FPSLREB Decisions

I. Grievances referred to adjudication

1 The grievors, whose names appear on the cover of this decision, hold various positions in the Technical Services section of the Department of the Environment (“the Department”). From September 10 to 16, 2004, they filed grievances challenging the refusal to grant them the allowance provided for in the National Joint Council Directive entitled First Aid to the General Public - Allowance for Employees (“the first aid allowance directive”) (Exhibit F-1). The grievors are covered by the collective agreement between the Treasury Board (“the employer”) and the Public Service Alliance of Canada for the Technical Services Group bargaining unit (expiry date: June 21, 2003) (“the collective agreement”) (Exhibit F-2). Clause 7.03(a) of the collective agreement incorporates the first aid allowance directive. The grievors ask that they be paid the allowance retroactively.

2 The employer dismissed the grievors’ grievances at the third level of the grievance process on March 22, 2006. The grievors referred their grievances to adjudication on April 20, 2006.

3 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“the former Act”).

II. Summary of the evidence

4 Daniel Dubé, the Department’s coordinator of technical services, testified for the grievors. Richard Dupuis, the Department’s national head of aviation compliance standards, testified for the employer. The grievors filed seven exhibits, and the employer filed six.

5 The parties’ representatives agreed that the grievors all perform similar work and that the evidence adduced at the hearing applies to all the grievances covered by this decision. In particular, the parties’ representatives agreed that the parts of Mr. Dubé’s work description (Exhibit F-4) to which they were going to refer me were worded identically to the other grievors’ work descriptions.

6 Mr. Dubé testified that he has worked for the Department since 1978. He has been the coordinator of technical services for the past year, but he was a technical services specialist when the grievances were filed. Technical services specialists inspect, verify and maintain weather observation stations, as indicated in the work description for his position (Exhibit F-4).

7 Mr. Dubé has held various positions with his bargaining agent, including being a member of the bargaining team for the collective agreement for his bargaining unit from 2003 to 2005 and from 2007 until the present.

8 Mr. Dubé worked at the Department’s Montreal office when the grievances were filed. His job required him to travel to various remote areas of Canada, including the Far North. Mr. Dubé travels an average of 60 days per year; however, he can travel up to 85 days per year. He normally travels alone. He travels with another employee from the Department once or twice per year.

9 Mr. Dubé explained that weather stations are run by the Department or organizations with which the Department has entered into an agreement, such as NAV CANADA or the Kativik Regional Government (KRG).

10 Mr. Dubé tested and verified weather stations with the help of local employees, who were possibly employees of other organizations that ran the stations, employees of airlines such as Air Inuit or Air Labrador or resource persons living in the area who had been recruited for that purpose. Mr. Dubé occasionally dealt with local employees without going to the area. For example, he could ask security guards at the Baie-Comeau airport to put a switch back into position, avoiding a costly trip.

11 According to Mr. Dubé, the persons he worked with at weather stations were not federal public service employees and so were not subject to the same restrictions that he was. For example, he was subject to various rules on the political activities of federal public service employees, while the persons he worked with at weather stations were not. Mr. Dubé also had to obey various rules on the confidentiality of information, while the employees he worked with in remote areas did not have to comply with those rules.

12 Mr. Dubé stated that he had received first aid training from the Department and that he had assumed that he had to provide first aid to employees who injured themselves.

13 Mr. Dubé described an incident during which he provided first aid. The Department had installed equipment that measured air quality at a research station run by the University of Laval in the Montmorency forest. Students visited that location every summer. During one visit, a student got her foot caught between some stones by the shore of a river. Mr. Dubé, with the help of others, freed the student’s foot using a shovel and a pick. An ambulance then took the student to a health care institution.

14 On cross-examination, Mr. Dubé stated that he knows Mr. Dupuis because he worked under him and another manager from 1990 to 1996. Mr. Dubé stated that Mr. Dupuis never asked him to provide first aid to the public. In fact, Mr. Dupuis never discussed the subject with him.

