FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Rita Anderson, Brian Burr, Rick Chan, Ronald Crist, Andrew Davies, Brad Frazer, Todd Généreux, Michel Gingras, Scott Haukaas, John Holland, Kirk Jacobson, Rod Logan, Drew Natland, Sandra Nelson, Richard Purdy, David Ramalho, Sean Reardon, Richard Riding and Kelly Tyler (“the grievors”) filed individual grievances in March 2006 alleging a violation by the Department of National Defence (“the DND” or “the employer”) of clause 62.01 of the collective agreement. The applicable collective agreement is the one signed on March 14, 2005 between the Public Service Alliance of Canada and the Treasury Board for the Technical Services Group, which expired on June 21, 2007 (“the collective agreement”).

2 Clause 62.01 of the collective agreement reads as follows:

62.01 An employee certified pursuant to the Transportation of Dangerous Goods Act and who is assigned the responsibility for packaging and labelling of Dangerous Goods for shipping in accordance with the above Act, shall receive a daily allowance of three dollars and fifty cents ($3.50) for each day he or she is required to package and label Dangerous Goods for shipping, to a maximum of seventy-five dollars ($75) in a month where the employee maintains such certification.

3 Both parties made brief opening remarks. Counsel for the employer called three witnesses and entered four exhibits. The grievors’ representative called 6 witnesses and entered 10 exhibits.

4 The parties entered on consent the following Agreed Statement of Facts (Exhibit A-1):

…

1. All civilian GT-2, GT-3 and GT-4 classified personnel working at CFAD Rocky Point have completed and passed or been deemed to have completed and passed the technical proficiency level 4 course.
2. Mr. D.A. Ramalho, a civilian GT-2, received his initial “3K” training and qualification on 23-Sep-1994 and as of January 30, 2009, his qualification was current and due to expire on 04-Oct-2009.
3. Mr. R.W. Purdy, a civilian GT-2, received his initial “3K” training and qualification on 22-Jun-2000 and as of January 30, 2009, his qualification was current and due to expire on 28-Jun-2009.
4. Mr. R.B. Frazer, a civilian GT-2, received his initial “3K” training and qualification on 29-Jun-2007 and as of January 30, 2009, his qualification was current and due to expire on 28-Jun-2009.
5. Mr. D.B. Natland, a civilian GT-2, received his initial “3K” training and qualification on 11-Dec-2003. He was not “3K” certified for the period of December 2007 to December 2008. As of January 30, 2009, his qualification was current and due to expire on 02-Dec-2010.
6. Mr. S.K. Haukaas, a civilian GT-2, received his initial “3K” training and qualification on 06-Oct-1999 and as of January 30, 2009, his qualification had expired on 31-Aug-2007.
7. Mrs. S.L. Nelson, a civilian GT-3 received her initial “3K” training and qualification on 12 –Oct-2005 and as of January 30, 2009, her qualification was current and due to expire on 04-Oct-2009.
8. Mr. J.L.M. Gingras, a civilian GT-4, received his initial “3K” training and qualification on 16-Oct-1996 and as of January 30, 2009, his qualification was current and due to expire on 17-Oct-2009.
9. Mr. K.L. Jacobson, a civilian GT-4, received his initial “3K” training and qualification on 25-Jun-1997 and as of January 30, 2009, his qualification had expired on 27-Mar-2008.
10. Mr. J.L.M. Gingras received the Dangerous Goods Allowance for the days on which he completed a weighbill [sic] as follows: for 2005 - $91.00, for 2006 - $217.00, for 2007 - $10.50, for 2008 - $21.00; for a total allowance paid of $339.50.
11. Mr. S. Haukaas received the Dangerous Goods Allowance for the days on which he completed a weighbill as follows: for 2005 - $252.00, for 2006 - $623.00, for 2007 - $185.50; for a total allowance paid of $1,060.50.
12. Mr. D.B. Natland received the Dangerous Goods Allowance for the days on which he completed a weighbill as follows: for 2006 - $49.00; for a total allowance paid of $49.00.
13. Mr. D.A. Ramalho received the Dangerous Goods Allowance for the days on which he completed a weighbill as follows: for 2008 - $168.00; for a total allowance paid of $168.00.
14. Other than the individuals listed above, no other grievors were 3K certified and no other grievors were paid any Dangerous Goods Allowance.
15. The parties may put in such other evidence as deemed necessary to prove their case.

…

II. Summary of the evidence

A. For the grievors

5 Michel Gingras joined the Canadian Forces in 1973, serving three years in the army and in the airborne regiment. Before he retired from the military, he worked as an ammunition technician in Germany, the United Kingdom and at various locations in Canada. In 1999, he joined the DND as a civilian ammunition technician, at the GT-02 group and level, in Rocky Point, British Columbia. In 2002, his substantive position was Civilian Ammunition Technical Supervisor, classified GT-03. In 2006, he was appointed to the position of Civilian Ammunition Senior Supervisor, classified GT-04.

6 When Mr. Gingras filed his grievance on March 14, 2006, he was classified at the GT-03 group and level. He confirmed that in November 2007 he received the $3.50 allowance provided in clause 62.01 of the collective agreement when he signed waybills, which is mandatory before shipping ammunition.

7 Mr. Gingras testified that, when he worked as a shipper, he had to verify that boxes or pallets had the appropriate labelling displayed, which included the United Nations numbers, stock and lot numbers, etc. The packaging and labelling would be completed by his co-workers at the depot. He stated, “I just sign the waybill.”

8 Mr. Gingras testified that he performed the key activities and possessed the knowledge and skills found in the GT-03 work description (Exhibit G-1, tab 13).

9 The following are the key activities, knowledge and skills reflected in the GT-03 work description:

Key Activities – Activités principales

TECHNICALLY PREPARES AMMUNITION, EXPLOSIVES, MISSILES AND TORPEDOES FOR SHIPPING.

Receives AND PREPARES AMMUNITION, EXPLOSIVES, MISSILES AND TORPEDOES FOR Warehousing AND STORAGE. **NOTE** THESE SPECIALISED ITEMS ARE SPECIFICALLY STORED IN A HIGHLY TECHNICAL MANNER, BY QUANTITY OF EXPLOSIVES IN EACH ITEM, CHEMICAL MAKE-UP OF EACH ITEM SO THEY ARE COMPATIBLE TO BE STORED TOGETHER AND TOTAL EXPLOSIVE QUANTITY SO THEY CANNOT EXCEED THE LICENSED QUANTITY OF EACH MAGAZINE (WAREHOUSE). EACH EXPLOSIVE AREA CAN COMPRISE OF UP TO 40 OR MORE MAGAZINES (WAREHOUSES)

*A* shipping and receiving knowledge to technically unpack, pack or repack dangerous goods such as ammunition, explosives, MISSILES AND TORPEDOES in preparation for shipping and storage using strapping and shrink wrap machines, way scales, stencil making tools, hand and power tools, labeling machines, dunnaging methods, sealing and painting equipment.

