FPSLREB Decisions

REASONS FOR DECISION

I. Policy grievance referred to adjudication

1        The Canadian Federal Pilots Association (“the bargaining agent” or CFPA) filed a policy grievance with the Treasury Board (Transport Canada or “the employer”) on June 1, 2012, alleging that the employer had violated the provisions of article 34 of the relevant collective agreement for the incumbents of three specific positions, which the former Public Service Labour Relations Board (“the former Board”) had determined fell within the Aircraft Operations (AO) bargaining unit. The three positions in question are the superintendent, enforcement investigations; the superintendent, aerodrome safety in Edmonton, Alberta; and the chief, civil aviation contingency operations, in Ottawa, Ontario.

2        The relevant collective agreement, which was between the CFPA and the Treasury Board for the AO Group, expired on January 25, 2008 (“the collective agreement”).

3        The grievance presentation form sets out the history of this dispute relating to the status of those positions. It is recited at greater length in the agreed statement of facts submitted by the parties and reproduced in its entirety later in this decision.

4        The corrective action sought by the bargaining agent is as follows:

1.   The incumbents of the three aforementioned positions are by order of the Board members of the AO group.

2.   Article 34 of the AO Collective Agreement states “Employees who are incumbents of positions (either on a substantive basis or acting appointment basis) in the Aircraft Operations bargaining unit shall be entitled to an Aviation Aircrew Allowance (AAA). (Tab 9)

3.   Said allowance has not been paid to the incumbents.

4.   Allowances must be paid retroactive to the date the members commenced duties in the three aforementioned positions. These were/are positions PRAL-8476, NCRL-21198 and PRAL-19826.

5.   For greater clarity allowances under Section 34 form part of pay for purposes [of the] Public Service Superannuation Act (PSSA), Disability Insurance Act (DI) and the Public Service Management Insurance Plan (PSMIP).

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the new Board”) to replace the former Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) as that Act read immediately before that day.

6        Furthermore, pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the PSLRA before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

7        The employer denied the grievance on December 12, 2012, in the following terms:

After a careful review I have concluded that because there has not been a new collective agreement signed since the PSLRB-2008-42 decision was issued, these employees are not subject to the AO collective agreement and as such are not eligible to receive the AAA. As I understand, these employees still receive their benefits from the collective agreements associated with the classification of their positions.

II. Summary of the facts

8        At the outset of the hearing on June 9, 2014, the parties introduced an agreed statement of facts and entered a number of documents on consent. That statement reads as follows:

PSLRB File No: 569-02-117

PUBLIC SERVICE LABOUR RELATIONS BOARD

BETWEEN:

CANADIAN FEDERAL PILOTS ASSOCIATION

Bargaining Agent

- and -

TREASURY BOARD OF CANADA (TRANSPORT CANADA)

Employer

AGREED STATEMENT OF FACTS
POLICY GRIEVANCE - ARTICLE 34 ALLOWANCE

The Canadian Federal Pilots Association (“CFPA”) and the Treasury Board of Canada (“Treasury Board”) agree, for the purposes of this adjudication:

(a) that the facts set forth herein are admitted as proven as if those facts had been established in evidence, subject to their relevance to the issues and to their weight being determined by the Adjudicator;

(b) that the documents attached as exhibits hereto are admitted as proven, subject to their relevance to the issues herein and to their weight being determined by the Adjudicator;

(c) that each exhibit hereto is a true copy of a document, the original of which was printed, written, signed or executed as it purports to have been, and which was sent and received, as the case may be, by the persons indicated thereon or therein, at or about the dates indicated.

Background to the Grievance

1. The CFPA is the certified bargaining agent for all employees of the Treasury Board in the Aircraft Operations Group (“AO Group”) bargaining unit as defined in the Canada Gazette of March 27, 1999. Attached hereto as Exhibits “A” and “B” are the Certificates dated January 18, 2001 and November 14, 1984, respectively.

