Burgess v. Treasury Board (Department of Fisheries and Oceans)
Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act
- Date: 20170815
- File: 566-02-12633 and 12634
- Citation: 2017 FPSLREB 20
Before a panel of the Federal Public Sector Labour Relations and Employment Board
KATHLEEN BURGESS AND JEAN-PHILIPPE PAQUET
(Department of Fisheries and Oceans)
Burgess v. Treasury Board (Department of Fisheries and Oceans)
In the matter of two individual grievances referred to adjudication
- Nathalie Daigle, a panel of the Federal Public Sector Labour Relations and Employment Board
- For the Grievors:
- Dominic Caron, counsel
- For the Employer:
- Christine St-Amant-Roy, counsel
February 2 and 3, 2017.
REASONS FOR DECISION
1 Kathleen Burgess and Jean-Philippe Paquet (“the grievors”) are employees of Fisheries and Oceans Canada (“the employer”). They allege that the employer violated paragraph b of the “General” section, under the heading “Lay-Days”, in Appendix “H” of the collective agreement between the Treasury Board and the Canadian Merchant Service Guild for the Ships’ Officers Group. In particular, they allege that the minimum 14-day notice required for any changes to their work schedules was breached. As corrective measures, they seek reimbursement of the compensatory leave days that they used and for which the minimum 14-day notice was not given.
2 The employer claims that the work schedule changes were caused by unexpected delays and that as a result, 14 days’ notice could not be given. Still, it advised the grievors of them as soon as possible. So, it claims that it did not violate the Ships’ Officers Group collective agreement at Appendix “H”, General section, paragraph b, under the Lay-Days heading.
3 The notice of reference to adjudication for the grievance was filed with the Public Service Labour Relations and Employment Board (PSLREB) on June 7, 2016.
4 On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the names of the PSLREB and the titles of the Public Service Labour Relations and Employment Board Act, the Public Service Labour Relations Act, and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act, and the Federal Public Sector Labour Relations Regulations.
5 As I will explain in this decision, I conclude that the grievors did not demonstrate that the employer violated the Ships’ Officers Group collective agreement at Appendix “H”, General section, paragraph b, under the Lay-Days heading.
6 Ms. Burgess is a logistics officer, and Mr. Paquet is an electrical officer. Both work aboard the vessel Martha L. Black in Québec. They are covered under the Ships’ Officers Group collective agreement.
7 According to the 2015-2016 “Fleet Operations Plan”, a first group of employees, including Ms. Burgess, was to board the vessel Martha L. Black on August 13, 2015. Another group, including Mr. Paquet, was to board on August 17, 2015. Due to unexpected circumstances, Ms. Burgess’s boarding date was delayed once, and Mr. Paquet’s was delayed twice. As those changes were made a few days before the boarding dates, the two grievors did not receive the full 14-days’ notice of the changes to their schedules.
8 On October 6, 2015, the two grievors each filed a grievance in which they alleged that the employer had violated the Ships’ Officers Groupcollective agreement at Appendix “H”, General section, paragraph b, under the Lay-Days heading. When they made their filings, they requested the following corrective measures: pay equivalent to 14 days of work and the accumulation of 14 lay-days, in accordance with Appendix “H”, and the reimbursement of annual compensatory leave. Under the fleet’s lay-day system, a continuous period of 28 days of work is usually followed by a period of 28 lay-days of leave.
9 On November 3, 2015, at a hearing, the grievors’ bargaining agent representative amended the corrective measures requested with respect to reimbursing the leave that the grievors had used. Ms. Burgess asked that the employer reimburse her 5 days in her lay-days bank to cover the difference from the required 14 days’ notice. Mr. Paquet asked that the employer reimburse him 8 days in his lay-days bank to cover the difference from the required 14 days’ notice.
