HomeMy WebLinkAbout1991-0903.Quinn&Vinall.92-08-31 ONTARIO EMPL O YES DE LA COURONNE
CROWN EMPLOYEES DE L'ON TARIO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
~'80 OUNDAS ~;TREET WEST, S~JtTE 2,100, TORONTO, ONTARIO, MSG ~Z8 TELEPHONE/T£L~PHOt.4E.. (4r6) 326-~358
180, RUE DUNDAS OUEST, BU.REAU 2;00, TORONTO ~ONTAF~tOI,. MSG "IZ8 FACS/MI.LE/T~LC~COPlE .' (416) 326-1396
903/91
Under
TIlE CROWN F, HPLOYBBS COLLECTIVE BARG&iNING ACT
Before
THE GRIEVANCE SETTLEHENT BOARD
BETWEEN
OPSEU (Quinn/V~nall)
Grievor
- Mld-
The Cron'l-in Right-of--Ontario
(Ministry oE Naturat Resources)
Employer
BEFORE: B. Kirk~ood Vice-Chairperson
H. O'Re~an Member
D. Clark Member
FOR TH~ H. Law
GRIEVO~ Grievance Officer
Ontario Public Service Employees Union
~OR'~E~ M. Failes
BMPLOYBR Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HE~RING November 5, 1991
January 27, 1992
Page 2
DECISION
Each grievor is classified as a Pilot 4 in the
Pilot Classification series. The' union claimed that the
grievors' job responsibilities do not properly fit the Pilot
4 category, and ask the board to properly classify each
grievor as a Pilot 5. Alternatively, the union submitted that
if the Board did not find that the Pilot 5 was the proper
classification, it ought to exercise its jurisdiction and
order the employer to create a classification that matches
the grievors' jobs.
The Pilot Class Standards were issued on June 17,
1991, effective January 25, 1990. The Class Standards state:
PREAMBLE
-- PILOT SERIES
The Pilot series covers positions of employees who
are responsible for piloting or co-piloting fixed
and rotary wing aircraft operated by the Government
of Ontario. Work is normally carried out in urban
and bush environments using landing facilities
which range from those available at large airports
(e.g. Pearson international, Ottawa, Windsor), to
small airports (eog. Muskoka, Moosonee, Geraldton,
Red Lake) to airstrips with minimal communication
equipment (e.g. Fort Hope, Pickle Lake, Fort
Severn) as well as gravel: runways, lakes and
rivers. Helicopter landing areas range from
licenced helipads to unimproved bush sites.
Positions allocated to this series may require that
pilots fly aircraft in other provinces and/or,
under International Flight Rules, to other
countries.
Positions is this series carry out a range of
functions including fire suppression, ignition,
detection and reconnaissance, transporting cargo
and personnel (eg. fire and survey crews and
equipment, provincial government officials,
wildlife and external cargo) and program support
(eg. game census, surveys, aerial photography, fish
Page 3
planting and training of pilots). They may also
assist ih search and rescue activities, respond to
natural disasters or environmental emergencies (eg.
flooding, evacuation and mercy flights).
There are five levels is this class series.
Allocation of positions is based on the following
criteria:
Criteria
1. Rank Co-pilot Pilot
2. Size of Aircraft(i) Small Large
3. Wing Type Fixed Rotary
4. Number of engines Single Multi
5. Flight Rules Visual Instrument
or
combinat ion
(1) Small -'6,690 kg. (1~,000 lbs.) gross take-
off weight or less.
Large - over 6,690 kg. (15,000 lbs.) gross
take-off weight
Two compensable factors are reflected in the above
criteria. Thes6 are Accountability and Skills and
Knowledge. Accountability is represented by
Criteria I and Skills and Knowledge. by the
combination of Criteria- 2;-3, 4, and 5. In the
operatio~ of aircraft equal weight is given to
Accountability and Skills and Knowledge.
