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T-3727-77
Fred Ager (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, June 12 and 23, 1978.
Public Service — Maximum rate of pay — Overtime — Plaintiff reassigned to position with same annual rate of pay but with less opportunity for overtime, at a lower rate — Transfer not meeting procedural requirements of s. 31(1) of Public Service Employment Act, if subject to that section — Whether or not transfer resulting in employee receiving lower maximum rate of pay bringing s. 31(1) into operation — Public Service Employment Act, R.S.C. 1970, c. P-32, s. 31(1).
Plaintiff, an air traffic controller who had been appointed to a position with a greater opportunity for overtime at higher rates was reassigned to a position with less opportunity for overtime at lower rates. The issue is whether the maximum rate of pay in the former position is greater than the maximum rate of pay in the latter position so as to make this transfer subject to section 31(1) of the Public Service Employment Act. Plain tiff contends that the transfer is a nullity because it does not meet the procedural requirements of section 31(1).
Held, the action is dismissed. The test for determining whether the position to which the plaintiff was transferred was one "at a lower maximum rate of pay" than the position he formerly held within the meaning of those words as used in section 31(1)(a) of the Public Service Employment Act must be the annual rate of pay in Schedule I of the Air Traffic Control Services Continuation Act. That schedule provides for an annual rate of pay for the classification which makes no distinction between the two positions and accordingly the rates of pay are the same. Overtime is supplementary to the estab lished rate of pay. The employee's only contractual right con cerning overtime is to receive compensation for it if and when assigned to work overtime by the employer.
ACTION. COUNSEL:
J. P. Nelligan, Q.C. and C. MacLean for
plaintiff.
David T. Sgayias for defendant.
SOLICITORS:
Nelligan/Power, Ottawa, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following are the reasons for judgment rendered in English by
CATTANACH J.: The plaintiff, by his statement of claim, seeks:
(1) a declaration that he is entitled to be reinstated to position TACQ3263 AI-6, Performance Development Officer, as of August 26, 1977 with full salary and benefits of that position, and
(2) a declaration that he is entitled to be paid at his overtime rate for all hours worked in excess of 34 hours per week while he performs the duties of position TACQ3388 AI-6, Equipment Specialist.
At the outset of the trial counsel announced that, because of an amendment to the statement of defence filed on Friday, June 9, 1978 on consent of the plaintiff dated June 8, 1978, there was no dispute between them as to the facts as pleaded but because the trial began on Monday, June 12, 1978 there had not been time to prepare an agreed statement of facts as alleged in the pleadings.
At my request counsel undertook to produce and did produce an agreed statement of facts which reads:
STATEMENT OF AGREED FACTS
The parties hereto agree that the within action shall be tried on the basis of the following facts.
1. The Plaintiff is an Air Traffic Controller residing in the town of Bainsville, in the Province of Ontario.
2. At all material times he was an employee of Her Majesty in Right of Canada as represented by Treasury Board.
3. On July 31st, 1975, he was appointed to position TACQ 3263 AI-6 in the Ministry of Transport by competition from within the Public Service.
4. In that position he performed the duties of Performance Development Officer at the Montreal Area Control Centre.
5. As an Air Traffic Controller within the Quebec region of the Air Traffic Control Services Branch of the Ministry of Trans port, he came under the direction and control of Mr. J. C. M. Pitre, a servant of Her Majesty in Right of Canada, who was at all material times the Regional Manager Air Traffic Services for that region.
6. By letter dated August 26th, 1977, the said Mr. Pitre advised the Plaintiff that, effective immediately, he was re assigned to the Regional Air Traffic Services Office and was transferred to position TACQ 3388 AI-6, Equipment Special ist, on the grounds that his competency as a Performance Development Officer had been too seriously impaired to be allowed to continue functioning in that capacity. A copy of that letter is attached hereto as Exhibit "1".
7. The Plaintiff did not wish to accept this transfer and did so under protest.
8. The Plaintiff's terms and conditions of employment are required by a collective agreement between the Canadian Air
Traffic Control Association and the Treasury Board signed July 29th, 1976, Code 402/76, as extended and amended by the Air Traffic Control Services Continuation Act, S.C. 1976-77, c. 57. A copy of that collective agreement, as extended and amended by that Act, is attached hereto as Exhibit "2".
9. Pursuant to definition 1(e) of that agreement, the Plaintiff was an operating employee for the purposes of the agreement when he filled position TACQ 3263 AI-6, Performance De velopment Officer.
10. Pursuant to definition 1, when he was transferred to posi tion TACQ 3388 AI-6, Equipment Specialist, he became a non-operating employee.
11. The work week for non-operating employees pursuant to article 13.01 of the collective agreement is 37 1 / 2 hours exclusive of lunch periods.