2. On May 25, 2006, the CFPA brought an application under section 58 of the Public Service Labour Relations Act (“PSLRA”) for a determination that the incumbents of the following Three Positions (the “Three Positions”) be included in the AO Group bargaining unit:

(a) Manager, Civil Aviation Contingency Operations (PSLRB File No. 547-02- 4), classified as PM-06 position #NCRL21198;

(b) Superintendent, Enforcement Investigations (PSLRB File No. 547-02-5), classified as TI-07 position #PRAL 18476; and

(c) Superintendent, Aerodrome Safety (PSLRB File No. 547-02-6), classified as TI-07 position #PRAL 19826.

3. At the time the CFPA brought its application under section 58, the Three Positions were included in the Program and Administrative Services or the Technical Services groups, for which the Public Service Alliance of Canada (“PSAC”) was the certified bargaining agent. Copies of the entire relevant collective agreements between the Treasury Board and the PSAC regarding the Program and Administrative Services and the Technical Services groups are attached hereto as Exhibits “C” and “D”.

4. On June 20, 2008, Board member Barry Done made the following Order (“Done Decision”):

The Applications are allowed. The positions at issue are to be included in the AO group for which the Canadian Pilots Federation Association is the certified bargaining agent.

5. Attached hereto as Exhibit “E” is the Done Decision (2008 PSLRB 42). The Order is found at paragraph 44 of the Done Decision. The Employer subsequently maintained the existing classification of the Three Positions. Attached hereto as Exhibit “F” is a copy of the AO Classification Standard. Attached hereto as Exhibit “G” is a copy of the Occupational Sub Group Definitions.

6. On July 18, 2008, the PSAC and the Attorney General of Canada made applications for judicial review under section 28 of the Federal Courts Act, seeking to set aside the Done Decision.

7. ln December of 2008, the CFPA, the PSAC and the Treasury Board entered into a Memorandum of Understanding (the “MOU”) pending the outcome of these judicial review applications. Attached hereto as Exhibit “H” is the December 2008 Memorandum of Understanding.

8. On July 2, 2009, a decision was rendered dismissing the judicial review applications. Attached hereto as Exhibit “1” is the decision of the Federal Court of Appeal (2009 FCA 223).

9. On September 29, 2009, the PSAC brought a motion for leave to appeal the decision of the Federal Court of Appeal to the Supreme Court of Canada. On January 14, 2010, the motion for leave to appeal was dismissed, pursuant to that Court’s practice, the Application was dismissed without reasons.

The Collective Agreements

10. The then operative AO Collective Agreement between the parties, signed on October 10, 2006 expired on January 25, 2008, prior to the release of the Done Decision of June 20, 2008. A copy of this entire AO Collective Agreement is attached hereto as Exhibit “J”.

11. A tentative agreement for a renewal of the aforementioned AO Collective Agreement was reached by the parties on May 21, 2009 and was subsequently ratified by the CFPA membership on August 13, 2009. As indicated on the face of the AO Collective Agreement, at page 71, the AO Collective Agreement was signed on August 14, 2009 and, pursuant to Article 54, the AO Collective Agreement became effective on that date. The AO Collective Agreement subsequently expired on January 25, 2011. A copy of this entire AO Collective Agreement is attached hereto as Exhibit “K”.

12. ln view of the MOU and the fact that the status of the Three Positions and the Done Decision itself remained subject to ongoing judicial review proceedings, no express provision respecting the Three Positions was included in the August 2009 Collective Agreement.

13. The Employer has continued to provide the Three Positions with the terms and conditions described in the relevant collective agreements between the Treasury Board and the PSAC regarding the Program and Administrative Services and the Technical Services groups. The CFPA has never agreed with this position, in the period subsequent to the application of the MOU. Copies of the entire most recent collective agreements are attached hereto as Exhibits “L” and “M”.

14. The parties commenced a new round of collective bargaining on September 27, 2010. The parties exchanged proposals on February 15, 2011 and met to bargain collectively in February, June, October, November and December of 2011.

