IN THE MATTER OF AN ARBITRATION

 

 

B E T W E E N:

 

 

                NAV CANADA

 

                (The Employer)

 

 

             - and -

 

 

   CANADIAN AIR TRAFFIC CONTROL ASSOCIATION

 

                (The Association)

 

 

AND IN THE MATTER OF A POLICY GRIEVANCE RE SICK LEAVE AND MOS

 

 

ARBITRATOR: Kenneth P. Swan

 

 

APPEARANCES:

 

 

For the Employer:                                 Jacques Emond, Counsel

Marie Josée-Guérer, Director, Pension, Benefits and

Employee Health Program

Joseph Farrell, General Manager, IFR Operations

Tor Veltheim, Senior Director, Human Resources and

Labour Relations

 

 

For the Association:                              Dougald Brown, Counsel

Richard Nye, Vice-President, Labour Relations

Greg Myles, Western Regional Director

 

 

 

 

 

 

A W A R D

The hearing in this matter was held in Ottawa on February 8 and 9 and March 9, 2001, at which time the parties agreed that the arbitrator had been properly appointed pursuant to the collective agreement and that I had jurisdiction to hear and  determine the matter at issue between them.

While that matter initially arose from a policy grievance No. 00-009, discussions between the parties were successful in reducing the issues to four.  Those issues are as follows:

 

1.         When a controller is unable to provide or supervise air traffic control services pursuant to Section 404.06(1)(a) of the Canadian Aviation Regulations and is in receipt of sick pay with leave under Article 24.02 of the Collective Agreement, is the Employer entitled to assign other duties to the controller subject to confirmation that the controller is fit to perform such other duties?

2.         In circumstances where a controller is on sick leave but the controller=s license is not affected (ie. suspended, cancelled or not renewed) is the controller entitled to use all of his/her earned sick leave credits before being placed on Maintenance of Salary?

3.         Is Nav Canada entitled to require a controller to perform other duties Aoutside@ the air traffic control bargaining unit as a condition of receiving Maintenance of Salary under LOU 6-99?

4.         Are controllers entitled to exhaust all forms of earned sick leave credits, including lieu leave and vacation leave,  before being placed on Maintenance of Salary under LOU 6-99?

 

While there was some question between the parties as to whether the first of these issues was correctly worded by the Union, that dispute will be resolved along with the substance of the issues as identified.   I therefore proceed on the basis of these questions to deal with the matter as it appears before me for resolution.

As will appear, the issues between the parties relate to the sick leave and other income maintenance provisions of the collective agreement for air traffic controllers who are ill, injured or disabled.  Medical issues involving Air Traffic Controllers must be understood against a statutory backdrop which is complex in its nature and application.  The parties were agreed that this statutory structure was adequately described in the award of the present arbitrator in Re Nav Canada and Canadian Air Traffic Control Association (Medical Examinations) (1998), 74 L.A.C. (4th) 163 (Swan):

The positions of the parties may only be understood in the unique historical and legal context applicable to this dispute.  On November 1, 1996, NAV CANADA took over ownership and operation of the national air navigation system.  NAV CANADA is a corporation without share capital established to acquire, own, manage, operate, maintain and develop the Canadian Civil Air Navigation System, on a not-for-profit basis.  By agreement dated April 1, 1996, NAV CANADA acquired all of the assets of the air navigation system from Transport Canada, and effective November 1, 1996, some 6,400 employees were transferred from the federal public service, including some 2,300 air traffic control employees repre­sented by the Association.

Those employees, previously covered by the Public Service Staff Relations Act, are now in a bargaining unit subject to the Canada Labour Code.  While this change has many implications, one of them is a broader scope for the filing of policy grievances by the Association to challenge decisions of the Employer which, when the Employer was Transport Canada, could only be enforced by an individual employee.  While there are a number of different classifications covered by the collective agreement, the vast majority are licensed Air Traffic Controllers (ATC), and the issues raised by this grievance apply most directly to licensed ATCs.

Both before and after the takeover by NAV CANADA, ATCs were recruited through a screening and interview process, followed by a training program of six or more months at the Employer=s training facility in Cornwall, Ontario.  This was followed by site-specific on-the-job training, and possibly more theoretical training, after which a check out process of another several months takes place on a one-to-one basis with a licensed ATC.  The evidence indicates that this training is very rigorous, and that there are very significant drop-out rates throughout the process.

  In addition, there are stringent medical requirements established under the Aeronautics Act, R.S.C. 1985, c. A-2, as amended, and under the Canadian Aviation Regulations (CARs).  Part IV, subpart 4 of CARs details these medical requirements.  Briefly, these regulations establish that in addition to the technical requirements for licensing as an ATC, an employee must also hold a valid medical certificate, without which any exercise or attempt to exercise the privileges of the license is forbidden.

