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Rash of Sick Pilots Confronts Air Canada. Is this a “strike”?

Not that anyone cares, but us labour law types have been telling the media for months that the government’s constant interference in collective bargaining is counter-productive from an employee relations’ perspective.  Minister Raitt’s refusal to permit strikes and lockouts and instead channelling employee frustrations into a process the Minister has stacked in favour of employers is a recipe for a very unhappy and unhealthy workplace.  Years of industrial relations scholarship suggests that employee frustration does not go away just because a government prohibits workers from exercising rights to vent steam that most other people have.  Rather, those frustrations can take other forms that are not healthy for the business.  That might mean a less motivated workforce, more grievances, or higher absenteeism, for example.

News reports today indicate that some Air Canada pilots, whose right to engage in a work stoppage has been suspended by the government, have called in sick, causing the airline to cancel flights. Some of the pilots are claiming stress and fatigue.  If workers are banned from striking, can they call in sick?  If small percentage of workers call in sick, are they engaged in a ‘strike’?

Read how the Canada Labour Code defines a ‘strike’:

“strike” includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output;

What do you think?  Are the pilots who called in sick on “strike”?  We don’t know, right?  Why do I say that?  What does the answer depend upon?

Whether or not this is a strike, it is none of the Minister’s business.  What constitutes a strike is a question clearly dealt with by the Canada Labour Code, and not a particularly complex question at that.  The Code provides employers that believe their employees are engaged in an unlawful strike with a remedy.  In other words, this is standard labour law question that comes up fairly regularly.  Yet I wonder whether this Minister, this government, would be able to resist sticking its nose into the issue if pilots continued to experience symptoms.  I wonder, for example, whether the Minister might attempt to influence the Labour Board by making comments about whether she thinks it is a strike, or about what she thinks the labour board should decide, were the employer to bring an illegal strike application.

Do you think that it would be inappropriate for a Mininster to suggest to an administrative tribunal how it shoudl decide a legal dispute within it’s jurisdiction?

How would you respond if you were Air Canada? One option is to see this as a sign of great tension and conflict, no doubt aggravated by the government’s intervention, including its non-neutral arbitration process in the back to work legislation.  If you were the Director of Labour Relations for Air Canada, would you offer the union the opportunity to refer the issues to a fair and neutral private interest arbitration system, rather than the government’s distorted version, with an arbitrator agreed to by the parties and that does not include a list of mandatory criteria limiting the arbitrator’s discretion?  Do you think would be perceived as an olive branch to the workers?

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4 Responses to Rash of Sick Pilots Confronts Air Canada. Is this a “strike”?

  1. Ryan E Reply

    March 17, 2012 at 5:08 pm

    Too funny – in teaching strikes/lockouts at UofT’s MIRHR labour law course, we used this exact scenario of employee’s calling in sick en masse to protest a controversial management decision. The faux-arbitration panel held that the workers needed to produce Doctor’s notes to claim sick pay though…

  2. Tim F Reply

    March 17, 2012 at 8:29 pm

    Of course the gov’t and corp will have to be careful as the pilots are also governed by the Canadian Aviation Regulations. CAR 602.02 does speciffically state that pilots are not allowed to operate an aircraft while not 100%. And seriously, do you want a pilot who is not 100%?

  3. md845 Reply

    March 17, 2012 at 8:56 pm

    Hi Professor Doorey,

    I enjoy reading your commentary.

    As an airline Captain, I must bring your attention to the Canadian Aviation Regulations (CARs), specifically 602.02:

    “Fitness of Flight Crew Members

    602.02 No operator of an aircraft shall require any person to act as a flight crew member and no person shall act as a flight crew member, if either the person or the operator has any reason to believe, having regard to the circumstances of the particular flight to be undertaken, that the person

    (a) is suffering or is likely to suffer from fatigue; or

    (b) is otherwise unfit to perform properly the person’s duties as a flight crew member.”

    http://www.tc.gc.ca/eng/civilaviation/regserv/cars/part6-602-2436.htm#602_02

    This section is fundamental to what we do and it is “drilled into pilots heads” from the day one starts initial training to become a Private Pilot. Airline Pilots hold Airline Transport Pilot Licences (ATPL) which are a level above Commercial licenses.