15. On December 22, 2011, the CFPA requested conciliation to further the process of bargaining and a Public Interest Commission (the “PIC”) was established on February 28, 2012. A copy of the PIC proposals from the CFPA and the Treasury Board are attached hereto respectively as Exhibits “N” and “O”.

16. On November 9, 2012, the Report of the PIC (the “Report”) was released, copy of which is attached hereto as Exhibit “P”.

17. Following receipt of the Report, the CFPA wrote to the Employer and advised that, with one exception relating to overtime, the CFPA would be prepared to accept the recommendations contained in the Report. Attached hereto as Exhibit “Q” is the undated correspondence from Daniel Slunder of the CFPA to Carl Trottiers of the Treasury Board.

18. A tentative agreement respecting a renewal of the AO Collective Agreement was reached by the parties on July 3, 2013 and was subsequently ratified by the CFPA membership on November 6, 2013. As indicated on the face of the AO Collective Agreement, at pages 73 and 74, the AO Collective Agreement was signed on November 21, 2013 and, pursuant to Article 54, the AO Collective Agreement became effective on that date. The AO Collective Agreement is to set to expire on January 25, 2015. A copy of this AO Collective Agreement is attached hereto as Exhibit “R”.

Article 34 - Aviation Aircrew Allowance

19. On October 26, 1999, the Aviation Aircrew Allowance came into existence in the AO Collective Agreement. A copy of this AO Collective Agreement is attached hereto as Exhibit “S”.

20. Pursuant to Article 34.03 in the current AO Collective Agreement, effective January 26, 2014, the Aviation Aircrew Allowance ceased to apply, and instead was rolled into the AO pay grid, as at that date.

21. The Allowance is currently pensionable, but does not form part of salary.

The Grievance

22. On June 1, 2012, the CFP submitted a policy grievance, a copy of which is attached hereto as Exhibit ‘T’.

23. To date, the incumbents of the Three Positions have not been paid the Aviation Aircrew Allowance.

24. The two TI-07 positions have been abolished. Specifically, the Superintendent Aerodrome Safety position (position #PRAL 19826) was abolished on June 11, 2012 whereas the Superintendent Enforcement Investigations (position #PRAL 18476) was abolished on July 2, 2013.

25. On February 14, 2014, the Manager, Civil Aviation Contingency Operations position (position #NCRL 21198) became vacant.

III. Summary of the arguments

A. For the bargaining agent

9        Counsel for the bargaining agent took me through the historical context that led to filing the present grievance, as reflected in the agreed statement of facts. He submits that the effect of the “Done Decision” (which is the parties’ name for Canadian Federal Pilots Association v. Treasury Board, 2008 PSLRB 42) was to place the employees at issue under the AO collective agreement with respect to their terms and conditions of employment. Counsel points out that article 34 is clear and that since the employees at issue occupy positions in the bargaining unit as a result of the order made under s. 58 of the PSLRA, they are entitled to the Aviation Aircrew Allowance (“AAA”).

10        Counsel for the bargaining agent stresses that the words of article 34 must be given their ordinary meaning and that they should simply be applied to the current situation of the three positions, as applying the article as written does not lead to an incongruity or an absurd result (see Public Service Alliance of Canada v. Communications Security Establishment, 2009 PSLRB 121 at para. 162).

11        The fact that the incumbents of the three positions are not pilots does not matter, in counsel’s submission. The allowance is uniform and is open to all employees in the bargaining unit, without exception or distinction. Rather, counsel submits that it would take strong language to digress from the clear words of the article, and he concluded that the policy grievance should be allowed.

B. For the employer

12        Counsel for the employer submits that there is no basis to conclude that the parties’ intention was to expand the employer’s obligations to pay the AAA under article 34 to the three positions at issue. The wording of the entire collective agreement, coupled with the historical context, clearly demonstrates the parties’ intention to limit paying the AAA to AO positions at the time the AAA was negotiated. Moreover, the bargaining agent’s interpretation leads to the absurd result of allowing the incumbents of the three positions to “cherry pick” terms and conditions of employment.