For allocation to this Series, positions must
require that incumbents possess a valid Commercial
Pilot's License issued by Transport Canada. In
'addition to the criteria set out above, specified
Skills, and Knowledge for each class level are
determined by Transport Canada Licencing Standards.
The five levels of the series are described as
follows:...
p~1o9 4
This class covers positions where the incumbents
perform as pilots of small multi-engine fixed wing
aircraft operated under Visual and Instrument
Flight Rules or single-engine rotary wing aircraft
operated under Visual Flight Rules.
Page 4
This class covers positions where the incumbents
perform as pilots of large Multi-engine fixed wing
aircraft operated under. Visual and Instrument
Flight Rules or multi-engine rotary wing aircraft
operated under Visual Flight Rules.
For allocation to this level, pilots operating the
large multi-engine fixed wing aircraft must have an
Airline Transport Pilot's Rating.
The grie~or Roy Vinall is located in Sudbury and
the grievor A1 Quinn is located in Timmins. Both grievors
pilot the Turbo Beaver, a single engine fixed wing aircraft,
and the DHC-6 "Twin Otter", a t~in engine fixed .wing
aircraft. They also are co-pilots of the larger CL-215.
They fly under both Visual Flight Rules and Instrument Flight
Rules.
Mr. Quinn flies the Turbo Beaver approximately 10%
of the time, the DHC-6 approximately-60% of the time and the
CL-215 approximately 30% of the time. .Mr. Vinall estimates
that he pilots the DHC-6 approximately 80-85%, and the
balance of the. time he pilots the Turbo Beaver. He has
however, trained as a co-pilot for the CL-215.
The Turbo Beaver is a single pilot, 7 passenger
plane that has a maximum gross take-off weight of 5,370 lbs.
The employer does not allow the pilot to fly this plane under
Instrument Flight Rules.
The DHC-6 has been modified structurally to
accommodate its use as a water bomber. The aircraft has been
strengthened to increase its maximum weight from 12,500 lbs.
to a maximum weight of 15,000 lbs. The modifications have
been approved by the Department of Transport. Although the
DHC-6 is designated by the manufacturer as a single pilot
plane, this employer uses two pilots whenever it is flown
under Instrument Flight Rules. When the plane is used for
water bombing, only one pilot is allowed. The plane is also
used for aerial photography and for carrying passengers.
This aircraft is used with either wheels or floats.
The Cl-215 has a maximum gross take-off weight of
43,500 lbs. This aircraft always has two pilots on board.
Although the aircraft can be flown under Instrument Flight
Rules or Visual Flight Rules, the employer uses this aircraft
solely for water bombing under Visual Flight Rules.
The Az~gument~
Union's counsel argued that the Board cannot modify
the class standards and must accept the standards as stated.
The 'employer made an error when converting pounds to
kilograms and now must bear the responsibility for the error.
Union;~-counsel argued that extrinsic, evidence cannot be used
to interpret the class standards, as it is not a collective
agreement that has a patent or latent ambiguity.
Union's counsel argued that the determining
measurement was the kilogram. The Class Standards specified
that if the maximum take-off weight of an aircraft was 6,690
kilograms or less, it was a "small" aircraft. Therefore, as
the maximum take-off weight of'the DHC-6 is 6,770 kilograms.,.
the DHC-6 is a "large" aircraft as defined by the class
standards. He argued that if the Board were to rely on
15,000 lbs. which is equivalent to 6,770 kilograms as the
determining factor for classifying an aircraft as being
either large or small, the Board would be amending the class
standards, which it has no Jurisdiction to do.