10 On December 23, 2015, at the second level of the grievance process, the employer responded that it had complied with the collective agreement. It noted that the memorandum of understanding on compensatory leave allows for that leave to be accumulated to cover periods in which a vessel is not operational. It added that the Martha L. Black had not been operational, that that had caused the boarding delay, and therefore that the grievors had had to use compensatory leave. The grievances were dismissed.
11 On May 16, 2016, as a final response to the grievors’ grievances, the employer stated that their schedule changes had resulted from unexpected delays and that therefore, it had been impossible to provide a full 14 days’ notice. However, it noted that the grievors had been advised of the changes as soon as possible. Thus, the grievances were dismissed.
12 On June 7, 2016, the grievors referred their grievances to adjudication.
13 At the hearing on February 2 and 3, 2017, the corrective measures that the grievors had requested were amended again. Mr. Paquet asked that the employer reimburse him 4 days in his compensatory leave bank to cover the difference from the required 14 days’ notice. Ms. Burgess asked that the employer reimburse her five days of compensatory leave rather than lay-days.
III. The question at issue
14 Essentially, this case involves only one question: Did the employer violate the Ships’ Officers Group collective agreement at Appendix “H”, General section, paragraph b, under the Lay-Days heading?
15 That question raises the following two issues:
- Does the Ships’ Officers Groupcollective agreement at Appendix “H”, General section, paragraph b, under the Lay-Days heading, create an obligation for the employer to give a minimum of 14 days’ notice in all cases?
- If so, what is the appropriate corrective measure?
IV. Preliminary objection
16 The grievors asked me to consider a decision of the former Public Service Labour Relations Board (PSLRB) from 2005, Boudreau v. Treasury Board (Department of Fisheries and Oceans), 2005 PSLRB 160, involving the same employer and a similar collective agreement provision. The employer objected because that decision was rendered via an expedited hearing. I took the preliminary objection under reserve.
17 In Boudreau, while acknowledging that 14 day’ notice had not been given, the employer maintained that only a declaratory order was needed since the collective agreement imposed no penalty for failing to provide the required notice.
18 The adjudicator hearing the case disagreed with the employer’s position. According to him, a breach of the obligation to provide the required 14 days’ notice of a schedule change had to be remedied. Therefore, he allowed the grievance and ordered that the grievors be covered by the more-beneficial 1.36 lay-day system for a period of 14 days, the equivalent of a 14-day notice period, instead of the less-beneficial 1.17 lay-day system.
19 First, I note that the facts in that case differ from those in these grievances because the change to the vessel’s schedule in Boudreau impacted the lay-days the grievors had accumulated because of either a more-beneficial or a less-beneficial system. Additionally, and more importantly, the decision was made via an expedited hearing. The following note was added to the cover page of Boudreau:
Note: The parties have agreed to deal with the grievance by way of expedited adjudication.The decision is final and binding on the parties and cannot constitute a precedent or be referred for judicial review to the Federal Court.
20 So, does that decision constitute a precedent?
21 After considering that note and carefully examining the relevant provisions of the collective agreement and the parties’ arguments, I find that Boudreau cannot constitute a precedent because it arose from an expedited hearing that the parties agreed to use to resolve the dispute quickly. Therefore, no full adversarial hearing on the issue took place. Thus, my view is that the weight of such a decision cannot be greater than that of a decision made following a full adversarial hearing.
22 I also note that with respect to its own decisions, the Board is not required to respect the principle of stare decisis, meaning “to stand on decided cases”, given that it strives to be as consistent as possible and that it recognizes that any change to an earlier decision must be firmly justified and subject to rigorous review.
23 Therefore, I have decided to not consider that decision.
V. Summary of the facts
24 The grievors are members of the Ships’ Officers Group bargaining unit, which is governed by the collective agreement between the Treasury Board and the Canadian Merchant Service Guild that expired on March 31, 2014.
25 Ms. Burgess and Bernard Talbot, a labour relations officer with the Canadian Merchant Service Guild, testified at the hearing in support of the grievors’ position.