13        The employer further submits that the onus is on the bargaining agent to clearly demonstrate on a balance of probabilities that the employer violated article 34 by refusing to pay the AAA to the incumbents of the three positions (see Canadian Association of Professional Employees v. Treasury Board (Department of Human Resources and Skills Development), 2013 PSLRB 100; and F.H. v. McDougall, 2008 SCC 53).

14        In counsel for the employer’s submission, the wording of clause 34.01, which sets out the purpose of the allowance, suggests that the parties intended to limit the AAA to existing AO positions when they negotiated the allowance (see Brouse v. Treasury Board (Citizenship and Immigration Canada), 2003 PSLRB 14; Niagara (Municipality) v. Ontario Nurses’ Assn., [2009] O.L.A.A. No. 125 (QL); Mines and Aggregates Safety and Health Assn. v. Canadian Office and Professional Employees Union, Local 24, [2008] O.L.A.A. No. 235 (QL); Mississauga (City) v. Amalgamated Transit Union, Local 1572, [2009] O.L.A.A. No. 647 (QL); Canada (Attorney General) v. McKindsey, 2008 FC 73; Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55; and Billett v. Treasury Board (Department of Veterans Affairs), 2006 PSLRB 28).

15        Counsel for the employer points out that a review of the entire AO collective agreement demonstrates that there is absolutely no reference to any non-AO positions (including but not limited to the wage rates). Such an omission strongly suggests that the parties did not intend to have the current language of the AO collective agreement apply to future non-AO positions, such as those classified PM or TC.

16        Finally, counsel for the employer submits that the bargaining agent’s position, which would allow non-AO positions to be compensated in accordance with the relevant AO collective agreement, leads to an absurd result, as that agreement is silent with respect to fundamental terms and conditions (i.e., wages). Put simply, an interpretation that finds that the three positions are governed by the terms and conditions of the AO collective agreement would lead to the illogical and irrational result that they are not entitled to any wages. The grievance should be denied.

IV. Reasons

17        The issue raised by this policy grievance is whether the incumbents of the three positions, which in June 2008 the former Board determined were included in the AO bargaining unit, should receive the AAA provided for in the successive collective agreements applicable to that bargaining unit.

18        The genesis of this matter relates to an order of the former Board (the Done Decision), which concluded that the three positions described in the agreed statement of facts were to be included in the AO bargaining unit, for which the bargaining agent has exclusive representation rights.

19        The Done Decision resulted from an application the CFPA filed in 2006, pursuant to s. 58 of the PSLRA. The application sought a determination that the three positions in question ought to properly fall in the AO bargaining unit, in spite of their classifications, which placed them in the Program and Administrative Services and Technical Services groups, both represented by the Public Service Alliance of Canada (PSAC). The former Board agreed that, in light of the evidence describing the actual duties and functions the position’s incumbents performed, including the three positions in the AO bargaining unit was a better fit and so ordered, in the following terms, at paragraph 44:“The applications are allowed. The positions at issue are to be included in the AO group for which the Canadian Federal Pilots Association is the certified bargaining agent.”

20        While the use of the word “group” in the order may be seen as referring to the AO classification in the employer’s classification structure, in my view it must be read to mean that the positions were from then on included in the AO bargaining unit. In light of the object and purpose of s. 58 of the PSLRA and the statutory limitations on the Board’s jurisdiction about the classification of positions, this is the only possible outcome of such an application.