Union's counsel argued that the skills and
abilities required to fly the modified DHC-6 are greater than
Page 6
those required to pilot a CL-215. The modifications made to
the DHC-6, to allow the DHC-6 to carry a maximum take-off
weight of 15,000 lbs., places the DHC-6 outside the
manufacturer's usual specifications~ As a result the DHC-6
is more difficult to fly and has less maneuverability than
the larger CL-215. The grievors fly the DHC-6 in bad
'weather, icy and snow conditions and at night, under
Instrument Flight Rules. By contrast, the CL-215 is easier
to fly as it has not been modified to carry extra weight and
it is flown under almost exclusively during the day in clear
weather under Visual Flight Rules. Union's counsel argued
that the grievors do not have the assistance of co-pilot when
they are flying the DHC-6 as a wate~ bomber and they. must
take on all the responsibilities for the aircraft. On the
other hand, the pilot of the CL-215 always has the assistance
of a co-pilot. Union's counsel further submitted that the
grievors, in their capacity as co-pilot of the CL-215, also
act and take on the responsibilities of the pilot/captain of
the CL-215. ' ~
Union's counsel argued that. the requirement to have
an Airline Transport Pilot's Rating ("ATR") to be a Pilot 5
was creating a "distinction without a difference." Union's
counsel argued that the Department of Transport ("DOT") does
not require pilots to have an ATR pilot, licence for aircraft
weighing up to 44,000 lbs. A pilot can fly both the DHC-6
and the CL-215 with a Senior Commercial Pilot licence. He
argued that the requirement for a Pilot 5 to have an ATR
rating, was made by the Ministry in contemplation of the
change to DOT standards in 1994, and has no bearing on the
pilot's level of skill. Union's counsel argUed that an ATR
rating is an artificial distinction', when the skills,
knowledge and accountability are substantially the same
between a Pilot 4 and a Pilot 5. Therefore he argued that
there ought to be no difference in a wage classification.
The union relied on OPSEU(Sturch) a~d The Crown in Right
Page 7
on Ontario (Ministry of the Attorney-General) G.S.B.
0611/86 (Forbes-Roberts) in support of its position that the
grievors ought to to classified at the higher classification
where there is no difference in the positions.
Ministry's counsel agreed =hat the board's role is
not to amend the class standards, but to interpret the
standards. Employer's counsel submitted that this board
ought to use the intended meaning of the class standards.
Employer's counsel submitted that as in OPSEU(Aird) and
The Crown in righ~ of Ontario (Ministry of Consumer
and Co-~ercial Rela~ions) G.S.B. 1349/87 (Slone), the
board ought to apply the obvious meaning of the standard,
where the drafter of the document did not use the proper
words. To use the kilogram measurement would be to apply an
obvious error. Employer's counsel argued that for the board
to find that the grievors were Pilot 5s, would require the
board to rely on either an erroneous weight or would require
the board to rewrite the stand~=d, which it has no
jurisdiction to do.
Employer's argued that th~ class standards do not
differentiate degrees of difficulty for purpo'ses of
compensation. The employer avoided the subjective criteria
of assessing difficulty, by relying on objective criteria for
its compensable factors. There are clearly defined criteria
for compensable levels. This criteria does not include the
requirement to have an ATR rating. The requirement to have an
ATR licence is a requirement of the Pilot 5 position only.
The Decision
Firstly, we must accept the Class Standards as we
find them. The employer has the exclusive function to set
the class standards and our function under section 19(2) of
the Crown Employees Collective Bargaining ACt is to
P~gc 8
determine whether the grievors are properly classified within
the class standards set by the employer. Our jurisdiction is
to interpret the standards when determining whether job
duties and responsibilities fit a classification, but we do
not have the jurisdiction to amend 'the class standards. As
in OPSEU(Anderson) and the Crown in Right of Ontario
(Ministry of Natural Resou=ces) G.$.B. %497/85,
(Roberts), the board has to determine whether the employee is
properly classified and not whether the standard is properly
drawn. Vice-chair Roberts stated "...It means apply the
position to an existing classification,system. It does not
embrace drafting the components of that system .... ". The
onus is on the union to satisfy t~e board that the the
grievors' core duties and responsibilities are not reflected
in their current classification, but are included in the
higher class standard. This Board can either determine that
the grievors jobs "fit" a pre-existing classification or
remit the matter to the parties for the purpose of having
management establish a new class standard.