*A* hazardous material handling techniques, including spill procedures, to prevent and minimize environmental contamination and personal risk such as when fueling or defueling torpedoes.

*C* sound knowledge of techniques used for transporting dangerous goods, to safely move ammunition, EXPLOSIVES, MISSILES AND TORPEDOES nationally and internationally.

SHIPPING DANGEROUS GOODS BETWEEN DEPARTMENTS:

CANADIAN PRIVATE AND PUBLIC SECTOR

CONTACTS WITHIN THE PRIVATE SECTOR (SNC IT) TO ARRANGE FOR SHIPPING OF AMMUNITION, EXPLOSIVES, MISSILES AND TORPEDOES TO OPERATIONAL THEATRES AND RESUPPLY NATO SHIPS DURING JOINT OPERATIONS OR EXERCISES. THESES [sic] EXERCISES SOMETIMES INVOLVE MULTI-NATIONAL NON NATO COUNTRIES.

Transportation of Dangerous Goods Act and regulations, International Air Transportation Association regulations, International Civil Aviation Organization regulations, International Maritime Dangerous Goods Code, and military movement regulations to ensure compliance when packaging and shipping ammunition and explosives by land, sea and air.

10 Mr. Gingras confirmed that he was familiar with the Transportation of Dangerous Goods Act 1992, S.C. 1992, c.34 (“the TDGA”) (Exhibit G-1, tab 15), since he completed a three-week training course at Canadian Forces Base Borden (CFB Borden) and was therefore recognized as having “3K” certification. Mr. Gingras confirmed that “3K” is a slang term used at the DND. The DND Certificate of Training is the proper term. Every employee with a “3K” certificate must be recertified two years from the date he or she is first qualified. If the employee does not recertify within the two years, the employee must return to CFB Borden to requalify, which entails retaking the three-week course.

11 Mr. Gingras was referred by his representative to the following definitions found in the TDGA. Mr. Gingras confirmed that he was familiar with them (Exhibit G-1, tab 15).

…

“dangerous goods” means a product, substance, or organism included by its nature or by the regulations in any of the classes listed in the schedule;

“handling” means loading, unloading, packing or unpacking dangerous goods in a means of containment for the purposes of, in the course of or following transportation and includes storing them in the course of transportation;

…

“safety mark” includes a design, symbol, device, sign, label, placard, letter, word, number or abbreviation, or any combination of these things, that is to be displayed

(a) on dangerous goods, on means of containment or transport used in handling, offering for transport or transporting dangerous goods, or at facilities used in those activities, and

(b) to show the nature of the danger or to indicate compliance with the safety standards prescribed for the means of containment or transport or the facilities;

…

SAFETY REQUIREMENTS, STANDARDS AND MARKS

5. No person shall handle, offer for transport, transport or import any dangerous goods unless

(a) the person complies with all applicable prescribed safety requirements;

(b) the goods are accompanied by all applicable prescribed documents; and

(c) the means of containment and transport comply with all applicable prescribed safety standards and display all applicable prescribed safety marks.

…

12 When Mr. Gingras was referred to the consolidated Transportation of Dangerous Goods Regulations (“the Regulations”) SOR/2001-286 (Exhibit G-1, tab 16), he agreed that he was very familiar with them. He explained that an employee who has undergone the “3K” training is familiar with paragraphs 1.7 (a), (b) and (c), of the Regulations. However, an employee who has only taken the Technical Proficiency Level (TPL) training is familiar with only paragraphs 1.7 (a) and (b) of the Regulations. Paragraphs 1.7 (a), (b) and (c) read as follows:

1.7 Safety Requirements, Documents, Safety Marks

As provided for in section 5 of the Act, a person must not handle, offer for transport, transport or import dangerous goods unless

(a) the person complies with all applicable prescribed safety requirements;

(b) the dangerous goods are accompanied by all applicable prescribed documents; and

(c) the means of containment and transport comply with all applicable prescribed safety standards and display all applicable prescribed safety marks.

13 Mr. Gingras also confirmed that he was familiar with section 6.1 of the Regulations, which reads as follows:

6.1 Training Certificate Requirements

(1) A person who handles, offers for transport or transports dangerous goods must

(a) be adequately trained and hold a training certificate in accordance with this Part; or

(b) perform those activities in the presence and under the direct supervision of a person who is adequately trained and who holds a training certificate in accordance with this Part.

(2) An employer must not direct or allow an employee to handle, offer for transport or transport dangerous goods unless the employee

(a) is adequately trained and holds a training certificate in accordance with this Part; or

(b) performs those activities in the presence and under the direct supervision of a person who is adequately trained and who holds a training certificate in accordance with this Part.

14 Mr. Gingras testified that an employee at the GT group and level with a “3K” certification is adequately trained and meets all the criteria specified in paragraphs 6.2 (a) to (m) of the Regulations. However, an employee at the GT group and level with only TPL training is not adequately trained to meet the criteria found in paragraphs 6.2 (c) and (d). Section 6.2 reads as follows:

6.2 Adequate Training

A person is adequately trained if the person has a sound knowledge of all the topics listed in paragraphs (a) to (m) that relate directly to the person’s duties and to the dangerous goods the person is expected to handle, offer for transport or transport:

(a) the classification criteria and test methods in Part 2, Classification;

(b) shipping names;

(c) the use of Schedules 1, 2 and 3;

(d) the shipping document and train consist requirements in Part 3, Documentation;

(e) the dangerous goods safety marks requirements in Part 4, Dangerous Goods Safety Marks;

(f) the certification safety marks requirements, safety requirements and safety standards in Part 5, Means of Containment;

(g) the emergency response assistance plan requirements in Part 7, Emergency Response Assistance Plan;

(h) the report requirements in Part 8, Accidental Release and Imminent Accidental Release Report Requirements;

(i) safe handling and transportation practices for dangerous goods, including the characteristics of the dangerous goods;

(j) the proper use of any equipment used to handle or transport the dangerous goods;

(k) the reasonable emergency measures the person must take to reduce or eliminate any danger to public safety that results or may reasonably be expected to result from an accidental release of the dangerous goods;

(l) for air transport, the aspects of training set out in Chapter 4, Training, of Part 1, General, of the ICAO Technical Instructions for the persons named in that Chapter and the requirements in Part 12, Air, of these Regulations; and

The ICAO Technical Instructions require the approval of training programmes for air carriers. Information may be obtained from the Chief, Dangerous Goods Standards, Civil Aviation, Transport Canada.