15 The employer’s representative drew Mr. Dubé’s attention to the following extracts from Stéphane Turgeon’s work description. He is an investigator and a coordinator of natural resources conservation with the Department (Exhibit E-1A, pages 4 and 5):

[Translation]

…

Ensure the health and safety of staff, hunters and the general public in the Cap Tourmente National Wildlife Area (about 55 000 people per year).

Be able to respond to an employee or visitor who has had an accident, feels ill or is in distress by providing first aid.

…

Ensure the health and safety of staff and the general public by maintaining a safe environment for personnel and visitors.

…

The employer’s representative asked Mr. Dubé whether Mr. Turgeon’s work description clearly states that he has to provide first aid to the public. Mr. Dubé replied in the affirmative.

16 Mr. Dubé also admitted that the work descriptions of Marc Patry, a joinery maintenance technician with the Department (Exhibit E-1B), and of Alain Tremblay, a mechanical maintenance technician with the Department (Exhibit E-1C), specify that they must provide first aid to the public. Mr. Patry’s work description (Exhibit E-1B, page 3) states that he must do the following:

[Translation]

…

Be able to provide first aid and emergency care, in the forest and in isolated locations, to employees and members of the public at the NWA.

…

Mr. Tremblay’s work description (Exhibit E-1C, pages 2 and 3) states that he must do the following:

[Translation]

…

Provide first aid and CPR to visitors in emergency situations.

…

Be able to provide first aid and emergency care, in the forest and in isolated locations, to employees and members of the public at the NWA.

…

17 Mr. Dubé stated that he had given the employer his comments when the grievors’ work descriptions were drawn up.

18 In re-examination, Mr. Dubé stated that his work description implicitly requires him to provide first aid to the general public. It states that he must provide first aid to his colleagues and workmates in an emergency (Exhibit F-4, page 5). The “workmates” are not employees of the Department. They are often employees of other organizations running weather stations or resource persons whom he sometimes calls on to help him with his work.

19 Mr. Dupuis testified that he has worked for the Department since 1974. He has been in his current position since August 2008. From 1995 to 2008, and specifically when the grievances were filed, he was a technical services manager with seven technical services specialists under him, including Mr. Dubé. Those specialists handled quality control of weather station equipment.

20 Technical services specialists usually travel alone. They may visit a weather station in groups of two or three if the Department considers the work risky.

21 Public access to weather stations varies from place to place. Most weather stations are in controlled access parts of airports, to which the public has no access. Other weather stations are fenced and monitored by radar or camera and allow no public access. However, in some locations, the weather station is not fenced and can be accessed by the public.

22 Mr. Dupuis testified that technical services specialists could be called to work in remote areas where obtaining medical care could be difficult. They could travel to such areas with colleagues from other public service bargaining units. Technical services specialists could have to provide first aid to their colleagues if necessary. Mr. Dupuis referred me to Mr. Dubé’s work description, which requires him to “[translation] [p]rovide first aid to colleagues and workmates in emergencies that arise in the office or in the field…” (Exhibit F-4, page 5). However, technical services specialists are not required to provide first aid to persons who do not work for the public service, such as persons working for contractors.

23 Mr. Dupuis added that the grievors are not required to provide first aid to members of the public. If a person is injured, the grievors can provide first aid, just as any good citizen would, but they are not required to by the employer. For example, in the case described by Mr. Dubé, the Department could not have taken disciplinary action against Mr. Dubé if he had not provided first aid to the student who got her foot caught between some stones. Mr. Dupuis added that he would never have been informed of such an incident since Mr. Dubé was not required to provide first aid to the general public. Mr. Dupuis never heard about the accident described by Mr. Dubé, who was under his authority at that time.

24 Mr. Dupuis stated that an incident report is drawn up when an employee is injured. To his knowledge, an accident in a remote area has never occurred. Mr. Dupuis has seen only one incident report, and it concerned an incident at the Montreal regional office.

25 Mr. Dupuis testified that three of the Department’s employees are entitled to the first aid allowance, namely, Mr. Turgeon, Mr. Patry and Mr. Tremblay. Those employees work in Cap Tourmente, a tourist site visited by 50 000 to 60 000 people per year. Since it is so busy, there is a risk of tourists injuring themselves. Those three employees’ work descriptions clearly state that they must provide first aid to the general public (Exhibits E-1A, E-1B and E-1C).