When we apply the Job Description and the evidence
of the grievance to the class standards, we find that the
grievors' jobs fit squarely within these criteria: t) they
are pilots; 2) they fly multi-engine fiXed wing aircraft; and
3) they are licensed to fly and do fly under both visual and
instrument flight rating.
The first issue is to determine whether the
modified DHC-6 that the grievors fly is a "small" or "large"
aircraft, as defined by the class standards.
Small and large are defined in the criteria, On
the plain reading of the criteria, without any mathematical
knowledge, one would read the criteria as defining a small
aircraft as one that has a gross take-off weight of up to
6,690 kg. or an equivalent 15,000 lbs. if imperial
Page 9
measurements were used. However, when 6,690 kg. is converted
to imperial measurement, it is equivalent to 14,700 lbs.
Therefore the definitions of 'small' and 'large' are only
consistent, using either imperial measurement or metric
measurement. It would make no sense to interpret the
standards as defining an aircraft differently depending upon
which system of measurement was used. This inconsistency
creates a patent ambiguity that must be interpreted in order
to apply the standards.
Usually extrinsic evidence is used to interpret
consensual documents, such as collective agreements.
Although the class standards are an.employer document, the
standards were submitted to the union for review, and were
amended as a result of discussions between the parties.
Although we do not have a consensual document in the sense of
a collective agreement, we have a document that has been
discussed and altered to reflect discussions between the
parties. We accepted extrinsic evidence to determine what
was intended to be the governing criteria.
Although the imperial weight is in parentheses, we
do not find that either party intended the metric weight to
be relied upon. The evidence was that the parties and the
industry always used imperial weight and did not use metric
weight. When the employer presented drafts of the class
standards to the union, the employer used 15,000 lbs. as the
determining take-off weight for large and small planes. The
aircrafts' gages are in imperial measure. The certificate of
airworthiness which is issued by the Department of Transport
set a maximum weight for this DHC-6 of 15,000 pounds when it
is used for water bombing. It made' no reference to metric
measure. Even the grievors, when they made their own
comparisons between the specifications of the DHC-6 and the
CL-215, referred only to pounds and made no reference to
metric weight.
Page 10
Neither party knew how the metric figure of 6,690
km. was added, but the union did recognize in its argument
that there was an error in conversion. This is the most
likely reason for the difference. The union had no evidence
of any discussions where weight was discussed using metric
measurement, or of any discussions where the metric
measurement was relied upon.
We have no jurisdiction to amend the class
standards, but our role is to interpret those standards,
using a meaning which the standards can reasonably bear.
Although the imperial weight of 15,000 lbs. was in
parentheses, it was clearly the intention that 15,000 lbs. be
the determining maximum take-off weight. To interpret the
standards to rely on metric measurement as the governing
weight, contrary to industry practice, would be an
interpretation that the standards could not reasonably bear.
In light of industry's practice, we interpret '.small'
aircraft, to mean aircraft that has a gross take-off weight
of 15,-000 lbs. or less. As the maximum take-off weight of
the modified DHC-6 is 15,000 lbs., the DHC-6 is a 'small'
aircraft, as defined by the class standards.
There was some evidence as to whether weight was a
gross weight, as contemplated by the certificate of
airworthiness or whether it was'a 'take-off' weight. In this
circumstance, it makes no difference. As Mr. Quinn
testified, although the pilots register the take-off weight
without the water, the maximum weight for this modified DHC-6
is 15,000 lbs. Therefore the grievors pilot "small" aircraft
as defined by the class standards, and they do not meet the
criteria of the Pilot 5, who pilots "large" aircraft.
We cannot find that a co-pilot of a CL215 is
equivalent to a pilot of a CL-215. The standards have
Pa§¢ 1 !
distinguished between the ranks of co-pilot and pilot.