(m) for marine transport, the requirements set our in the IMDG Code and the “Dangerous Goods Shipping Regulations”, as applicable, and the requirements in part 11, Marine, of these Regulations.

15 When referred to section 6.3 of the Regulations, Mr. Gingras stated that an employee can be trained to package and label but is issued a training certificate only if he or she performs shipping duties. Subsection 6.3(1) reads as follows:

6.3 Issuance and Contents of a Training Certificate

(1) An employer who has reasonable grounds to believe that an employee is adequately trained and will perform duties to which the training relates must issue a training certificate to the employee that includes the following information:

(a) the name and address of the place of business of the employer;

The place of business could be a local office, a regional office or a head office

(b) the employee’s name;

(c) the date the training certificate expires, preceded by the words “Expires on” or “Date d’expiration”; and

(d) the aspects of handling, offering for transport or transporting dangerous goods for which the employee is trained, including the specific topics set out in section 6.2

Examples of how aspects of training may be shown on a certificate are:

All aspects of handling and transporting chlorine

All aspects of transporting dangerous goods included in Class 1

All aspects of acceptance procedures for transporting by air

All aspects of handling and transporting propane by ship.

16 Mr. Gingras explained that Exhibit G-1, tabs 17 to 20, represents the course training standard, for TPL levels 1 to 4. An ammunition worker completes the necessary training for each TPL level and then writes two tests, and if he or she passes, the worker progresses to the next TPL level. Mr. Gingras stated that, at the GT-03 group and level, a level of training of TPL 4 is mandatory.

17 In cross-examination, Mr. Gingras agreed with counsel for the employer that the TPL training and the “3K” training are very different.

18 Mr. Gingras stated that he is required to carry his “3K” training certificate on his person when performing the duties of a shipper, as stated under the provisions of the Regulations.

19 Mr. Gingras noted that, when a pallet of dangerous goods that was ready to be shipped was not properly packaged or correctly labelled, he would return it to his co-workers to ensure that it met the provisions of the Regulations.

20 Mr. Gingras also agreed that he was legally liable if an accident occurred because a shipment was not packaged and labelled in accordance with the Regulations. As such, he was the one who signed the waybills.

21 Mr. Gingras stated that, when he signed the waybills, he was paid the $3.50 dangerous goods allowance found in clause 62.01 of the collective agreement. Between August 2005 and August 2006, he was paid the allowance for approximately 100 days.

22 In redirect, Mr. Gingras stated that, when he worked as a shipper, apart from signing the waybills, he also inspected the vehicles that were being used to ship the dangerous goods.

23 When asked by his representative if he signed a waybill when missiles or torpedoes were shipped from the magazine at the Canadian Forces Ammunition Depot (CFAD) Rocky Point to the Rocky Point jetty, where naval vessels are moored, Mr. Gingras stated that he did not. However, if ammunition were being shipped on a B.C. ferry, he would sign a waybill.

24 David Ramalho retired from the military in 1996 after 21 years as a naval officer. He joined the DND in 2001 as a civilian ammunition technician at the CFAD in Rocky Point.

25 On March 15, 2006, the date on which Mr. Ramalho filed his grievance, he was classified at the GT-02 group and level and possessed a “3K” training certificate, which he obtained after completing the three-week course at CFB Borden in Ontario. Mr. Romalho’s certification is valid until October 2009. He testified that the “3K” certification authorizes him to handle, offer for transport and transport dangerous goods. He testified that if he did not hold a valid “3K” certificate of training, he would not be qualified to work as a shipper. He noted that, at the time he filed his grievance, he was not working as a shipper. He referred to the GT-02 work description (Exhibit G-1, tab 12) and stated that it is generic and, as such, there is no mention of a shipper per se.

26 Mr. Ramalho testified that as a civilian ammunition technician his duties consisted, in part, of receiving, refurbishing, storing, inspecting, destroying (when necessary) and moving ammunition that was to be shipped by a qualified shipper. Ammunition in military ordinance may consist of bullets, torpedoes, missiles, explosives, bombs or grenades.

27 When referred to the GT-02 work description (Exhibit G-1, tab 12), Mr. Ramalho agreed with his representative that he performed the following duties or was aware of the requirement to perform them:

…

Key Activities – Activiés principales

TECHNICALLY PREPARES AMMUNITION, EXPLOSIVES, MISSILES AND TORPEDOES FOR SHIPPING

Receives AND PREPARES AMMUNITION, EXPLOSIVES, MISSILES AND TORPEDOES FOR Warehousing AND STORAGE.

Skill-Habiletés

Job Content Knowledge

THE WORK REQUIRES:

KNOWLEDGE NORMALLY ACQUIRED THROUGH SECONDARY HIGH SCHOOL EDUCATION OR EQUIVALENT, A 3 TO 4 YEAR RECOGNISED APPRENTICESHIP AND SUCCESSFUL COMPLETION OF REQUIRED THEORY AND PRACTICAL TECHNICAL TRADE TESTING TO REACH THE TECHNICAL PROFICIENCY LEVEL 4 (TPL), CERTIFICATION TO BECOME A CIVILIAN AMMUNITION TECHNICIAN.

…

*A* shipping and receiving knowledge to technically unpack, pack or repack dangerous goods such as ammunition, explosives, MISSILES AND TORPEDOES in preparation for shipping and storage using strapping and shrink wrap machines, way scales, stencil making tools, hand and power tools, labeling machines, dunnaging methods, sealing and painting equipment.

…

*C* sound knowledge of techniques used for transporting dangerous goods, to safely move ammunition, EXPLOSIVES, MISSILES AND TORPEDOES nationally and internationally.

…

Contextual Knowledge

OWN DEPARTMENT

…

CANADIAN FORCES SUPPLY SYSTEM (CFSS) procedures to ensure compliance with regulations governing issuing of and accounting for materiel.

…

OTHER DEPARTMENTS

OTHER DEPARTMENT’S (RCMP, PARKS CANADA) REQUIREMENTS AND, PROCEDURES FOR SHIPPING DANGEROUS GOODS BETWEEN DEPARTMENTS.