12. The work week for operating employees pursuant to article 13.02 of the collective agreement is 34 hours inclusive of meal and relief breaks where operational requirement permit.
13. The Plaintiff's opportunity for earning overtime as an operating employee in Montreal far exceeds his opportunity as a non-operating employee.
14. As an operating employee the Plaintiff received more for each hour of overtime worked than he could receive as a non-operating employee because his straight time hourly rate was higher as an operating employee.
15. As an operating employee, the Plaintiff was entitled to receive shift premiums pursuant to article 27.01. As a non- operating employee who is not an instructor, he is not entitled to these benefits.
16. The Plaintiff was transferred to position TACQ 3388 AI-6 because, in his employer's view, he was incompetent in per forming the duties of position TACQ 3263 AI-6.
17. At all material times, the Plaintiff was classified at group and level AI-6.
18. At all material times, positions TACQ 3263 AI-6 and TACQ 3388 AI-6 were classified at group and level AI-6.
Dated at Ottawa, this 12th day of June, 1978.
I have not reproduced Exhibit "1" referred to in paragraph 6 of the statement of agreed facts because the context of paragraph 6 accurately
gives the purport of that letter.
Neither have I reproduced the copy of the col lective agreement mentioned in paragraph 8 and attached as Exhibit "2" but I shall refer to the pertinent articles as circumstances dictate.
Paragraph 16 of the statement of agreed facts accurately reflects the amendment to the state ment of defence filed on June 9, 1978 which was to
the effect that the plaintiff had been transferred, on August 26, 1966, to position TACQ 3388 AI-6, Equipment Specialist, predicated on the ground that the plaintiff was incompetent in performing the duties of position TACQ 3263, Performance Development Officer from which he was trans ferred.
It was contended by counsel for the plaintiff that the transfer of the plaintiff fell within the conditions contemplated in section 31(1) of the Public Service Employment Act, R.S.C. 1970, c. P-32, in that:
(1) in his employer's view, the plaintiff was incompetent in performing the duties he had occupied, which is admitted in paragraph 8 of the amended statement of defence filed on June 9, 1978, which paragraph had been formerly to the effect that the plaintiff was transferred because his employer considered that it was in the best interests of orderly and efficient opera tion to do so; and
(2) the plaintiff was transferred to a position at a lower rate of pay.
Section 31 is headed "Incompetence and Incapacity" and subsection (1) of section 31 reads:
31. (1) Where an employee, in the opinion of the deputy head, is incompetent in performing the duties of the position he occupies or is incapable of performing those duties and should
(a) be appointed to a position at a lower maximum rate of pay, or
(b) be released,
the deputy head may recommend to the Commission that the employee be so appointed or released, as the case may be.
Thus if the two conditions precedent to the operation of section 31(1) were present then the transfer of the plaintiff by Regional Manager, Air Traffic Services would be void ab initio.
The transfer would be void, because if these conditions were present, the deputy head, as defined in section 2 of the Public Service Employ ment Act, would then be obliged to recommend to the Public Service Commission that the plaintiff be appointed to a position at a lower maximum rate of pay and by virtue of subsection (2) of section 31 the deputy head is obliged to give notice of the recommendation to the employee. Subsec tion (3) provides for a right of appeal against the recommendation by the deputy head to the Com mission, to a board established by the Commission; the board shall conduct an inquiry at which the deputy head and employee or their representatives
shall be given the opportunity of being heard; the board shall notify the Commission of its decision and then the Commission shall either not act on the deputy head's recommendation or act upon it and appoint the employee to a position at a lower maximum rate of pay accordingly as the decision of the board requires.
Admittedly the provisions of section 31 were not invoked. If the section required the procedure to be invoked, that is: (1) the plaintiff was transferred because he was considered by his employer to be incompetent in the position he occupied which is admitted to be applicable, and (2) the plaintiff was transferred to a position at a lower rate of pay then the transfer would be a nullity because the requi site procedure to so transfer the plaintiff was not followed.
Counsel for the plaintiff contends that the plain tiff was transferred to a position at a lower max imum rate of pay.
In contradiction of this contention on behalf of the plaintiff counsel for Her Majesty contends that the plaintiff was not transferred to a position at a lower maximum rate of pay but to a position at the same rate of pay.
Thus this action falls for determination upon the answer to the very narrow question, is the max imum rate of pay for position TACQ 3263 AI-6, Performance Development Officer, from which the plaintiff was transferred, higher than the max imum rate of pay of position TACQ 3388 AI-6, Equipment Specialist?
If the answer to that question is in the affirma tive then the plaintiff must succeed in his action and he is entitled to the declarations he seeks.