Although there may be times that a co-pilot performs the same
functions as the pilot, the rank of a co-pilot is below that
of a pilot. A co-pilot may assist or act as relief for a
pilot while there is a pilot on board; however, when the co-
pilot acts as a pilot, his rank does not change. When the
grie~-ozs fly the CL-215, they are always co-pilots. ~e
cannot ignore the distinction created in the class standards
and interpret co-pilot as synonymous with pilot.
The union argued that the differences between the
Pilot 5, who flies a CL-215 and Pilot 4 are distinctions
without a difference as the grievors'had the sa~e skills as
the Pilots of the CL-215. However, in these class standards,
the distinction between the various levels.is not based on
skill, but on the size of aircraft. In the Preamble to the
standards, the standards recognize that'pilots may fly under
varying conditions. They may fly to large urban centres such
as Pearson International or to gra-vel runways. However,
whether the DHC-6 lands on water, gravel or paved tarmac, is
not a criteria that determines the level of pilot.
Similarly, the degree in difficulty in flying various types
of aircraft is not a criteria for determining the
compensation rate.
The grievors each have an ATR licence, that enables
them to fly a "large" aircraft. However, having the
credentials to fly at the next level does not place the
employee at the next level. It does, as the grievors
acknowledged, provide them with the qualifications to compete
for positions at the next level. We must look at the
classification from the position of the requirements of the
job and not from the view of the skills and qualifications of
the individuals holding the job. Therefore the question that
must be answered is not,whether ~he individuals have an ATR
Pate 12 ~ ~ '
licence, but whether the duties of the job require the
grievors to have an ATR licence.
With the exception of the Pilot 5, who must have
the ATR rating, all pilots flying planes over 12,500 lbs. to
43,000 lbs. must have a valid Commercial Pilot's licence.
This .is consistent with DOT regulations. The ATR is the
highest licence attainable at the present time and enables a
pilot to fly a plane larger than 43,000 lbs. The requirement
of an ATR rating is consistent with a Pilot 5 standard, as
there is no outside limitation placed on the weight of a
large aircraft in the class standards. We must keep in mind
that the class standards are made in a generalized form in
order to cover many varying situations, without requiring
amendment.
In this case the grievers do not need to have an
ATR rating to fly either the DHC-6 or the CL-215. Therefore,
the grievers job fits squarely within the Pilot 4 level.
They cannot fit within a Pilot 5 level as they do not fly a
large plane.
Does that mean that the differences between the
grievers' duties and responsibilities and those of the Pilot
5, are inconsequential, and they were essentially performing
the same Job. There were differences' between the DHC-6 and
the CL-215. We were told by the grievers that there the
modified DHC-6 had less maneuverability, could not make as
steep turns as the CL-215. As the DHC-6 could be used in the
winter the grievers had more difficult weather conditions to
cope with than with they did when flying the CL-215. The' CL-
215 could only be used in the summer and was not capable of
flying in snow and ice conditions.. With each type of
aircraft the~pilots had to use the utmost of care. However,
Mr. Quinn stated, that it is not that the DHC-6 is more
difficult to fly, but that they are like "apples and
Page 13
oranges." Therefore. this case is not like OPSEU(Sturch)
(supra) case where the grievors were doing the same job as a
Court Reporter 1 and a Court Reporter 2, and were using the
same skills. In that case, it was a matter that the job's.
tools changed long after the class standards' were made. In
this case, the standards are modern and are not outdated and
the two types of aircraft are very different.
As the class standards do not use differences in
skills, and terrain as factors that determine the various
levels, there is no basis for awarding a Berry order, as the
components of the grievors work fits squarely within the
level 4, and the core features of their job do not fall
outside the Pilot 4 description.
Therefore, this grievance is dismissed.
Dated at Toronto, this3Istday of August ' , 1992.
B. A. Kirkwood, Vice-Chairperson
H. O'Regan, Unior!l Me~er
D. Clark, Employer Nominee