CANADIAN PRIVATE AND PUBLIC SECTOR

CONTACTS WITHIN THE PRIVATE SECOTR (SNC IT) TO ARRANGE FOR SHIPPING OF AMMUNITION AND EXPLOSIVES UNDER THE TRANSPORTATION OF DANGEROUS GOODS ACT AND REGULATIONS.

INTERNATIONAL PRIVATE AND PUBLIC SECTOR

NATO AND UN INTERNATIONAL CODES TO FACILITATE SHIPPING OF AMMUNITION, EXPLOSIVES, MISSILES AND TORPEDOES TO OPERATIONAL THEATRES AND RESUPPLY NATO SHIPS DURING JOINT OPERATIONS OR EXERCISES. THESE EXERCISES SOMETIMES INVOLVE MULTI-NATIONAL NON NATO COUNTRIES.

LEGISLATION OR REGULATIONS

…

Explosives Act and regulations, DND explosives safety regulations, Standing NATO Agreements such as markings and colour codes, SOPs, SOIs to ensure compliance while storing, handling and processing ammunition, explosives, MISSILES AND TORPEDOES.

Transportation of Dangerous Goods Act and regulations, International Air Transportation Association regulations, International Civil Aviation Organization regulations, International Maritime Dangerous Goods Code, and military movement regulations to ensure compliance when packaging and shipping ammunition, explosives, MISSILES AND TORPEDOES by land, sea and air.

…

TRAINED Colour discrimination necessary to identify the VARIOUS hazard NATO COLOUR CODES of ammunition by type and function, FOR STORING AND TRANSPORTATION REASONS.

…

Working Conditions – Conditions de travail

Work Environment

PSYCHOLOGICAL

CIVILIAN AMMUNITION TECHNICIANS ARE ENGAGED IN THE RECEIVING, STORING, SHIPPING, HANDLING, REPAIRING, BREAKDOWN, DISMANTLING, MODIFICATION AND DISPOSAL OF AMMUNITION, EXPLOSIVES, MISSILES AND TORPEDOES. THEY MUST RELY ON OTHERS TO MAINTAIN A FOCUSED APPROACH TO THE WORK AT HAND. A LAPSE IN ATTENTION BY ANY MEMBER OF THE WORK GROUP COULD HAVE SERIOUS CONSEQUENCES AND THIS KNOWLEDGE CREATES INCREASED LEVELS OF STRESS FOR THE ENTIRE GROUP.

Work involves shifting priorities, changing deadlines, and frequent interruptions coupled with minimal control over workload. This occurs daily.

…

[Emphasis in the original]

28 Mr. Ramalho testified that he was paid the allowance found in clause 62.01 of the collective agreement in 2008 only when he performed shipper duties. He noted that the allowance was conditional on his signing a waybill for transporting ammunition. When he was not working as a shipper, he moved through different areas of CFAD Rocky Point, such as the Ammunition Maintenance Facility (AMF), the Torpedo Maintenance Facility (TMF) and the Missile Maintenance Facility (MMF). His duties included packaging, labelling and storing ammunition that was ready to be shipped. He noted that those duties were assigned to him by the Material Management Officer (MMO). As a shipper, he did not package and label ammunition but, rather, he inspected the ammunition to ensure that the appropriate labels were affixed and that the documentation was in order.

29 Mr. Ramalho testified that because of his previous military background he was not required to take TPL training. He stated that in his opinion clause 62.01 of the collective agreement is very clear; because he is responsible for packaging and labelling dangerous goods that are to be shipped in accordance with the Regulations, he is entitled to the allowance.

30 In cross-examination, Mr. Ramalho agreed with counsel for the employer that he carries with him the DND “3K” certificate of training when he performs shipper duties. He also agreed that the “3K” training and the TPL training do not cover the same material.

31 Mr. Ramalho stated that, as a GT-02, he did not package and label ammunition every day but that he did so the majority of the time. He explained that ammunition is issued to various units and is often returned, in part or whole. He stated that the ammunition must always be inspected, packaged and labelled to ensure its proper handling and storing.

32 Mr. Ramalho stated that he did not sign waybills at the time he filed his grievance. When counsel for the employer asked if the ultimate authority rested with the shipper to ensure that the packaging and labelling were done in accordance with the Regulations, he agreed.

33 In redirect, Mr. Ramalho stated that as a shipper he did not open a containers or pallets that held ammunition. He inspected only the outside of the containers or pallets to ensure that the proper labelling was affixed. He stated that it would be impossible for him to open every container and pallet of ammunition to ensure that the ammunition had been properly packaged. He stated “I have to trust that my co-workers have properly packaged the ammunition in accordance with the TDGA even though I was the one responsible for the entire shipment.”

34 Scott Haukaas has been employed at the CFAD in Rocky Point for approximately 20 years. He has been classified at the GT-02 group and level since 2000.

35 Mr. Haukaas testified that he received the allowance prescribed in clause 62.01 of the collective agreement from April 2004 to April 2006 while working as a shipper in the traffic office of CFAD Rocky Point. Mr. Haukaas is qualified at the TPL 5 level but is no longer “3K” certified, since his certification lapsed in August 2007. He has worked in the TMF and the MMF packaging, labelling and inspecting torpedoes and missiles. He explained that Building 32 is the biggest magazine in the Rocky Point depot and that it is considered a staging area. All items related to ammunition (except for detonators) are received and shipped from there.

36 In conclusion, Mr. Haukaas stated that the “3K” training taught him how to properly ship ammunition, whereas the TPL training taught him how to properly package and label ammunition.

37 In cross-examination, Mr. Haukaas agreed that, when a shipper signs a waybill, it attests that he or she has ensured that the proper labelling is affixed, that the package is sealed and that there are no outward signs of damage. The final responsibility for shipping rests with the shipper. Mr. Haukaas explained that the shipper would have to assume that the inner packaging of the ammunition was properly done in accordance with the Regulations since the shipper does not open the packaging for inspection.

38 Andrew Davies was classified at the GT-02 group and level at the time he filed his grievance, but he was acting as a civilian technical supervisor at the GT-03 group and level in the MMF. He testified that his duties at the MMF were to inspect, repair, modify, refurbish, test, perform quality control functions, package and label missiles in accordance with the Regulations. In some instances, he packaged and labelled missile canisters in accordance with the Regulations and shipped them from the MMF directly to the Rocky Point jetty, where the missiles were then loaded onto Canadian naval ships. In other cases, missiles and component parts such as rocket motors, jet fan controls, etc. that were being sold to different countries were packaged, labelled and shipped to magazines for storage, pending their sales. He confirmed that the assignment of the packaging and labelling came from the MMO. Although he was not “3K” certified or trained to ship missiles, because of his TPL training he packaged and labelled the missiles in accordance with the Regulations.