26 The employer called the following witnesses: Lisa St-Pierre, small vessel officer; Nancy Gagnon, seagoing personnel supervisor; and Lise Richard, marine superintendent, Fleet Directorate.
27 Mr. Talbot explained that the operations plan is usually published in February or March for the entire fleet and that updates are made over the course of the year.
28 Mr. Talbot affirmed that on August 4, 2015, Ms. Burgess and Mr. Paquet were advised that due to unforeseen circumstances, their next boarding dates had been delayed and that they had not received the entire 14 days’ notice. Thus, to be paid, the grievors could draw from their compensatory leave banks or take annual leave. Because they felt that they were entitled to their normal pay for the difference from the required 14 days’ notice, Mr. Talbot prepared the grievances that the grievors filed.
29 Now retired, Ms. Burgess explained that she had to board the vessel Martha L. Black on August 13, 2015. Nine days before that date, on August 4, 2015, she was advised that her boarding would be postponed to August 31, 2015, which was thus five days’ notice short. To continue receiving her salary, she used days from her compensatory leave bank to cover the days on which she did not work.
30 According to Mr. Paquet, he was to board the vessel Martha L. Black on August 17, 2015. Thirteen days before then, on August 4, 2015, he was advised that his boarding would be postponed to August 31, 2015, which was thus one day of notice short. On August 20, 2015, 11 days before August 31, 2015, he was advised that his boarding would be postponed to September 3, 2015. Thus, in addition to the one day of notice as mentioned, he was short three others, for a total of four days of notice. He used days from his compensatory leave bank to cover the days on which he did not work.
31 Mr. Talbot mentioned that had Ms. Burgess and Mr. Paquet worked 5 and 4 days, respectively, the differences from the required 14 days’ notice, they would have accumulated a corresponding number of lay-days. Furthermore, had they received enough days of notice, they would not have worked but would have used the days accumulated in their lay-day banks, compensatory leave, or annual leave to continue receiving their pay.
32 Mr. Talbot clarified that in the event of a change to the work schedule on the Martha L. Black, the minimum notice of 14 days is required because the officers do not all live in Québec and must plan for their time away from home.
33 He added that the collective agreement provision in question (paragraph b) does not impose any penalty for failing to give 14 days’ notice of a schedule change. According to Mr. Talbot, any failure of the obligation to give the required 14 days’ notice following a schedule change must be appropriately remedied.
34 Mr. Talbot also explained that “compensatory leave” is paid leave that replaces the cash overtime compensation set out in article 30 of the collective agreement. Under clause 30.14, overtime and all other pay and compensation under that clause is accumulated as compensatory leave that is then credited to the officer.
35 On that topic, Ms. Gagnon clarified that compensatory leave is accumulated when an officer works overtime or on a statutory holiday or when a statutory holiday falls on a paid lay-day to which the officer is entitled because he or she worked a certain number of days under the lay-day crewing system. She explained that that leave is specifically accumulated to cover periods in which a vessel is inactive. The compensatory leave limit is 400 hours.
36 Mr. Talbot pointed out that in certain cases and with the employer’s consent, compensatory leave can be paid in cash when more than 400 hours of it has been accumulated without being used. Thus, it can be used as paid leave or taken in cash at the officer’s request and the employer’s discretion.
37 However, Ms. Richard clarified that the employer allows officers to accumulate more than 400 hours of such credits to ensure that they have enough available when a vessel is inactive.
38 The Treasury Board and the Canadian Merchant Service Guild have a memorandum of understanding on compensatory leave that allows compensatory leave credits to be accumulated to cover periods in which a vessel is not operational. However, Mr. Talbot emphasized that it does not state that the employer can give less than 14 days’ notice if a work schedule is changed.
