifically address when the terms of the Collective Agreement shall apply. Clause iii provides that the Collective Agreement will apply “unless otherwise provided for by this Agreement”. In essence, clause iii indicates that the Collective Agreement does not apply when the Float Agreement contains a provision that addresses the subject matter. The provision in the Collective Agreement relied on by the Union is found within an overtime provision. As set out above, the Float Agreement also contains an overtime provision headed “Premium Time”. It provides that firefighting or related duties performed prior to 10.00 a.m. and after 6.00 p.m. shall be paid at the overtime rate for all hours worked. Such duties performed on a scheduled day off and on a holiday are compensated with a minimum credit of 7.25 hours, in addition to the relevant overtime premium for all hours worked. Section 2.1.2 addresses compensating leave in lieu of pay at the overtime rate. Section 2.2 sets out when pilots shall accrue compensating leave when not assigned firefighting or related duties. A review of the Float Agreement illustrates that the subject matter of overtime, including compensating time off, is addressed in that document. In other words, the subject of overtime is otherwise provided for in the Float Agreement, with the result that any terms in the Collective Agreement dealing with the same subject do not apply.

10In reaching the above result, I considered the Union’s submission that UN 8.7.1b was introduced into the Collective Agreement after the parties entered into the Float Agreement in 1995 and therefore could not have been a matter covered by the Float Agreement. As Employer counsel noted however, the Float Agreement has been effectively renewed every year since 1995. In any event, the Union’s submission is based on too narrow an interpretation of clause iii. It does not matter what specific changes or additions are made to the overtime provision in the Collective Agreement. Any changes or additions cannot have application to pilots since the Float Agreement already addresses the Employer’s obligations with respect to overtime, including compensating leave.

11I also agree with the submission that Mr. MacLachlan cannot benefit from UN 8.7.1b even if the operation of the Float Agreement did not preclude him from doing so. This is so because he does not have a “regularly scheduled work day”. As set out previously, UN 8.7.1b provides that Schedule 6 employees can receive compensating leave when they perform “authorized work in excess of 7.25 hours on a regularly scheduled work day…” In the Ontario Science Centre decision, supra, the Union challenged the way in which the Employer paid overtime. The Employer relied on a section of the overtime provision which applied “where employees do not have regularly scheduled work days”. The Union argued that the Employer could not rely on this section of the overtime provision because the employees did have a regularly scheduled work day. The issue for the Board to decide then was whether the employees had a regularly scheduled work day based on the facts of that case. The facts were that work schedules with specified hours were posted in advance. However, due to the nature of the business, deviation from the posted schedule was common and “the posted hours were not adhered to on an ongoing and consistent basis”. Even though employees worked on days scheduled, their actual hours of work often did not correspond to the posted hours. On the basis of these facts, Vice-Chair Dissanayake concluded that the employees did not have regularly scheduled work days.

12Whether a pilot has a regularly scheduled work day is a question of fact. In this case, the pilots are provided with a schedule outlining their days of work and days off. As the Vice-Chair noted in the Ontario Science Centre, it would be difficult for a workplace to function without some form of work schedule, but the presence of an advance schedule is not sufficient to establish the existence of a regular work day. The schedule the pilots receive does not specify a start or an end time. Even if the schedule did specify these matters, it would be virtually meaningless given the irregular hours they work. Although Mr. MacLachlan believes he has a scheduled 8 hour day that starts at 10.00 and ends at 6.00 p.m., the reality is that there is no regularity to a pilots actual work day. It is common for them to start and end their work day at different times and, with respect to blue alerts, it is often the case that a pilot will not even report for work. The facts in this case clearly establish that the pilots covered by the Float Agreement do not have a “regularly scheduled work day” and for this reason alone they cannot benefit from UN 8.7.1b.

13I will address one other issue. Another condition in UN 8.7.1b is that the Schedule 6 employee “perform authorized work in excess of 7.25 hours…”. Mr. MacLachlan’s claim for May 17, 2008, concerns a blue alert assignment from 1.00 p.m. to 8.00 p.m. In making his claim, Mr. MacLachlan again relies on his belief that he starts his day at 10.00 a.m. In my view, the focus must be on what his actual assignment was for May 17, 2008. Even if one assumes that he performed authorized work on this blue alert, the assignment on that day was only for 7 hours. Therefore, his claim for compensating leave for May 17, 2008, fails as well because he did not work in excess of 7.25 hours. I note that the Employer wished to reserve on its position that a blue alert assignment could not trigger UN 8.7.1b.

14For the foregoing reasons, Mr. MacLachlan is not entitled to compensating time off pursuant to article UN 8.7.1b. His grievance dated June 2, 2008, is hereby dismissed.