39 In cross-examination, Mr. Davies stated that the GT-02 work description is generic. When operational requirements mandate interchanges between the various workshops or facilities at CFAD Rocky Point, an employee may be moved on a moment’s notice from one location in the depot to another. In other words, an employee might one day be packaging and labelling and the next day be handling dangerous goods. The work description needs to include all the duties performed in the depot since employees can be asked to perform any of them at any given time.

40 Rita Anderson has been employed at CFAD Rocky Point since 1987, and her position is presently classified at the GT-02 group and level. She stated that in 2000 the Ammunition Worker (AMW) classification was changed to GT.

41 Ms. Anderson stated that she presently works in the Receipt and Issue Building, where the majority of her duties involve packaging and labelling. She explained that boxes of ammunition being prepared for shipping must have the appropriate information and labels. That information includes the stock number, NATO symbol of interchangeablility, lot number, hazard class, gross weight, shipping cube, etc. The outer boxes of ammunition (crates) may contain smaller inner boxes of ammunition that she might need to randomly check for quality control purposes or for partial-quantity shipments or demolition. She stated that the inner boxes must be relabelled to mirror the data on the outer boxes.

42 Ms. Anderson stated that, after removing the inner boxes from the outer boxes, she signs a repackaging slip that includes the date and weight of the ammunition to be shipped. She stated, “We all have our fingers in the shipping of dangerous goods.” She stated that she has never been paid the allowance under clause 62.01 of the collective agreement.

43 In cross-examination, Ms. Anderson agreed that she was not “3K” certified. However, she stated that the MMO assigned her the responsibility of packaging and labelling dangerous goods in the Receipts and Issue Building.

44 Kirk Jacobson joined the DND in 1966 as a military weapon technician. In 1992, he began working at CFAD Rocky Point. He is currently a senior supervisor at the GT-04 group and level and is trained at the TPL 6 level. He filed his grievance on March 15, 2006, and his substantive position at that time was classified at the GT-03 group and level.

45 Although Mr. Jacobson was “3K” certified from June 25, 1995 to March 27, 2008, he never received the dangerous goods allowance.

46 Mr. Jacobson stated that TPL levels 1 to 4 are part of the training course for the GT-01 group and level. On successful completion of TPL 4, an employee graduates to the GT-02 group and level. When an employee successfully completes TPL 5, he or she graduates to the GT-03 group and level. The final TPL 6 course, when successfully completed, graduates an employee to the GT-04 group and level.

47 Mr. Jacobson could not recall if he received a certificate in 1995 after he successfully completed his TPL 4 training. He stated that the date of completion of his TPL 4 training can be found on CFAD Rocky Point’s Human Resources website.

48 In cross-examination, Mr. Jacobson agreed with counsel for the employer that the ultimate responsibility for shipping dangerous goods and signing the waybills rests with the shipper.

49 Mr. Jacobson explained that the assignment of shipping duties is done following consultation with the GT-04 in charge at the monthly production meeting. The employees selected are assigned shipper duties and placed on a rotation sheet. To receive the dangerous goods allowance, the shipper must sign a waybill. However, he stated the following: “Every day you are performing the duties of the shipper but not every day you sign a waybill.”

50 Mr. Jacobson agreed that the TPL training and the “3K” training are not the same. The TPL training is a combination of on-the-job training and some classroom studies. The TPL training has pass-or-fail criteria, but it does not expire like the “3K.”

B. For the employer

51 Lieutenant Commander Randall Homes was the Commanding Officer (CO) of CFAD Rocky Point from July 2005 to July 2008.

52 As the CO, his duties included ensuring the safe operation of the depot, ensuring that policy and procedures were updated and enforced, and training military and civilian personnel.

53 Lieutenant Commander Holmes stated that the reason the GT work description was generic so that it would describe in sufficient detail the particular GT group and level duties and so that it would provide interchangeability with the various duties in the workshop and facilities at CFAD Rocky Point.

54 Lieutenant Commander Holmes described Exhibit E-3, tab 20, as a bulletin from Diana McCusker, Director General, Labour Relations and Compensation, DND, as an interpretation of the intent of clause 62.01 of the collective agreement. He explained that, for an employee to receive the dangerous goods allowance, he or she must be “3K” certified, must be specifically assigned the responsibility to package and label dangerous goods for shipping and must have a valid “3K” certification. It is his understanding that, to be paid the dangerous goods allowance, an employee must also sign a waybill.

55 In cross-examination, Lieutenant Commander Holmes agreed that there was no specific work description for a shipper. He also agreed that, in the regular course of his or her GT-02 duties of packaging and handling dangerous goods, an employee at that classification does not have responsibility for shipping outside the depot.

56 In response to this question from the grievors’ representative, “As Commanding Officer, why would you not ‘3K’ all GT-02s”, Lieutenant Commander Holmes stated as follows: “Based on the number of rotations of personnel (on leave, training, sick, etc.), a pool of seven or eight employees is sufficient.”

57 In redirect, Lieutenant Commander Holmes confirmed that “3K” certification is a term used by DND employees who are certified and trained to ship dangerous goods outside the confines of the depot.

58 Major David Anderson has 21 years of military service with the DND. He is currently the CO of CFAD ANCUS Borden and is the acting J-04 at national ammunition headquarters.

59 Major Anderson stated that, as the CO of an ammunition depot, he is accountable for the command and control of the depot by ensuring that there are sufficient resources to properly train his direct reports, whether they are civilian or military, with respect to the duties that they are assigned.

60 Major Anderson testified that his J-04 duties are to harmonize tasks, resources and responsibilities at Canada’s four ammunition depots and its two supply depots. Ammunition safety and the functioning of the depots fall into three lines of activity: customers, support and national warehouse inventory.

61 Major Anderson testified that, for the most part, the magazine workshops within the CFADs are isolated from the general public. The depots are on large tracts of land located outside major areas of population. The shipping of ammunition within the depots along various internal transportation routes does not expose the general public to dangerous goods. He stated that it is a controlled risk. However, the DND must be diligent and ensure that the shipper who ships dangerous goods by commercial means into the public domain is properly “3K” certified.

62 Major Anderson explained that the TPL training is administered locally within the depot and that it is broad in nature, progressing through a number of levels. However, the TPL training does not focus on shipping.