39 Ms. St-Pierre, who was the acting seagoing personnel supervisor in August 2015, explained that when she assumed that position on August 4, 2015, the Martha L. Black was not operational but was at a shipyard in Hamilton, Ontario. Ms. St-Pierre’s role was to ensure that qualified seagoing staff would be present on the vessel once it was operational.
40 She explained that Public Works and Government Services Canada (PWGSC) was responsible for the repair contract for the vessel. A project officer from the employer, the vessel maintenance manager (the project lead), was authorized to contact PWGSC to obtain information about the work status and the timelines for each stage. However, that person received information from PWGSC very slowly. Ms. St-Pierre pressed the person leading the project for information on when the vessel would be operational. She affirmed that she contacted that person regularly, almost daily, but that she too received information very slowly.
41 Ms. Richard also explained that PWGSC is responsible for vessels when they are in dry dock and that it must advise the employer of delays that arise on vessel repairs. Specifically, PWGSC advises project leads of work status.
42 According to the 2015-2016 Fleet Operations Plan, the Martha L. Black was supposed to be in dry dock until August 17, 2015. However, the vessel’s deployment was delayed under the revised plan. According to the plan change, a first group was to board the ship on August 31, 2015, a second on September 10, and a third on September 13. Ms. Richard explained that in August 2015, the Martha L. Black needed major and unforeseen repairs. The main cause for the delay was the replacement of the ship’s engine block.
43 Update emails from the person leading the project were adduced in evidence. In particular, on August 4, he advised his colleagues that a delay of at least two weeks, possibly three, was expected for the work. Ms. St-Pierre affirmed that within minutes of receiving the email confirming the delay, she immediately advised the three crew officers by telephone, who in turn immediately advised the seagoing staff of the changes by telephone or email. The officers in question could then have used accumulated leave days and could have continued to receive their pay despite the vessel being not operational.
44 Ms. Richard also explained the purpose of “Operations Circular OC 02-2014”. According to it, employees are responsible for accumulating enough leave to cover crew reductions during refit and decommissioning periods, due to unplanned service, and due to seasonal layoffs. Similarly, it states that generally, leave is requested and authorized in the following order: (1) lay-days, (2) annual leave accumulated during the year, and (3) banked annual or compensatory leave. However, Ms. Richard stated that when 14 days’ notice cannot be given to officers due to exceptional circumstances, the employer does not apply that established order. Therefore, the choice of leave type is at the officers’ discretion.
45 Mses. Richard and St-Pierre clarified that the standard practice is for crew officers to try to offer assignments on other vessels to employees who have no more credits accumulated in their different leave banks and who want to work, to be paid. In some cases, an officer may also ask to take training. Furthermore, according to documentation adduced in evidence at the hearing, officers are encouraged to take leave during the periods planned with no operations and for refits indicated in the Fleet Operations Plan.
46 Ms. St-Pierre’s acting appointment ended when Ms. Gagnon returned from her vacation in late August 2015. Ms. Gagnon noted that leave paid under code 699 (other paid leave) had been granted to officers who were to board on August 13 or 17, 2015. She explained that that leave was never granted to seagoing staff in the event a vessel was inactive. She emphasized that instead it was for resolving exceptional difficulties encountered by an employee during extraordinary events, such as emergencies, e.g., if an officer had to return home due to a fire or to water damage. She clarified that that leave was authorized only for short times and not for a period in which a vessel was inactive, as compensatory leave was provided for that purpose.
47 When she returned from vacation, Ms. Richard also noted that leave paid under code 699 had been authorized due to the vessel’s inactivity. She and Ms. Gagnon ensured that it was corrected. The officers were advised that they could use their compensatory leave or other accumulated leave but not leave paid under code 699.
48 This grievance is about interpreting certain provisions of the Ships’ Officers Group collective agreement.
49 The Ships’ Officers collective agreement at Appendix “H”, General section, paragraph b, under Lay-Days, states the following:
Officers will be informed of the anticipated work schedule for the operational year.Officers will be notified of changes to the anticipated work schedule at the earliest possible time.Normally, officers will receive two (2) months’ notice of changes to the anticipated work schedule, with a minimum of fourteen (14) days’ notice.