    A review of CARs 404.06 Prohibition Regarding Exercise of Privileges would also be useful.

    http://www.tc.gc.ca/eng/civilaviation/regserv/cars/part4-404-1075.htm#404_06

    Thus, this is not simply an issue of pilots complying with the Canada Labour Code (CLC), but also an issue of complying with the CARs. It would appear that there is a fundamental conflict between the two.

    The public seems to focus on whether or not we comply with the CLC, but we have other OBLIGATIONS as pilots. Generally, passengers seem to only be concerned about the inconvenience factor in situations like these. But let me remind you, the CARs are reactive in nature (i.e. many CARs are rooted in the findings of accident investigations arising from fatal accidents).

    As an airline Captain, I can tell you that passengers should be applauding pilots for not showing up at work IF they are unfit to fly (i.e. stressed, physically ill or fatigued). What you also need to understand is that Air Canada threatened its pilots by stating that if they booked off that they may be subject to discipline. So now, there are pilots who are physically ill who may be so fearful for their jobs that they will report for duty despite being sick. AC pilots have a collective agreement with AC and their careers are being attacked collectively. So, why is it so hard to imagine that there is currently widespread stress throughout the pilot group?

    Please also understand that AC moved to LOCK OUT the pilots the same day that they were due to go back to the bargaining table – RIGHT BEFORE MARCH BREAK! Clearly, this was done because AC saw an opportunity to kill two birds with one after the IAM issued strike notice. This way, AC counted on the government to pass back-to-work legislation in one convenient shot.

    By the way, for those of you who are saying that the pilots should leave their jobs and fly elsewhere, that is already happening. You will likely see a pilot “brain drain”. Other international carriers are paying huge salaries as shortages loom. Do you want outsourced pilots?

    You must remember that if there was a smoking hole in the ground, people would be on here criticizing the pilots for being unsafe and the blame would ultimately be on those who controlled the aircraft. How quickly we all forget about the Buffalo, NY crash and the landing on the Hudson, etc.

    I look forward to your response Professor Doorey…

  4. Matt Reply

    March 18, 2012 at 2:52 am

    Hey there,

    Great article! It’s great to see you ‘labour law’ types engaging in this conversation. From a social standpoint, it reminds me how interconnected all of our respective roles’ in society really are.

    I am one of these non-striking Air Canada pilots. And while I haven’t called in sicks or fatigued for spiteful purposes, I have felt tremendously stressed about the predicament we find ourselves in.

    See, this isn’t widely being reported in the media, but AC is trying to outsource the pilot work force. At first glance, this may sound like free market capitalism, however consider this: SunWing, and CanJet both import charter pilots from Europe, who have difficulty finding work in the quiet winter months (our busy season). These companies qualify to do this on a technicality – they say there are no pilots in Canada who are current on the airplanes tbey fly. This is only because they do not wish to train anyone (which is what normally happens – WestJet pilots, for example, don’t need to be qualified on 737s in order to get hired there).

    So the result is that we end up with an artificially bloated work force, comprised of those who didn’t end up at Air Canada, and those who choose a more nomadic professional life. Neither of these groups can boast the safety record of Air Canada’s pilots, nor do they have the same stringent safety culture, or the same amount of experience.

    Sadly, we have no recourse to fight this without the ability to threaten strike action. After all, we absolutely do not want to strike. We do however need to use every tool available in order to convince this company that cutting corners on pilots will cost them in the long run, and worse, will devalue the service you receive as a passenger.

    I say we have no recourse, but that’s not totally true. Here’s what you may be interested in, as it’s relative to your article.

    This is the regulation which trumps the Labour Code on calling in sick. We are obliged, when our mind isn’t ‘in the game’, to remove ourselves from active duty. We do this at full penalty to ourselves in terms of pay.

    Canadian Air Regulations, 602.02 Fitness of Flight Crew Members:

    No operator of an aircraft shall require any person to act as a flight crew member and no person shall act as a flight crew member, if either the person or the operator has any reason to believe, having regard to the circumstances of the particular flight to be undertaken, that the person
    (a) is suffering or is likely to suffer from fatigue; or
    (b) is otherwise unfit to perform properly the person’s duties as a flight crew member.

    Cheers
    Matt

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