If the answer to that question is in the negative then the plaintiff cannot succeed in his action and he is not entitled to any of the relief sought by him in his statement of claim.
In seeking the answer to this crucial question I accept as an incontrovertible premise that every federal department of government is created by a statute which defines the function of the depart ment over which a Minister of the Crown shall preside and who "has the management and direc tion of the Department".
Section 3 of the Department of Transport Act, R.S.C. 1970, c. T-15, provides:
3. (1) There shall be a department of the Government of Canada called the Department of Transport over which the Minister of Transport appointed by commission under the Great Seal shall preside.
(2) The Minister has the management and direction of the Department and holds office during pleasure.
In the absence of any limitation thereon by statute, regulation or contract, the words "man- agement and direction" would confer all necessary authority for the efficient operation of the Depart ment under the Minister's control including the transfer of employees to positions within the Department in which their abilities would result in more efficient management.
I also accept as a corollary premise that there is no vested right in any particular position in the Public Service but that the tenure is in the Public Service rather than in a position within that service.
Such a limitation upon the employer's otherwise unfettered right to transfer an employee is found in section 31.
The legislative intent of section 31 is clear. When, in the opinion of the deputy head, an employee is incompetent in performing the duties of the position he holds and he should be appointed to a position at a lower maximum rate of pay, the deputy head cannot do so on his own initiative. He must justify his opinions to a board of inquiry established by the Commission and the employee may dispute the validity of the deputy head's opinion, particularly as to the employee's incompe tence. Obviously an employee cannot be demoted without the opportunity to be heard by an independent tribunal.
However there is no like impediment upon a deputy head from transferring an employee who, in his opinion, is incompetent in the position he occupies to a position at the same maximum rate of pay which in the vernacular of the service is a lateral transfer.
Therefore, as I have said previously, the narrow issue is whether the maximum rate of pay for position TACQ 3263 AI-6, is the same as or
higher than the maximum rate of pay in position TACQ 3388 AI-6 or whether it is lower.
By virtue of Article 14.02 of the collective agreement between the Canadian Air Traffic Con trol Association and Her Majesty the Queen as employer, effective June 1, 1976 an employee is entitled to be paid for services rendered the pay specified in Appendix "A" to the agreement for the classification of the position to which he is appointed.
By virtue of section 5(1) of the Air Traffic Control Services Continuation Act, S.C. 1976-77, c. 57, the term of the collective agreement was extended to the period January 1, 1977 to Decem- ber 31, 1977. The transfer of the plaintiff took place within that period.
By section 5(3) the rates of pay specified in Appendix "A" to the collective agreement were replaced by the rates of pay specified in Schedule I to the Act.
Schedule I to the Act specifies the annual max imum rate of pay for positions classified AI-6 to be $29,234.
Since the position from which the plaintiff was transferred and the position to which he was trans ferred are both so classified the annual maximum rate of pay remains the same.
However counsel for the plaintiff contended that the "annual maximum rate of pay" is not the true criterion to determine whether the "maximum rate of pay", the words used in section 31 of the Public Service Employment Act, is lower in the plaintiffs new position than in his former position.
Under the collective agreement there are operat ing employees and non-operating employees.
In position TACQ 3263 AI-6, Performance De velopment Officer, that the plaintiff had formerly occupied he was an operating employee.
In position TACQ 3388 AI-6, Equipment Spe cialist, to which he was transferred he was a non-operating employee.
Under Article 13.01 of the agreement the normal work week for a non-operating employee is 37 1 / 2 hours.
Under Article 13.02 the normal work week of an operating employee is 34 hours.
Accordingly a non-operating employee is required to work 3 1 / 2 hours longer than an operat ing employee.
This is the inspiration of the declaratory relief sought that the plaintiff is entitled to be paid at the overtime rate for all hours in excess of 34 that the plaintiff worked as a non-operating employee.
In the collective agreement "weekly rate of pay" is defined as the "annual rate of pay divided by 52.176."
Straight-time rate is defined therein as meaning, in the case of a non-operating employee his weekly rate divided by 37 1 / 2 and in the case of an operat ing employee it means his weekly rate of pay divided by 34.
Applying these formulae the hourly rate, which I take the straight-time rate to be, works out as $13.92 per hour maximum for a non-operating employee and as $15.36 per hour maximum for an operating employee. Clearly the maximum hourly rate of pay is higher for operating employees than for non-operating employees.
According to the collective agreement employees are entitled to receive the following remuneration:
(1) the annual rate of pay plus
(2) overtime pay for overtime worked, as pro vided in Article 15.02 at 1 1 / 2 times the straight- time hourly rate and 2 times that rate in certain circumstances therein outlined, plus
(3) a shift premium pursuant to Article 27.01 for operating employees of $1.25 for each shift on 1600 to 2400 hrs. and $1.75 for each shift on 0001 to 1800 hrs.