21        In Canadian Federal Pilots Association v. Treasury Board, 2011 PSLRB 84, the CFPA applied to the former Board to have the Done Decision reviewed and clarified and filed in the Federal Court for enforcement. The former Board declined, stating that the request for clarification was really an attempt to modify the classification, an employer prerogative over which it had no jurisdiction. I agree with the former Board’s analysis when it looked at the proper construction and legal effect of the order, as follows at paragraph 89:

          89      To some extent, the wording of the Board’s order in 2008 PSLRB 42 may well have caused confusion. Instead of stating that “[t]he positions at issue are to be included in the AO group … ,” the Board could have written, “[t]he positions at issue are to be included in the AO bargaining unit …” [emphasis added]. The fact that the Board did not chose [sic] the latter formulation does not change the legal result. As the Board made clear in its decision, its task was always “… to place [those] positions into their proper bargaining units …” Assigning duties or classifying positions never “form[ed] any part of the determination.” Staffing requirements were also never at issue.

[Emphasis in the original]

22        Thus, the direct effect of a determination that the three positions were to be included in the AO bargaining unit was that the CFPA acquired representation rights with respect to those positions and their incumbents. The facts agreed to by the parties establish that accordingly, the employer diverted union dues to the new bargaining agent (the CFPA) and that it recognized the CFPA’s exclusive representation rights vis-à-vis the three positions.

23        In my opinion, the former Board’s determination also meant that the employees in question became legally entitled to the terms and conditions of employment set out in the AO collective agreement upon the determination being made.

24        Turning to the specific issue raised by the policy grievance, one must look at the wording of the collective agreement, specifically article 34, which provides for the AAA. After setting out in a preamble (at clause 34.01) the considerations that led the parties to include such an allowance in the collective agreement, which was the need to address retention and recruitment challenges, the eligibility criterion is worded as follows in clause 34.02:

34.02 Eligibility

Employees who are incumbents of positions (either on a substantive basis or acting appointment basis) in the Aircraft Operations bargaining unit shall be entitled to an Aviation Aircrew Allowance (AAA).

25        The employer places much emphasis on the wording of the preamble in support of its contention that it could not have been the parties’ intention to extend the allowance to non-AO positions or even to AO positions that did not exist when the allowance was introduced in the collective agreement. I cannot read any such intention in the preamble other than a statement by the parties that they were facing retention and recruitment challenges for the type of functions performed by employees covered by the agreement. The preamble is at best an aid to interpretation, if an interpretation of the text is required, and does not set out substantive rights or obligations. Rather, the substantive provision is set out in clause 34.02, which is the basis for the entitlement to the AAA.

26        While it is true that when applying or interpreting a collective agreement, the fundamental objective is to search for the parties’ intention, one must start the analysis with the actual wording that the parties agreed to. If the wording is clear and unambiguous, then there is no need to go beyond the words, and one must give effect to the words the parties chose unless doing so leads to an absurdity.

27        In my opinion, the wording of clause 34.02 is clear and does not require interpretation or contextual evidence to be understood. The entitlement to the AAA is couched in general terms, and it applies to all employees in the bargaining unit, regardless of their particular classifications or duties, tasks, or functions performed for the employer (e.g., civil aviation inspectors, helicopter pilots). Once it is established that employees are incumbents of positions in the bargaining unit, they are entitled to the allowance. That condition is clearly met in the present case, as a result of the former Board’s determination in the Done Decision.

28        The conclusion I reach in the face of the clear language of clause 34.02 does not lead to an absurd result, in my opinion. All employees occupying positions in the bargaining unit are entitled to the AAA. The three positions were included in the bargaining unit as a result of the former Board’s determination on the grounds that their primary purpose, as reflected in the duties and functions that the incumbents actually performed, was included in the AO group definition. I see no absurdity in an outcome that effectively treats the incumbents of the three positions the same way as all other bargaining unit employees.

29        The AAA was operative for bargaining unit employees from the date of the Done Decision to January 26, 2014, the effective date of the collective agreement that applied at the time of the hearing, at which point the allowance ceased to apply and instead was rolled in the AO pay grid as of that date.

