Docket: A-246-16
Citation:
2017 FCA 100
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CORAM:
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TRUDEL J.A.
SCOTT J.A.
GLEASON J.A.
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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CANADIAN
FEDERAL PILOTS ASSOCIATION
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on May
10, 2017).
GLEASON J.A.
[1]
The applicant seeks to set aside the June 2,
2016 award of the Public Service Labour Relations and Employment Board (the
PSLREB or the Board) in Canadian Federal Pilots Association v. Treasury
Board, 2016 PSLREB 46, 127 C.L.A.S. 289. In that award, the Board allowed
the respondent union’s grievance contesting the way in which the employer compensated
flight followers for scheduled after-hours and week-end work.
[2]
The work in question involves monitoring the
progress of Transport Canada’s Flight Operations Service aircraft that are
outside the range of terrestrial radar and radio communication when they are
flying over the North Atlantic Ocean. Flight followers are scheduled to perform
this work and when so assigned are required to check every 30 minutes for a
computer-generated e-mail containing a flight status report that is generated via
satellite and GPS communication systems onboard the aircraft. Flight followers
can perform this task on their smartphones. They also must be available to
receive emergency communications from the aircraft and to conduct required
follow-ups in the event of a problem.
[3]
The employer was paying standby pay to the
flight followers for each shift they were so assigned (payable at the rate of a
single hour’s pay for each 8 hours when on assignment) as well as overtime for
the time it took to receive and review the e-mails and, where applicable, to
take calls and conduct follow-ups if the employees worked more than half an
hour.
[4]
In the award under review, the Board found this
to be impermissible and instead determined that the flight followers were entitled
to be paid overtime at the applicable collective agreement rates for the entire
duration of their assignments, including during periods when they were not
actively performing tasks. The PSLREB reasoned that, as the employees were
scheduled and required to work every 30 minutes during these assignments, they
could not said to be on stand-by. Rather, as the work was scheduled and performed,
the Board found it to be overtime.
[5]
The Board further held that the quantum of the
overtime payment was governed by article 19.03 of the applicable
collective agreement, which provides in relevant part that “all calculations for overtime shall be based on each
completed one-half (1/2) hour”. The Board reasoned that this provision
meant that employees were entitled to overtime for the entire duration of the
assignment as they were working each 30 minutes and therefore part of every
half hour, which was to be rounded up under the article in question.
[6]
The applicant argues that the Board’s decision
should be set aside for either or both of the following reasons: first, because
the Board denied it procedural fairness in reaching an interpretation of
article 19.03 of the collective agreement that the employer had not
contemplated and that had not been discussed during the hearing; and second, because
the interpretation given to article 19.03 is unreasonable.
[7]
In our view, neither point has merit.
[8]
Insofar as concerns the procedural fairness
point, as the parties did not agree to have the Board bifurcate the hearing
between a determination on the merits and remedy, the issue of remedy was in
play and it was therefore incumbent on the parties to make all their
submissions on remedy. The fact that the employer may not have considered that
the remedy selected was a possibility or that the particular remedy was not
requested by the union does not mean that the PSLREB was required to canvass
the parties for their views on the remedy before issuing its award. The
situation is distinguishable from that in Arsenault v. Canada (Attorney
General), 2016 FCA 179 relied upon by the applicant as there, unlike here,
the Board departed from an interpretation that the parties had agreed to. Here,
in the absence of any agreement as to remedy, it was open to the Board to
fashion a remedy without first running it by the parties.
[9]
As for the merits of the Board’s interpretation,
it is beyond dispute that decisions like the present that involve collective
agreement interpretation are entitled to considerable deference as collective
agreement interpretation is at the core of the PSLREB’s mandate and expertise: Communications,
Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper,
Ltd., 2013 SCC 34 at paras. 3 and 7, [2013] 2 S.C.R. 458; Delios v.
Canada (Attorney General), 2015 FCA 117 at paras. 19-21, 472 N.R. 171.
[10]
Despite the able argument of counsel for the
applicant, we see nothing unreasonable in the PSLREB’s award in the instant
case. It was reasonable to conclude that employees are not merely on stand-by
when there is a certainty that they are required to work. Nor is the quantum of
overtime pay awarded unreasonable in light of the requirements of article 19.03
of the collective agreement, particularly as the flight followers are required
to stay alert for the duration of the assignment to perform the required tasks.
In short, it was open to the PSLREB in the unique circumstances of this case, to
find that article 19.03 required rounding up of time worked.
[11]
Contrary to the submissions of the applicant, we
see nothing in the Board’s award in this case that would require that it be
applied to any circumstance other than the unique circumstances of the flight
followers that were before the Board in the present case.
[12]
We therefore dismiss this application with costs
fixed in the all-inclusive amount of $2,500.00.
“Mary J.L. Gleason”
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