It is not disputed that, as an operating employee the plaintiff's opportunity of earning overtime pay was much higher than as a non-operating employee nor that overtime pay is higher for an operating employee than for a non-operating employee.
Neither is it disputed that the plaintiff, as an operating employee would have been entitled to shift premiums but that he was not entitled to those premiums as a non-operating employee.
Accordingly the plaintiff contends that the rate of pay is lower in the position to which he was transferred because the hourly rate of pay is lower than in his former position and that the maximum remuneration he can receive in his new position is lower because the opportunity for overtime work is less, the rate of overtime is less and he is not entitled to shift premiums.
This is true.
However by Article 14.02 of the collective agreement an employee is entitled to be paid for services rendered at the pay specified in Appendix "A" to the agreement for the classification of the position. By virtue of the Air Traffic Control Services Continuation Act Appendix "A" to the agreement is replaced by Schedule I to that statute.
By virtue of section 63(2) of the Public Service Terms and Conditions of Employment Regula tions, SOR/67-118, the rate of pay applicable to a position is the rate of pay established for the group and level within which the position is included, that is AI-6 in this instance.
It is not contemplated that there shall be varia tions within the same group and level.
As I appreciate the terms of the collective agree ment the entitlement to pay is that set out in Appendix "A" thereto and that is the annual rate of pay.
The pay to which an employee is entitled is the pay specified in Appendix "A" for the classifica tion of the position (see Article 14.01). That pay, so specified, is the annual rate of pay. The position
which the plaintiff held and to which he was transferred are both classified as AI-6 so there is no difference in the annual rate of pay.
In Appendix "A" there is no distinction made between operating and non-operating employees. Again the annual rate of pay remains the same.
The computation of the weekly rate of pay, as I see it, merely leads to the computation of the straight hourly rate of pay. The hourly rate of pay determines the overtime pay.
Because of the difference in the hours compris ing a week between operating or non-operating employees, a difference in overtime pay between these categories results.
But an employee is not entitled as of right to work overtime. The collective agreement requires that the employer keep overtime work to a mini mum and when overtime work is necessary the employer is obliged to assign overtime work equit ably among the employees.
Thus the employer determines when exigencies of the service require overtime work. That is a management decision. Likewise it is a manage ment decision to what employee or employees that overtime work will be assigned.
An employee can have no assurance that over time work will be available. It is quite possible that the employer might decide to engage a sufficient number of employees to assure that overtime work will never be necessary.
Accordingly overtime pay is supplementary to the established rate of pay as compensation for what might be subjectively considered as an advantage or disadvantage for the convenience or inconvenience resulting to the employee.
In my opinion it is reward for additional work. That additional work is uncertain and variable. In my view the maximum rate of pay in the context of the collective agreement contemplates a static
element not something that is uncertain and variable.
This is borne out by section 63(2) of the Public Service Terms and Conditions of Employment Regulations. This provision contemplates that there shall be a rate of pay applicable to a same group and level. It does not contemplate different rates of pay within the same group and level.
So too with shift premiums, which are appli cable only to operating employees under Article 27 of the collective agreement. It is a reward for being obligated to work at night.
Accordingly neither overtime nor shift work is an entitlement of the employee. The employee cannot demand overtime work or the undesirable shifts. That is a managerial decision. The employee has no contractual right to work over time. His only contractual right is to receive com pensation therefor if and when assigned to so work by the employer.
While the possibility of the plaintiff receiving more overall remuneration in his former position as an operating employee than in the non-operat ing position to which he was transferred, his enti tlement to pay provided for in Article 14.02 of the collective agreement is that specified in Appendix "A" as varied by Schedule I of the Air Traffic Control Services Continuation Act. That Schedule provides for an annual rate of pay for the classifi cation AI -6 which makes no distinction between operating and non-operating and accordingly the annual rates of pay are the same for the position the plaintiff first held and for the position to which he was transferred.
Accordingly the test for determining whether the position to which the plaintiff was transferred was one "at a lower maximum rate of pay" than the position he formerly held within the meaning of those quoted words as used in section 31(1)(a) of the Public Service Employment Act must be the annual rate of pay in Schedule I to the Air Traffic Control Services Continuation Act for the reasons I have expressed.
Since the annual rate of pay is the same for both positions it follows that the plaintiff was not "appointed to a position at a lower ... rate of pay" and that it was within the competence of Her Majesty as his employer to transfer the plaintiff as she did without resort to section 31 of the Public Service Employment Act.
Therefore the plaintiff is not entitled to the declaratory relief sought in his statement of claim and the action is dismissed with costs to Her Majesty.
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