26 Mr. Dupuis was involved in drafting the grievors’ work descriptions, including Mr. Dubé’s. Mr. Dupuis was part of the work description review committee. The grievors’ work descriptions were reviewed after the Universal Classification Standard came into effect. The new work descriptions were often 35 to 50 pages long. In those descriptions, the review committee set out in black and white every single task performed by the grievors. If a task is not explicitly specified, it means that the incumbent does not perform it.

27 On cross-examination, Mr. Dupuis stated that persons working for NAV CANADA and the KRG are “members of the public.”

28 The grievors’ representative asked Mr. Dupuis whether the Treasury Board’s terms and conditions of employment (Exhibit F-6) apply to employees of NAV CANADA and the KRG. Mr. Dupuis answered that they do not because there is no employer-employee relationship between the Treasury Board and the employees of those organizations.

III. Summary of the arguments

A. For the grievors

29 The grievors argue that they are entitled to the allowance provided for in the first aid allowance directive because they meet the requirements that it sets out. Section 5.1 of the first aid allowance directive provides that employees must meet four requirements to qualify for the allowance (Exhibit F-1), as follows:

…

1. be Public Service employees within the meaning of the Public Service Labour Relations Act; (revised August 2, 2005)
2. be formally required by the department to be available on a regular basis to provide, in addition to their regular duties, first aid to the general public;
3. be employed at a location where there is a lack of readily available emergency medical treatment facilities in the immediate area (a radius of 10 kilometres); and
4. be required by, and at the expense of, the department to undertake and complete first aid training (St-John Ambulance Standard Certificate); and maintain such level of first aid capability.

30 The grievors argue that they meet the four requirements. The employer did not dispute that they meet the first, third and fourth requirements. With respect to the second requirement, the grievors submit that they are implicitly required to provide first aid to members of the public because they are required to undertake and complete first aid training, as indicated in Mr. Dubé’s work description (Exhibit F-4, page 10), as follows:

[Translation]

…

Knowledge of first aid and resuscitation techniques and of specialized safety procedures, such as survival techniques, tower climbing and emergency aircraft evacuation, required to ensure the incumbent’s own safety and that of his or her co-workers.

…

31 Mr. Dubé’s work description recognizes that he performs risky work and requires him to provide first aid when an accident occurs (Exhibit F-4, page 5), as follows:

[Translation]

…

Work in two-­person teams (buddy system) when the work requires. Teams are required for certain tasks, such as work in an isolated location, on instruments installed on towers or other high structures or involving greater risks (electrolysers). Emergency first aid and resuscitation techniques must be provided when accidents occur, especially when the work is performed in a remote area…

Provide first aid to colleagues and workmates in emergencies that arise in the office or in the field. Such emergencies are rare.

…

32 The risks faced by the grievors are also set out at pages 32 and 33 of Mr. Dubé’s work description (Exhibit F-4), as follows:

[Translation]

…

There is a risk of accidents that may cause serious injury or even death when performing installation work on construction sites… .

…

There is a risk of serious injury or death by electrocution when exposed to high-voltage systems (over 400 volts) if the appropriate procedures are not properly followed… .

The locations of certain stations or instrument systems (wharves, roofs of buildings, metal structures, etc.) or climbing anemometer towers of 10 to 13 metres expose specialists to a risk of drowning or serious injury if they fall. The risks are high for short periods of time.

…

33 The grievors argue that it is wrong to believe that the Department could not take disciplinary action against them if they do not provide first aid to the general public. If an employee displays a lack of judgment by refusing to provide first aid, the Department can penalize him or her.

34 The grievors further argue that they are required to provide first aid to the “general public” because they are required to provide first aid to employees of NAV CANADA and other organizations with which they deal at weather stations and to the resource persons they have recruited in remote areas. Those persons are part of the “general public” because they are not part of the “Public Service” as defined in subsection 2(1) of the former Act and because they are not subject to the Treasury Board’s terms and conditions of employment (Exhibit F-6).