63 Major Anderson stated that in his opinion the purpose of clause 62.01 of the collective agreement is to ensure that an employee who is assigned shipping duties is compensated for the risks and liability aspects of those duties. As well, it is a monetary incentive for GTs to aspire to being assigned shipper duties.

64 In cross-examination, Major Anderson agreed that the maximum of $75.00 per month for a person assigned shipping duties who may be liable for thousands of dollars in fines does not seem fair.

65 Major Anderson conceded that he is not “3K” certified.

66 Major Anderson stated that packaging and labelling dangerous goods is part of a GT’s duties but that shipping is a distinct function.

67 Major Anderson agreed with the grievors’ representative that the word “shipper” is not found in clause 62.01 of the collective agreement.

68 In October 2004, Francis Bognar was appointed as the manager responsible for the Transportation of Dangerous Goods Policy at the DND. Before he joined the public service, he was an officer working at various posts in the United States, Germany, Hungary and Haiti. He was also an observer in Bosnia for the DND.

69 Mr. Bognar’s responsibilities, in part, are to initiate, formulate and regulate policies involving dangerous goods by harmonizing civilian domestic or international regulations. As well, he provides advice to the Minister of National Defence with respect to the Regulations.

70 Mr. Bognar is also responsible for “3K” recertification and is the administrator of the “3K” records of military and civilian employees. He stated that “3K” is slang for a military code, “AHUR”, which has no particular significance.

71 Mr. Bognar testified that civilian legislation and regulations for shipping dangerous goods fall short of the military’s requirements. Mr. Bognar explained that the Regulations alone are not enough, as the employees must be specifically “3K” trained to go beyond commercial boundaries when shipping dangerous goods that may travel to countries such as Afghanistan, Somalia, etc. Mr. Bognar explained that the military requirements (Exhibit E-3, tab 21) for transporting dangerous goods state that only “3K” certified personnel are qualified to ship dangerous goods. In the military, only ammunition and supply technicians can be “3K” certified. In the public service GT-02s, GT-03s and GT-04s, the civilian equivalent of the military ammunition technician, can be “3K” certified.

72 Mr. Bognar stated that the purpose of section 6.1 of the Regulations is to ensure that a person who handles or transports dangerous goods has proof of certification. A person who holds a valid “3K” certification is authorized to ship dangerous goods by air, road, rail or marine means. He explained that in the commercial handling and shipping of dangerous goods an employee must renew his or her “3K” certification for air shipping every two years and for ground and marine shipping every three years. The military and civilian “3K” certification must be renewed for air, ground and marine shipping every two years.

73 The renewal process for “3K” certification for DND personnel is as follows. The employee writes an online exam, which consists of 50 multiple-choice questions from 7 different publications. The exam is open book and must be completed within three hours. The pass mark is 90. If the employee passes the exam, he or she is recertified. If the employee fails, he or she can rewrite the exam a second time after 30 days. If the employee fails a second time, his or her certification is withdrawn, and the employee must attend a three-week course at CFB Borden.

74 Mr. Bognar explained that the purpose of section 6.6 of the Regulations is to ensure that the DND maintains a record of all “3K” certificates and the date on which they were issued. The purpose of section 6.8 is to ensure that the person who handles or transports dangerous goods has his or her “3K” certificate on them at all times.

75 Mr. Bognar stated that it is the DND’s responsibility to maintain a database of all employees’ “3K” certifications. The database contains tombstone data of every employee as well as the date the certificate was issued and the expiry and renewal dates.

76 Mr. Bognar explained that a shipper accepts dangerous goods, corrects any deficiencies on the labelling or the packaging, prepares documentation for transportation, and signs and certifies the waybill. The shipper can be required to testify in court proceedings that the TDGA and the Regulations have been compiled with if an incident or accident occurs after the shipment leaves the facility. The shipper is legally liable for the transportation of the dangerous goods. Mr. Bognar stated that, at the end of the day, the “ultimate responsibility” rests with the shipper.

77 Mr. Bognar stated that employees who package dangerous goods work in a secure environment (magazine or workshop), which is in a controlled depot. The employees assist the shipper by packaging and labelling dangerous goods, but they have no legal liability. The employees packaging and labelling dangerous goods in a controlled and secure environment do not have the same legal liability as the shipper when the dangerous goods are transported to areas where the public is at large.

78 Mr. Bognar described a DND waybill (Exhibit G-3, tab 23), which a shipper must complete before dangerous goods are shipped. The waybill has a number of areas that must be completed by the shipper (i.e., transport details, warnings, the quantity of the dangerous goods, United Nations number, class or division, type of packaging, packing instructions, destination, whether it is radioactive or non-radioactive, emergency contact numbers, etc.). When the shipper is satisfied that all the information has been completed, he or she signs the following declaration (Exhibit E-3, tab 23):

…

I hereby declare that the contents of this consignment are fully and accurately described above by the proper shipping name and are classified, packaged, marked and labeled/placarded, and are in all respects in proper condition for transport according to applicable international and national governmental regulations. I declare that all of the applicable air transport requirements have been met.

…

79 Mr. Bognar stated that, if a shipper is found guilty of not complying with the TDGA and the Regulations, the first offence is a $50,000.00 fine and the second is $100,000.00 plus two years less a day in jail. The waybill is a legal document and can be used in court proceedings against the employee who signs it.

80 In conclusion, Mr. Bognar stated that in his opinion clause 62.01 of the collective agreement was negotiated to recognize qualified and “3K”-certified employees who ship dangerous goods.

81 In cross-examination, Mr. Bognar stated that section 1.20 of the Regulations allows the DND to direct and control any activity related to the transportation of dangerous goods. Section 1.20 reads in part as follows:

1.20 National Defence

For the purpose of paragraph 3(4)(a) of the Act, any activity or thing related to the transportation of dangerous goods is under the sole direction or control of the Minister of National Defence if the dangerous goods are in or on a means of transport

(a) owned and operated by the Department of National Defence or operated on behalf of the Department of National Defence by

(i) an employee of the Department of National Defence,

(ii) a member of the Canadian Forces, or

(iii) civilian personnel who are not employed by the Department of National Defence if the means of transport is accompanied at all times by, and is under the direct responsibility of, an employee of the Department of National Defence or a member of the Canadian Forces;

…

82 Mr. Bognar explained that, given this exemption, the DND has sole discretion for packaging, labelling, shipping and storing dangerous goods within the CFADs. The DND is responsible and liable for shipping dangerous goods by commercial means outside the confines of the CFADs whether they are shipped by land, sea or air.