ATCs are required to hold a medical certificate in medical category 2, which is defined under paragraph 424.17(3) of CARs.  An initial certification, and any renewal thereof, is valid pursuant to paragraph 424.04(3) of CARs for a maximum period of 24 months for ATCs under the age of 40, and for 12 months thereafter.  The requirements are set out in painstaking detail, but the general requirement is summarized in the following provisions of the definition of medical category 2:

 

2.1 The applicant shall be free from

 

  1. any abnormality, congenital or acquired;

or                                  

  1. any active, latent, acute or chronic disability;

or

  1. any wound, injury or sequelae from operation

 

such as would entail a degree of functional incapacity which accredited medical conclusion indicates would interfere with reliable performance of duties within the period of validity of the license.

 

2.2 The applicant shall not suffer from any disease or disability which may render the applicant liable to a sudden or insidious degradation of performance within the period of validity of the license.

 

 

Medical certificates are issued only after an examination by a Civil Aviation Medical Examiner (CAME).  CAMEs are individually appointed based on familiarity with aviation medicine and the medical requirements of the various licenses involved in civil aviation.  They may be private practitioners or public servants.  Paragraph 424.04(2) includes the following requirements:

 

  1. Every applicant for a medical certificate or revalidation thereof shall undergo a medical examination by a CAME.

  2. Every applicant shall, at the time of the medical examination,

  1. sign a declaration provided by the CAME stating whether the applicant has previously undergone a medical examination in connection with an application for a medical certificate or revalidation thereof and, where applicable, provide a state­ment that sets out the results of the most recent such examination;

  2. answer all of the CAME=s questions that are pertinent to the assess­ment of the applicant=s medical fitness;

  3. give written authorization for the disclosure of medical information to a physician named by the applicant; and

  4. undergo any other examinations or tests that are required by the CAME in order to assess the applicant=s medical fitness.

 

Following the medical examination, the CAME may certify the employee as fit, unfit or deferred.  If the employee is fit, the expiring medical certificate is extended for a period of 90 days to permit the procedure for recertification  to continue.  That procedure requires that all documentation from the medical examination be forwarded with the recommendation to the Regional Aviation Medical Officer (RAMO), an official of Health Canada.  The package may then be referred to the Chief, Clinical Assessment for presentation to the Aviation Medical Review Board.  At each level, the assessment may be reconsidered, and a conclusion reached at a lower level may be overruled.  Persons who are found to be unfit to exercise their licenses, or whose certificates are not renewed, may appeal to the Civil Aviation Tribunal. 

The regulatory structure also provides for individual responsibility for fitness of each licensed employee, in paragraph 404.06 of CARs as follows:

 

 

  1. Subject to subsection (3), no holder of a permit, licence or rating shall exercisethe privileges of the permit, licence or rating if
  1. one of the following circumstances exists and could impair the holder=s ability to exercise those privileges safely;
  1. the holder suffers from an illness, injury or disability,
  2. the holder is taking a drug, or
  3. the holder is receiving medical treatment; 
  1. the holder has been involved in an aircraft accident that is wholly or partially the result of any of the circumstances referred to in paragraph (a);
  2. the holder has entered the thirtieth week of pregnancy, unless the medical certificate is issued in connection with an air traffic controller licence, in which case the holder may exercise the privileges of the permit, licence or rating until the onset of labour; or
  3. the holder has given birth in the preceding six weeks.
  1. No holder of a permit, licence or rating who is referred to in para­graph (1)(b), (c) or (d) shall exercise the privileges of the permit, licence or rating unless
  1. the holder has undergone a medical examination referred to in section 404.18; and 
  2. the medical examiner has indicated on the holder=s medical certifi­cate that the holder is medically fit to exercise the privileges of the permit, licence or rating.
  1. The Minister may, in writing, authorize the holder of a medical certificate to exercise, under the circumstances described in para­graph (1)(a) or (d), the privileges of the permit, licence or rating to which the medical certificate relates if such authorization is in the public interest and is not likely to affect aviation safety.

The Aeronautics Act also provides for obligations placed on medical professionals in relation to licence holders, in section 6.5:

 

6.5       (1)     Where a physician or an optometrist believes on reasonable grounds that a patient is a flight crew member, an air traffic controller or other holder of a Canadian aviation document that imposes standards of medical or optometric fitness, the physician or optometrist shall, if in his opinion the patient has a medical or optometric condition that is likely to constitute a hazard to aviation safety, inform a medical adviser designated by the Minister forthwith of that opinion and the reasons therefor.