30        Admittedly, applying all the terms and conditions of employment in the AO collective agreement is easier said than done, especially when it comes to salary. As both the Federal Court of Appeal, in Public Service Alliance of Canada v. Canadian Federal Pilots Association, 2009 FCA 223, and the former Board, in Canadian Federal Pilots Association v. Treasury Board, recognized, implementing the Done Decision is fraught with difficulty because the classifications of the positions did not change — and could not have changed — as a result.

31        Thus, the positions in the bargaining unit for which the parties negotiated terms and conditions of employment are expressly referenced by their classifications, which is understandable given that the PSLRA presumes a close correspondence between the bargaining structure and the employer’s classification plan, including the groups it established for classification purposes.

32        In that light, the three positions at issue depart from that rule and are at odds with such a structure. Including positions in the bargaining unit that bear a different classification does indeed cause a challenge to the parties when it comes to applying the terms of the agreement to their incumbents. However, the Federal Court of Appeal, by a majority decision, did not consider that situation an unreasonable outcome of the applications before the former Board and pointed to options that were open to the parties to address those issues (see paragraph 73 of the Court’s decision).

33        In fact, the three parties affected by the Done Decision signed a memorandum of understanding (MOU) that effectively maintained a form of status quo insofar as their terms and conditions of employment were concerned, pending the outcome of judicial review proceedings undertaken by the employer and the PSAC to have the Done Decision overturned. Clause 5 of the MOU makes it clear that the MOU was reached without prejudice to the bargaining agent’s rights flowing from the Done Decision. By signing the MOU, the parties agreed to a pragmatic approach designed to avoid unnecessary disruption in the workplace given the uncertainty of the outcome of the judicial review proceedings.

34        The signing of the MOU is certainly an indication of the parties’ understanding that the terms and conditions of employment would otherwise have changed as a result of the order. While the employer subsequently maintained the existing classifications of the three positions and continued to apply the terms and conditions of employment described in the TC and PA collective agreements to their incumbents, this situation continued to be a contentious issue as the bargaining agent never agreed to it, as stated at paragraph 13 of the agreed statement of facts.

35        Turning back to the sole question raised by the present policy grievance, the three positions at issue are unquestionably in the bargaining unit within the meaning of article 34 of the collective agreement.

36        The crux of the employer’s submissions is that the parties never intended to expand paying the AAA to non-AO positions, such as the three positions at issue, which were not included in the collective agreement when the AAA was originally negotiated in 1999. I do not subscribe to the employer’s view. I see nothing in the collective agreement that can be construed as excluding the three positions, once they are found to be appropriately in the AO bargaining unit. While it is true that the parties might not have anticipated that positions with different classifications might end up in the bargaining unit in the future as a result of an application under s. 58, this cannot oust the legal implications of such a determination by the Board.

37        Likewise, the employer’s suggestion that the AAA is payable only to incumbents of positions in the bargaining unit when it was negotiated is without merit. Surely, incumbents of positions created or staffed subsequently also became eligible to that allowance. Clear and express wording signaling the parties’ intention to achieve the result advocated by the employer would be required, in my view.

38        For the above reasons, I find that the grievance succeeds, at least in part. The corrective action originally requested by the bargaining agent was the payment of the allowance retroactive to the date the employees commenced duties in the three positions at issue. In the course of his argument, counsel for the bargaining agent indicated that the circumstances of this case supported paying the allowance as of June 20, 2008, which is the date on which the employees became members of the bargaining unit as a result of the Done Decision. I agree that the employees’ entitlement commenced on that date and not before.

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

V. Order

40        The grievance is allowed to the extent described as follows.

41        The employer violated clause 34.02 of the collective agreement by not paying the AAA to the incumbents of the three positions described in these reasons.

42        The employer is to pay the allowance to the employees at issue from the time their positions were determined included in the AO bargaining unit by order of the former Board (the Done Decision), i.e., June 20, 2008.

43        I remain seized of jurisdiction in this matter if the parties have any difficulty implementing my decision.

January 31, 2017.