50 In this case, we must consider the English and the French versions of paragraph b. The French version states the following:
L’officier est informé de l’horaire de travail prévu pour l’année. On le prévient le plus tôt possible de tout changement à l’horaire de travail prévu. Normalement, on lui donne un préavis de deux (2) mois de tout changement à l’horaire de travail prévu, le préavis minimal étant de quatorze (14) jours.
51 The memorandum of understanding on compensatory leave allows for such leave to be accumulated to cover periods in which a vessel is not operational. It states the following:
In accordance with Article 39, the parties agree to amend the Collective Agreement as follows:
Notwithstanding clause 30.14, for the duration of this Collective Agreement, the Guild and the Employer recognize the benefit to all parties of Officers accumulating compensatory leave credits for use in special circumstance [sic] noted in (1) and (2) below when Coast Guard Vessels may be non-operational.
Accordingly Officers are encouraged to accumulate and retain compensatory leave credits sufficient to cover:
1. periods during which the vessel will be non-operational by reason of refit, repair, seasonal lay-up;
2. periods during which the employee is not required to work in accordance with a rotational or relief crew system.
To facilitate such accumulation of compensatory leave, the Employer undertakes to provide officers with as much notice as possible of these periods.
52 According to the grievors, the employer is obliged to provide the minimum required 14 days’ notice of a schedule change, and it must appropriately remedy any failure of that obligation. The appropriate remedy consists of paying officers for the difference from the required 14 days’ notice. The workday includes a period of 12 hours of work. The officers are paid 6 hours per workday and accumulate a lay-day of 6 hours. A paid day (6 hours of pay and 1 lay-day equivalent to 6 paid hours) would be the compensation to replace each day missing from the minimum required 14 days’ notice.
53 The grievors referred me to two definitions of the French term minimal (minimum) used in the collective agreement at Appendix “H”, General section, paragraph b, under the heading Lay-Days. One was taken from Larousse (from its website), and the other was taken from the Centre National de Ressources Textuelles et Lexicales (CNRTL).Larousse defines it as “[translation] that which achieves its minimum, that is at its lowest degree”, and the CNRTL defines it as “[translation] that which achieves its lowest degree, its smallest value; that constitutes a minimum.”
54 According to the grievors, paying them normal workdays (12 hours) for the difference from the required 14 days’ notice would be acceptable compensation. They drew an analogy to the obligation under common law or provincial jurisprudence of giving reasonable notice for termination without cause. The grievors pointed out that in such cases, the employer must provide compensation in lieu of notice.
55 In support of their position, the grievors referred me to Horner v. Treasury Board (Department of National Defence), 2012 PSLRB 33 (application for judicial review before the Federal Court dismissed). In that case, the grievance was allowed. The grievor, a deck officer, filed a grievance alleging that he had not received sufficient notice of a change to his work schedule, which had violated his collective agreement. The employer acknowledged failing to comply with the collective agreement requirements but did not offer any remedy. The adjudicator found that the collective agreement provision under review, on 48 hours’ notice, was binding.
56 The grievors also referred me to Federal Government Dockyard Trades and Labour Council (East) v. Treasury Board (Department of National Defence - includes DRDC), 2015 PSLREB 25. In that case, the grievance was allowed. The bargaining agent filed a group grievance on behalf of two employees working as communication systems technicians at a fleet maintenance facility in Halifax, Nova Scotia. They had attended training outside their workplace. Once at the site, they were informed of a shift change. The adjudicator concluded that the only way to give any meaning to the clause in question, clause 15.08 (24 hours’ notice) of the relevant collective agreement, was to conclude that the parties intended it to place a minimum limit on the otherwise broader and more flexible limit established by clause 15.07 (as much notice as possible).The adjudicator concluded that the notice period for a shift change might have to be greater than that under clause 15.08 (24 hours’ notice) if practicable (as provided in clause 15.07) but that it could never be less than the period specified in clause 15.08.