 

(2)      The holder of a Canadian aviation document that imposes standards of medical or optometric fitness shall, prior to any medical or optometric examination of his person by a physician or optometrist, advise the physician or optometrist that he is the holder of such a document.

 

(3)       The Minister may make such use of any information provided pursuant to subsection (1) as the Minister considers necessary in the interests of aviation safety.

 

(4)     No legal, disciplinary or other proceedings lie against a physician or optometrist for anything done by him in good faith in compli­ance with this section.

 

(5)     Notwithstanding subsection (3), information provided pursuant to subsection (1) is privileged and no person shall be required to disclose it or give evidence relating to it in any legal, disciplinary or other proceedings and the information so provided shall not be used in any such proceedings.

 

(6)       The holder of a Canadian aviation document that imposes standards of medical or optometric fitness shall be deemed, for the purposes of this section, to have consented to the giving of information to a medical adviser designated by the Minister under subsection (1) in the circumstances referred to in that subsection.

 

 

The effect of all of these provisions is that, if an ATC is found to be unfit in the medical certification process, or self-reports a condition of unfitness, or is reported as unfit by a physician or optometrist under section 6.5 of the Aeronautics Act, the ATC is prohibited from working in that capacity.  The collective agreement recognizes, in various provisions, the significant impact these stringent requirements can have on individual employees.  For example, Letter of Understanding 3-91 provides for maintenance of salary for a period of one year for ATCs with five years or more of active ATC employment.  The collective agreement also includes sick leave provisions and a long-term disability plan.  The NAV CANADA pension plan continues provisions previously found in the Public Service Superannuation Act for special early retirement on medical grounds.  There are also policies in force for retraining and reassignment. 

 

 

 

In addition to this statutory backdrop, the following provisions of the collective agreement are relevant:

 

Article 24 - Sick Leave

 

24.01   (a) An employee shall earn sick leave credits at the rate of nine decimal three seven five (9.375) hours for each calendar month for which that employee receives pay for at least ten (10) days.  All operating employees in the bargaining unit will in addition be credited 0.9375 hours for each calendar month for which the employee receives pay for at least ten days.

 

(b) Effective September 1, 1999 an employee shall earn sick leave credits at the rate of ten decimal five nine (10.59)  hours for each calendar month for which that employee receives pay for at least ten (10) days.

 

24.02   An employee is eligible for sick leave with pay when the employee is unable to perform his or her duties because of illness or injury provided that:

 

(a) the employee has the necessary sick leave credits,

 

(b) the employee satisfies NAV CANADA of this condition in such manner and at such time as may be determined by NAV CANADA.

 

24.03   Unless otherwise informed by NAV CANADA before or during the period of illness or injury that a certificate from a qualified medical practitioner, licensed chiropractor, dentist, dental surgeon or orthodontist will be required, a statement signed by the employee stating that because of this illness or injury the employee was unable to perform his or her duties shall, when delivered to NAV CANADA, be considered as meeting the requirements of clause 24.02 (b):

 

(a) if the period of leave requested does not exceed five (5) days,

                   and

 

(b) if in the current fiscal year, the employee has not been granted more than ten (10) days= sick leave wholly on the basis of statements signed by the employee.

 

24.04   An employee is not eligible for sick leave with pay during any period in which the employee is on leave of absence without pay or under suspension.

 

24.05   (a) Where an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of 24.02, sick leave with pay may, at the discretion of NAV CANADA, be granted for a period of up to one hundred twenty three decimal seven five (123.75) hours subject to the deductions of such advanced leave from any sick leave credits subsequently earned.

 

(b) Effective September 1, 1999 for those employees who make a request under 24.05(a) where the employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of 24.02, sick leave with pay may, at the discretion of NAV CANADA, be granted for a period of up to one hundred and twenty-seven decimal zero five (127.05) hours subject to the deduction of such advanced leave from any sick leave credits subsequently earned.

 

24.06   The amount of sick leave with pay already credited to an employee by NAV CANADA at the time this agreement is signed shall be retained by the employee.

 

24.07   NAV CANADA agrees that in the event of an employer initiated release for incapacity by reason of ill health, an employee may exhaust any remaining accumulated sick leave credits prior to his or her release .

 

                   . . .

 

 

  

LETTER OF UNDERSTANDING (6-99)

 

Mr. Fazal Bhimji

Chief Negotiator

Canadian Air Traffic Control Association

162 Cleopatra Drive

Nepean, Ontario

K2G 5X2

 

Dear Mr. Bhimji:

 

This is to confirm an understanding reached during the current negotiations in respect of removal from active control duties for medical reasons.