83 Mr. Bognar agreed with the grievors’ representative that clause 62.01 of the collective agreement does not mention “3K” certification.

84 In reply, Mr. Bognar stated that in his opinion, the wording of clause 62.01 of the collective agreement referring to “an employee certified” pursuant to the TDGA “means ‘3K’ certified.”

III. Summary of the arguments

A. For the grievors

85 The grievors’ representative argued that I must consider the following two issues:

1. The DND’s violation of section 62.01 of the collective agreement.
2. The DND’s decision not to pay the dangerous goods allowance for every day that an employee packages and labels dangerous goods.

86 She stated that the criteria in the grievances are as follows:

1. The grievors are certified and meet the requirements of the TDGA.
2. The grievors are assigned the responsibility to package and label dangerous goods.
3. The grievors are required to maintain their “3K” certification.

87 Therefore, based on clause 62.01 of the collective agreement, the DND is obligated to pay the grievors $3.50 per day to a maximum of $75.00 per month.

88 It is the grievors’ position that, although the DND insists on “3K” training, which is a more stringent requirement for an employee performing the duties of a shipper, clause 62.01 of the collective agreement has a broader application. The grievors are all certified at the TPL 4 or 5 level and package and label dangerous goods in accordance with the TDGA. Therefore, the provisions found in clause 62.01 entitle them to be paid the dangerous goods allowance.

89 The grievors’ representative stated that section 6.1 (Training Certificate Requirements) of the Regulations require an employee who handles, offers for transport or transports dangerous goods to be adequately trained, retain a valid training certificate and perform those duties under proper supervision. Since the DND has provided the grievors with TPL training and has assigned them handling and labelling duties, then by default they hold a valid “3K” certificate.

90 Clause 62.01 of the collective agreement does not state that a shipper must sign a waybill to receive the dangerous goods allowance. Clause 62.01 does not limit the allowance to shippers; it states that only an employee “… assigned the responsibility for packaging and labelling of dangerous goods for shipping in accordance with [the TDGA] shall receive …” the dangerous goods allowance.

91 The reason the DND introduced generic work descriptions for the GT-02 and GT-03 classifications was to maximize employee flexibility within the CFAD. This flexibility encompasses packaging and labelling.

92 In conclusion, the grievors’ representative stated that the burden of proof has been met, and as such, the grievors are entitled to the dangerous goods allowance.

93 In the alternative, should I decide that only shippers who are “3K” certified and have signed waybills should be paid the dangerous goods allowance, then they should be paid the allowance for every day that they have been “3K” certified.

94 The grievors’ representative requested that, in the event that I rule in whole or in part, in favour of the grievances before me, I remain seized to allow counsel for the employer and herself to reach an agreement on compensation.

B. For the employer

95 Counsel for the employer argued that, the DND has not violated clause 62.01 of the collective agreement. The DND has an unfettered right to assign duties (such as those of a shipper) to employees, as stated in section 7 of the Financial Administration Act.

96 Clause 62.01 of the collective agreement centres on the keywords “for shipping.” An employee may package, label or handle dangerous goods, but the ultimate responsibility for shipping dangerous goods lies with the shipper.

97 Counsel for the employer stated that, to qualify for the dangerous goods allowance, a shipper must be certified as contemplated by the TDGA and the Regulations, package and label dangerous goods for shipment and maintain his or her “3K” certification.

98 Mr. Bognar testified that the purpose of section 6.3 of the Regulations is for the DND to be confident that, based on reasonable grounds, its employees are properly trained and have a valid training certificate. TPL training is not a certification with pass- or-fail criteria and does not have to be renewed.

99 Counsel for the employer argued that it would be an absurd interpretation if I were to accept the grievors’ argument that an employee at the GT-02, GT-03 or GT-04 group and level who has TPL training automatically receives the dangerous goods allowance. The correct interpretation of clause 62.01 of the collective agreement is that an employee whom the employer deems to be “3K” certified and who holds a valid certification is entitled to the dangerous goods allowance when assigned shipper duties.

100 Counsel for the employer stated that the grievors fall into the following three groups, as identified in Exhibit A-1:

Group #1 – the employee held a valid “3K” certification, were not assigned shipper duties and were not paid the dangerous goods allowance.

Group #2 – the employee did not hold a valid “3K” certification, were not assigned shipper duties and were not paid the dangerous goods allowance.

Group #3 – the employee held a valid “3K” certification, were paid the dangerous goods allowance when they performed the shipper duties and signed the waybill.

101 Counsel for the employer argued that the significance of signing the waybill is that it ensures that the DND meets all the requirements in the TDGA and the Regulations and that it retains a receipt for the payment of transportation costs.

102 Counsel for the employer stated that the DND concedes that the requirement to sign the waybill is not necessary for a 3K-certified employee to be paid the dangerous goods allowance.

103 Counsel for the employer argued that I should dismiss those grievances that do not meet the above requirements. He also argued that any corrective action should be limited to 25 days before the grievances were filed (Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (QL)).

104 In the alternative, counsel for the employer requested that I remain seized if I were to allow all or some of the grievances in order to provide the parties with opportunity to reach consensus.

105 Counsel for the employer submitted the following case law: Belliveau et al. v. Treasury Board (Transport Canada), 2006 PSLRB 121; Eksal v. Canada (Attorney General), 2006 FCA 50; Horvath v. Treasury Board (Solicitor General Canada - Royal Canadian Mounted Police), PSSRB File Nos. 166-02-21133 and 21134 (19911021); Coallier; and Baker v. Treasury Board (Correctional Service of Canada), 2008 PSLRB 34.

IV. Reply of the grievors

106 The grievors’ representative stated that she was very surprised that at this late stage in the hearing the DND was conceding that an employee with a valid “3K” certification need not sign a waybill to be paid the dangerous goods allowance.

107 Clause 62.01 of the collective agreement does not state that the “ultimate responsibility” rests with the shipper. The GT-02s, GT-03s and GT-04s are assigned the duties to package and label dangerous goods for shipping.

108 The grievors’ representative stated that Coallier would not apply in this case since clause 62.01 of the collective agreement has been breached.

V. Reasons

109 On March 13, 14, 15, 16 and 27, 2006, the grievors filed grievances alleging that the employer’s decision not to pay the dangerous goods allowance was a violation of clause 62.01 of the collective agreement.

110 The grievors’ requested corrective action is to be paid the dangerous goods allowance from March 14, 2005, the date on which the collective agreement was signed.