35 The grievors noted that Mr. Dupuis admitted in his testimony that the employees of NAV CANADA and other organizations that run weather stations are “members of the public.”

36 Therefore, the grievors ask that the employer pay them the first aid allowance retroactively.

B. For the employer

37 The employer submits that the grievors are not entitled to the allowance provided for in the first aid allowance directive because, in two respects, they do not meet the second requirement set out in that directive. First, they do not provide first aid to the “general public.” Second, they are not required by the employer to provide such first aid.

38 The employees of organizations with whom the grievors work are not members of the “general public” within the meaning of the first aid allowance directive. According to Le Nouveau Petit Robert, the term grand public (the French equivalent of “general public”) refers to “[translation] … the bulk or major part of the public …” (Exhibit E-2A). Black’s Law Dictionary, Fifth Edition (Exhibit E-2B), states that the term “public” refers to the inhabitants of a state, nation, or community or the community at large. The “general public” is a broad concept that means everyday men and women. The contractors’ employees and resource persons with whom the grievors work at weather stations are not everyday men and women.

39 According to the employer, the grievors have not established that the employer asked them to provide first aid to the general public. The grievors must provide first aid to their colleagues since they must travel with other employees of the Department to isolated places where medical facilities are not available. That is why they have to undertake and complete first aid training. However, the employer has never asked them to provide first aid to persons other than Department employees. Mr. Dubé even admitted in his testimony that Mr. Dupuis had never asked him to provide first aid to the general public.

40 The employer pointed out that, if it had wanted the grievors to provide first aid to the general public, it would have indicated as much in their work descriptions, as it did in the work descriptions of Mr. Turgeon (Exhibit E-1A), Mr. Patry (Exhibit E-1B) and Mr. Tremblay (Exhibit E-1C). The reason the employer did not impose such an obligation in the grievors’ work descriptions is that it simply did not want to require them to provide first aid to the general public.

41 Therefore, the employer submits that it rightly refused to pay the grievors the first aid allowance.

IV. Reasons

42 The grievors each referred a grievance to adjudication under paragraph 92(1)(a) of the former Act, which reads as follows:

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

…

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

43 This case concerns the employer’s refusal to pay the grievors the allowance provided for in the first aid allowance directive. That directive states that the employer must pay an allowance to employees who are formally required to provide first aid to the general public. The employer submits that the grievors are not required to provide first aid to the general public. The grievors submit that they are implicitly required to do so. They also point out that they are required to provide first aid to the general public because they have to provide first aid to persons working for organizations that are not part of the public service.

44 In a grievance on the interpretation of a collective agreement or, as with these grievances, a document incorporated into a collective agreement, the burden of proof is on the grievors. They must prove, on a preponderance of evidence that they are entitled to the first aid allowance.

45 My role as an adjudicator is to interpret the provisions of the first aid allowance directive that establish the requirements for qualifying for that allowance. I must give clear terms their ordinary meaning. When the terms of the first aid allowance directive are not clear, I must seek the intention of its authors by analyzing its context.

46 Section 5.1 of the first aid allowance directive establishes four requirements to qualify for the allowance. The employer does not dispute that the grievors meet three of those requirements, but it argues that they do not meet the following requirement (Exhibit F-1, page 2):

…

2. be formally required by the department to be available on a regular basis to provide, in addition to their regular duties, first aid to the general public;

…

47 In my opinion, the grievors are not required to provide first aid to the “general public.” According to Le Nouveau Petit Robert, the term grand public (the French equivalent of “general public”) refers to “[translation] … the bulk or major part of the public… .” That expression refers to the population in general. The grievors’ duty to provide first aid is much more limited and specific, as shown by the following extracts from Mr. Dubé’s work description (Exhibit F-4, page 5):

[Translation]

…

Work in two-­person teams (buddy system) when the work requires. Teams are required for certain tasks, such as work in an isolated location, on instruments installed on towers or other high structures or involving greater risks (electrolysers). Emergency first aid and resuscitation techniques must be provided when accidents occur, especially when the work is performed in a remote area. The incumbent must also be prepared to provide first aid to co-workers who may be in a dangerous position or who may be injured during work performed on masts of ships, anemometer towers or other structures… .