57 The grievors also pointed out that as set out in Brown and Beatty, Canadian Labour Arbitration at para. 2:1505, the fundamental purpose of awarding damages and interest is to place the grieved party in the same position he or she would have been in had the collective agreement not been violated.
58 Finally, the grievors referred me to Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers of Canada, Local 30,  N.B.J. No. 117 (QL). In that decision, the New Brunswick Court of Appeal ruled that the presumption must be that the parties intended what they said and that the meaning of a collective agreement provision is to be first sought in the express provisions. In this case, the grievors submitted that the collective agreement wording is not ambiguous and that it states that the employer is required to give a minimum of 14 days’ notice for any schedule changes. They added that it failed to meet that obligation. Under the circumstances, they pointed out that they are entitled to an appropriate remedy, i.e., their normal pay (12 hours of work per day) for the difference from the required 14 days’ notice.
59 The employer pointed out that it had made a reasonable effort to advise the officers of the change as soon as possible. It added that the schedule change had arisen from exceptional circumstances, i.e., the vessel needed major and unforeseen repairs, and that it had been impossible to give the officers the minimum 14 days’ notice. According to the employer, the word “normally” in paragraph b clearly indicates that cases will arise in which the range of 14 days to 2 months of notice for a schedule change will not be possible.
60 According to the employer, given the circumstances, the collective agreement was respected. Furthermore, the memorandum of understanding on compensatory leave provides for such leave to be accumulated to cover periods in which a vessel is not operational, which is the case when it is being repaired due to unforeseen events. Thus, it was appropriate for the officers to use compensatory leave to cover the period in which the vessel was inactive, including the 4 or 5 days for which 14 days’ of notice was not provided, as set out in the memorandum.
61 The employer also noted that another operations circular OC 11-2015, also stipulates that the employer must provide as much notice as possible when unforeseen circumstances result in schedule changes for officers. However, the employer added that the circular does not mention that notice can never be less than 14 days when unforeseen circumstances arise over which the employer has no control. Still, it acknowledged that it has a duty to promptly and diligently advise officers of schedule changes caused by unforeseen circumstances. So, it acknowledged that the minimum of 14 days’ notice must always be given, when possible.
62 The employer also pointed out that paying the equivalent of one day of 12 hours of work that were not worked for each day short of the required 14 days’ notice for every officer on a large vessel like the Martha L. Black would result in a significant financial cost. It also added that making such a payment as a remedy was never the subject of any negotiations. It suggested that in the event of a disagreement, it might be best to consider renegotiating those agreements, namely, the collective agreement and the compensatory leave memorandum.
63 The employer also referred me to 13 decisions, which set out the principles applicable to interpreting a collective agreement. They include Telus Communications Company v. Telecommunications Workers Union, 2009 BCSC 1289 at paras. 99 to 104, and Lessard v. Treasury Board (Department of Transport), 2009 PSLRB 34 at para. 32. It also referred me to paragraph 10 of Irving Pulp & Paper, which states that when arbitrators search for the parties’ intentions, they generally begin with the principle that the provision in question should be interpreted according to its normal or ordinary sense, unless that interpretation is likely to lead to an absurdity or inconsistency with other provisions of the collective agreement.
64 Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55, also examines the interpretation or meaning of a collective agreement provision. In particular, Wamboldt mentions that a benefit that has a monetary cost to the employer must be clearly and expressly granted under the collective agreement.
65 The employer also noted that the interpretation must be limited to the express terms and conditions of the collective agreement and that it cannot make new ones or modify those that are clear (see Cooper v. Canada Revenue Agency, 2009 PSLRB 160 at paras. 32 to 34, and Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112 at paras. 50 and 51.