111 I am charged with interpreting the wording of clause 62.01 of the collective agreement to ascertain the parties’ intent.

112 In Canadian Labour Arbitration, 4th edition, chapters 4:37 and 4:41, authors Brown and Beatty summarized the rules of interpretation that guide an adjudicator when interpreting a provision of a collective agreement as follows:

…

It has often been stated that the fundamental object in constructing the terms of a collective agreement is to discover the intention of the parties who agreed to it.

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions.

In searching for the parties’ intention with respect to a particular provision in the agreement, arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense unless that would lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in some other sense.

…

113 Clause 62.01 of the collective agreement reads as follows:

62.01 An employee certified pursuant to the Transportation of Dangerous Goods Act and who is assigned the responsibility for packaging and labeling of Dangerous Goods for shipping in accordance with the above Act, shall receive a daily allowance of three dollars and fifty cents ($3.50) for each day he or she is required to package and label Dangerous Goods for shipping, to a maximum of seventy-five dollars ($75) in a month where the employee maintains such certification.

114 Interpreting clause 62.01 of the collective agreement suggests that an employee must meet the following three conditions to qualify for the dangerous goods allowance:

1. an employee must be certified pursuant to the TDGA and the Regulations;
2. an employee must be assigned the responsibility for packaging and labelling dangerous goods for shipping in accordance with the TDGA and the Regulations; and
3. an employee receives the dangerous goods allowance for each day he or she is required to package and label dangerous goods for shipping.

115 Section 6.1 of the Regulations (Training Certificate Requirements) states that an employee who handles or transports dangerous goods must be adequately trained and be in possession of a training certificate. To meet the requirements of section 6.2 of the Regulations (Adequate Training), an employee must have a sound knowledge of all the subject matter listed in paragraphs (a) to (m) of that section.

116 Employees who have had only TPL training, as testified by Mr. Gingras, are not adequately trained in paragraph 6.2 (c) of the Regulations, the use of schedules 1, 2 and 3, and in paragraph 6.2 (d), the shipping document and train consist requirements in Part 3, Documentation. Mr. Gingras’ evidence was not uncontradicted. As such, those employees who only possess TPL training do not meet the full requirements of section 6.2.

117 The evidence also reveals that, for an employee to progress from the GT-01 group and level, he or she must, over a period of years, progress through four TPL levels of training to qualify as a GT-02. The TPL training consists of some classroom studies along with on-the-job training at the depot. No certificate is issued or required to be renewed once an employee completes a TPL level.

118 An employee who receives “3K” training is required to take a 3-week training course at CFB Borden, pass an exam with a minimum mark of 90 percent, renew his or her certification every 2 years and carry the “3K” certificate on his or her person when shipping dangerous goods. Section 6.6 of the Regulations requires the employer to maintain a record of all employees that are “3K” certified and the expiry date of their certifications. Mr. Bognar is charged with that responsibility and testified that he maintains all the tombstone data of “3K” certified civilian and military personnel in the DND.

119 Only an employee with a valid “3K” certification is authorized to sign a waybill for the transportation of dangerous goods. I also note that only employees holding a valid “3K” certification that have signed waybills are held legally liable to ensure that the dangerous goods are shipped in accordance with the TDGA and the Regulations.

120 In my opinion, only an employee who holds or has held a valid “3K” certification is entitled to receive the dangerous goods allowance for preparing and shipping dangerous goods outside the confines of CFAD Rocky Point either by commercial or other means.

121 Section 7 of both the Public Service Staff Relations Act and the Public Service Labour Relations Act enshrine the principle that the employer has the right and authority to determine the organization of the public service or to assign duties and classify positions.

122 The employer’s work descriptions for the GT-02, GT-03 and GT-04 groups and levels are generic in nature and do not specifically refer to a shipper. The evidence before me points out that the senior management of CFAD Rocky Point maintains a rotation of approximately seven or eight employees who hold a valid “3K” certification and who are assigned shipper duties. The fact that an employee who possesses a valid “3K” certification, whether at the GT-02, GT-03 or GT-04 group and level, is rotated through various magazines and workshops at a moment’s notice to package and label dangerous goods suggests that that employee, on a daily basis, is assigned those duties and in fact performs those duties. The employer, perhaps for bookkeeping or other purposes, pays the daily allowance only when an employee signs a waybill. In argument, the employer conceded that an employee who holds a valid “3K” certificate and who has been assigned to package and label dangerous goods need not sign a waybill to be paid the dangerous goods allowance.

123 In a review of Section 1.20 of the Regulations, I agree with the employer that any activity related to the transportation of dangerous goods is under the sole direction of the DND and is therefore exempt as stated in TDGA section 3.4 (Application of Act). It is clear that employees who do not possess a valid “3K” certification package, label and ship dangerous goods within CFAD Rocky Point; however, they are not adequately trained in all the subject matter required under the provisions of the Regulations. Therefore, the employer’s decision to only allow employees who possess a valid “3K” certification to ship dangerous goods outside CFAD Rocky Point, where Canadians and communities may be at risk, is well within its rights.

124 I conclude that an employee who holds or who has held a valid “3K” certificate is entitled to be paid the daily dangerous goods allowance of $3.50 to a maximum of $75.00 per month as per clause 62.01 of the collective agreement.

125 The grievors’ representative argued that Coallier does not apply in this case because the employer has breached clause 62.01 of the collective agreement.

126 I do not agree with that argument, as I find that the grievances are of a continuing nature, and as such, the remedy is limited to a period of 25 working days before the date at which the entitled grievors filed their grievances, in light of clause 18.10 of the collective agreement and the decision of the Federal Court in Coallier.

127 Clause 18.10 of the collective agreement reads as follows:

An employee may present a grievance to the First Level of the procedure in the manner prescribed in clause 18.05 not later than the twenty-fifth (25^th) day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to the grievance.

128 The parties’ agreed statement of facts (Exhibit A-1) lists the grievors who have held or who currently hold a valid “3K” certification. I order the employer to use that document to compensate the grievors that meet the conditions as stated above. I will remain seized as requested by the parties until the implementation of the order.

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

VI.Order

130 The grievances are allowed in part.

131 The employer will compensate the grievors listed in Exhibit A-1 the daily allowance of $3.50 to a maximum of $75.00 per month for the periods in which they held or hold a valid “3K” certification for up to 25 working days before each grievor filed his or her grievance.

July 31, 2009.

D.R. Quigley,
adjudicator