Provide first aid to colleagues and workmates in emergencies that arise in the office or in the field. Such emergencies are rare.

…

[Emphasis added]

48 The parties agreed that Mr. Dubé’s work description is worded the same way as those of the other grievors. The extracts show that the grievors must provide first aid to their “co-workers,” “colleagues” and “workmates” if an accident occurs. In my opinion, those terms refer to persons with whom the grievors work. The term
“co-worker” refers expressly to the concept of “work.” Le Nouveau Petit Robert defines the term collègue (the French equivalent of “colleague”) as “[translation] … a person who holds the same job as one or more other persons who may or may not be part of the same administration or business… .” The same dictionary defines the term camarade (the French equivalent of “friend”)as a person who shares the same activities as another. Therefore, the grievors are required to provide first aid to persons with whom they have to perform work-related tasks.

49 Providing first aid to persons with whom one works is different from providing first aid to the “general public”; the two concepts are not the same. The expression “general public” found in the first aid allowance directive encompasses many more people than the terms “co-workers,” “colleagues” and “workmates” found in the grievors’ work descriptions. The “general public” is the population in general, as pointed out in the English version of the first aid allowance directive, which uses that term, while “coworkers,” “colleagues” and “workmates” make up only part of that population. The scope of the duty is not the same in both cases.

50 In my opinion, had the employer wished for the grievors to provide first aid to the general public, it would have indicated it in their work descriptions, as it did in those of Mr. Turgeon, Mr. Patry and Mr. Tremblay (Exhibits E-1A, E-1B and E-1C). Mr. Turgeon’s work description, for example, clearly states that he is required to provide first aid to the general public (Exhibit E-1A, pages 4 and 5):

[Translation]

…

Ensure the health and safety of staff, hunters and the general public in the Cap Tourmente National Wildlife Area (about 55 000 people per year)

Be able to respond to an employee or visitor who has had an accident, feels ill or is in distress by providing first aid.

…

Ensure the health and safety of staff and the general public by maintaining a safe environment for personnel and visitors.

…

[Emphasis added]

51 The employer included that obligation in the work descriptions of Mr. Turgeon, Mr. Patry and Mr. Tremblay because those three employees may have to provide first aid to members of the general public due to the nature of their workplace, a tourist attraction that thousands of people visit every year. The grievors do not deal with the general public.

52 The grievors submit that the “co-workers,” “colleagues” and “workmates” to whom their work descriptions require them to provide first aid, such as NAV CANADA employees, are part of the general public because they are not part of the “Public Service” within the meaning of subsection 2(1) of the former Act. That subsection lists the organizations that are part of the Public Service, and the above-mentioned organizations are not included. It is true that employees of those organizations are not part of the “Public Service,” but, as I have already stated, entitlement to the first aid allowance is conditional on having a duty to provide first aid to the general public and not to a limited part of that public, such as co-workers.

53 The grievors argue that they are “implicitly” required to provide first aid to the general public. They rely on the fact that they have to undertake and complete first aid training. In my opinion, there is no evidence that they are implicitly required to provide first aid to the general public. The grievors must undertake and complete first aid training because they are required to provide first aid to their colleagues.

54 Mr. Dubé testified that he had provided first aid to a student who had gotten her foot caught between some stones. That student was obviously part of the “general public.” What Mr. Dubé did was commendable, but it was not a job requirement, and to be entitled to the allowance provided for in the first aid allowance directive, an employee must be required by the employer to provide first aid.

55 Therefore, in summary, the grievors are not entitled to the allowance provided for in the first aid allowance directive because the employer does not require them to provide first aid to the general public, contrary to what the first aid allowance directive requires.

56 For all of the above reasons, I make the following order:

V. Order

57 The grievances are dismissed.

May 5, 2009.

PSLRB Translation

John A. Mooney,
adjudicator