More Air Canada flights have been cancelled, some due to a fire at Pearson Airport that I presume even Minister Raitt won’t blame on the workers. Others were cancelled due to fog near Montreal. And there are rumours that some pilots have called in claiming they are unfit to fly due to fatigue.
The fatigue issue is very interesting from a labour law scenario. I was out with Allan Bogg, labour law professor from Oxford last evening, and we agreed that one of our favourite labour law cases to teach is a 1972 British Court of Appeals decision called ASLEF #2. I have summarized this case before on this blog. Briefly, the case involved transit workers who decided to obey the terms of their employment contracts to the letter. When they did this, the transit came to a screeching halt. Showing the great creativity of common law judges, the Court ruled that complying with your employment contract can actually be a breach of your employment contract (!), if you interpret your contract rules in a way that is designed to harm the employer’s economic interests. This was the beginning of the ban on “works to rule”.
In Canada, the ban on ‘work to rules’ created by Lord Denning and his friends on the British Court of Appeals has been incorporated into labour relations acts. I noted yesterday, the language in the Canada Labour Code that applies to airlines. Here it is again:
“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;
Can you see how the reasoning in ASLEF #2 appears in this language?
However, in the case of pilots, there is a competing legal framework. The Canadian Aviation Regulations state quite clearly that no one will act as a flight crew (including pilots) if they are fatigued or “likely to suffer from fatigue”. Check out section 602.03:
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.
Not only is it good practice not to fly an airplane while fatigued, it is a legal obligation. How do you think you can prove or disprove whether a pilot is lying about being fatigued? And if there is any question about it, shouldn’t an airline and the pilot be erring on the side of caution? Or should an airline employer discipline a pilot or force them to fly if they do not believe the pilot is being honest about a fatigue claim?
Read the “strike” definition (above), and the “Fitness to Fly” section of the Aviation Regulations. How do you think the two sections can be reconciled if a rash of Air Canada pilots claim fatigue over the coming the days?