66 I agree with the employer’s position. I find that the words “normally” and “minimum” in the provision in question must be interpreted in their normal and ordinary sense. As for the word “minimum” (the “minimum” of 14 days’ notice), I agree with the meaning proposed by the grievors. However, the use of the word “normally” in paragraph b clearly indicates that there will be cases in which the range of 14 days to 2 months of notice for a schedule change will not be possible. Both the English and French versions of paragraph b state that “normally”, the employer gives 2 months’ notice of any change to the planned schedule and a minimum of 14 days’ notice. I stress the word “normally” at the beginning of the sentence (and the word normalement in the French version). In my opinion, the grievors’ presumption that the employer can never give less than 14 days’ notice is incompatible with the word “normally”, used at the start of the sentence.
67 Also in my opinion, paragraph b does not create an implicit obligation to pay all ships’ officers for missing days of notice — the difference from the required 14 days’ notice — when exceptional circumstances arise, particularly major and unforeseen repairs to a vessel. When a vessel is immobilized due to unforeseen circumstances, a method for remedying the problem was negotiated. The memorandum of understanding on compensatory leave expressly allows compensatory leave to accumulate to cover periods when a vessel is not operational.
68 To summarize, I note that the employer must give the most notice possible when unforeseen circumstances arise. However, nobody is required to do the impossible. Indeed, when exceptional circumstances arise, it may be impossible for the employer to give the minimum of 14 days’ notice. In such cases, it gives the most notice possible. But this is less than the desired 14 days.
69 Similarly, as set out in Irving Pulp & Paper, at paras. 10 and 11, in addition to interpreting the parties’ words according to their ordinary sense, I must consider the rest of the collective agreement, as the agreement as a whole forms the context in which the words used must be interpreted. In this case, in addition to Appendix “H” of the collective agreement, I have also considered the memorandum of understanding on compensatory leave, which provides that that leave is to be accumulated to cover periods in which a vessel is not operational. I also considered the operations circular OC 11-2015, which stipulates that the employer must give as much notice as possible when unforeseen circumstances result in a change to officers’ schedules.
70 Thus, the preferred interpretation does not result in an absurdity or inconsistency with the other collective agreement provisions. Consequently, after reading all of Appendix “H” of the collective agreement, the provisions of the compensatory leave memorandum of understanding, and the operations circular OC 11-2015, I conclude that compensatory leave is accumulated to provide compensation to officers when a vessel they are to board is not operational.
71 In my opinion, had the parties intended for the employer to pay all seagoing staff 12 hours of pay to replace each day of missing notice, they would have clearly stated so.
72 I also note that the two cases cited by the grievors, i.e., Horner and Federal Government Dockyard Trades and Labour Council (East), involve different clauses and work schedules than does this case. Those cases involve changes to individual employee schedules, not schedule changes for all seagoing staff on a vessel, due to unforeseen repairs. Therefore, the provisions the parties in those cases negotiated do not have the same scope as the one negotiated in this case.
73 In particular, in Federal Government Dockyard Trades and Labour Council (East), the employer sent two employees to Victoria, British Columbia, for training, to observe a communications system being installed on a vessel because the same system was to be installed later on vessels on the east coast. The employees went to Victoria and expected to observe the installation during the day shift on the day after they arrived. On the evening of their arrival, the Victoria team advised them that the installation had been postponed to the following night shift. Those facts differ widely from the facts in this case.
74 Finally, I am satisfied that in this case, the employer advised the grievors of their schedule changes as soon as possible. They were advised that their boarding would be delayed on the same day on which the staff responsible for boarding received the news. Thus, the officers were able to use compensatory leave while awaiting their next departure on the Martha L. Black.
75 For all of the above reasons, I make the following order:
76 The grievances are dismissed.
August 15, 2017.
a panel of the Federal Public Sector
Labour Relations and Employment Board