Submission

Table of Contents

1. Division I - Effective Limits on Hours of Work
2. Division I - Guaranteed Opportunity for Breaks and Meals
3. Division II - A Universal and Higher Federal Minimum Wage
4. Division V - Adequate and Equitable General Holidays
5. Division VII - Paid Preventive Pregnancy Leave
6. Division VII - Effective Reassignment When Pregnant
7. Division VII - Ability to Combine Annual Vacation With Maternity and Other Parental Leaves
8. Division VIII - Effective Bereavement Leave
9. Division XIII and XIII.1 - The Right to Sick Leave
10. Division XIV - No Termination of Employment for Being a U.S. "Security Risk"
11. Division XV.1 - Expansion of the Dimensions of Harassment to Include Psychological Harassment
12. New Division - Effective "Whistleblower" Protection

Introduction

• This submission has been prepared by the CUPE Research Branch on behalf of the Airline Division of CUPE.
• The Airline Division of CUPE represents about 7,500 cabin personnel (In-charge flight attendants and flight attendants) at Air Canada, Air Transat, CALM Air, Cathay Pacific (Vancouver base) and First Air. About 75 per cent of this workforce is female.
• These five unionized bargaining units work at some of the largest federal employers (Air Canada with about 6,500 flight attendants and a total workforce of about 35,000) and some of the smallest (only 20 flight attendants at CALM Air).
• The views expressed in this submission were endorsed by the delegates to the Airline Division Conference on October 2, 2005 in Winnipeg. The Conference is this Division's highest governing structure.
• This submission responds to the questions raised in the Commission's February 2005 Consultation Paper, particularly Section I, question 5; Section II, questions 1, 2 and 3; Section IV, question 2 and Section VI, questions 4 and 5.
• In order to facilitate the work of the Commission and its staff, each of our issues has been summarized briefly, referencing the appropriate Division and/or sections of Part III of Code , with recommendation(s) for change where appropriate. In this regard, this submission attempts to follow the basic format of the Commission's July 2005 “Technical Issues” paper.
• Accordingly, there will be no Executive Summary provided, only a Table of Contents.
• In addition to our specific comments on Part III of the Code as it applies to flight attendants, the Airline Division of CUPE endorses the principles and general conclusions of the Canadian Labour Congress (CLC) as contained in their March 2005 submission to the Review Commission as follows:
  • A strong floor of rights and employment standards will protect employers who treat their employees with respect and dignity (page 3).
  • Decent labour standards must be seen as a central part of a modern, highly productive economy based upon skilled and knowledgeable workers (pages 3-4).
  • There is no contradiction between promoting high labour standards and building a highly productive economy (page 4).
  • Employment standards must be seen as a key means to secure and promote human rights (page 4).
  • No worker should be worse off by being in the federal than in the provincial jurisdiction (page 6).
  • Federal Code provisions should be at least as protective as those in any province (page 6).
  • Legislative standards have always been and are increasingly important in terms of setting a floor under collective bargaining arrangements (page 7).
  • Provisions in the Code whereby collective agreements cannot undercut minimum Code requirements need to be made even more explicit (not less so through enhanced ability to contract out of the Code ) (page 8).
  • Issues relating to work-family conflict - above all promoting more flexibility for workers in terms of working time over the “working week” and the life-course - should be a major priority in this review of Part III (page 20).
  • Progressive and effective reform of federal labour standards assists an agenda of promoting a more productive economy with good jobs (page 49).
  • A context of non-compliance demonstrates that Part III of the Code as it stands now is ineffective in terms of promoting good practices within covered workplaces and protecting workers (page 31), as the Airline Division learned to its great expense enforcing pay for statutory holidays for First Air flight attendants.
• Finally, the Airline Division of CUPE will reserve its comments on the views raised by FETCO and other federal employers until the anticipated second round of consultations in early 2006.

1. Division I - Effective Limits on Hours of Work

• While some employers may complain bitterly that sections 169 to 177 of this Division are unduly restrictive or constitute a “cookie-cutter” approach to hours of work, the existence of averaging permits has meant, for all intents and purposes, that there are no legislated or regulated daily, weekly or monthly limitations on hours of work for flight attendants in Canada.
• The averaging permits are woefully dated, if they exist at all, at our five airline employers.
• The application of section 6(3) of the Regulations has made flight attendants into 12 month “continuous operations” employees, year in, year out.
• The only prohibition on the amount of work that can be done is the right to refuse overtime after an annualized 2,496 hours (52 x 48 hours) less vacation, statutory holidays, etc. But, at most of our carriers, this limitation is not tracked effectively if at all.
• In addition, these hours may be worked without regard to the normal requirement for weekly rest (section 173) under an averaging permit.
• Flight attendants were first recognized and regulated by Transport Canada in 1971 as safety professionals. So it is understandable that Code provisions first passed in 1965 did not recognize the work realities of flight attendants.
• But CUPE's search for regulated (as opposed to collective agreement) limits on flight attendant flight and duty times (or hours of service) has been long and frustrating and has been unsuccessful in closing this longstanding legislative loophole.
• Bill C-5 in 1992 amended the Aeronautics Act (not the Canada Labour Code) to give the Minister of Transport legislative authority for the first time to regulate flight attendant flight and duty times (“FA F&DT”). (Prior to this change, this Minister only had legislative authority to regulate pilot flight and duty times.)
• Three different Transport Canada Working Groups were created between 1992 and 1998 to develop these rules. They all produced nothing; in fact, the third Working Group never produced its final report.
• The airline employers, spearheaded by the Air Transport Association of Canada (ATAC), were aggressive at these meetings and sought a FA F&DT rule far less than that for pilots (already among the weakest in the world):
  1. Flight attendants are not as important as pilots when it comes to the safety of flight and can therefore have worse rules, i.e. we can be more tired with less serious consequences.
  2. There should be no limitations based on flight time, the key indicator of our exposure to work in an aircraft cabin.
  3. Limits should only be on the basis of duty time with as few as 4-6 days off in a month, e.g. 21 consecutive 13:59 hour duty days followed by only 3 days off.
  4. Annual duty limits of 3,200 - 3,600 duty hours, about 60 -70 duty hours per week.
  5. Augmentation rules for long range flying based on legal minimum crew with only one or two extra cabin personnel to go to 20 hours.
• After the failure of the third Working Group, Transport Canada drafted its own rule for FA F&DT and tabled it in February 2004.
• The proposed Transport Canada rule follows most of the worst aspects of the employer position:
  1. No limits on flight times, only on duty time, despite the Government of Canada's commitment that both elements would be regulated.
  2. Higher limits than pilots (e.g. flight attendants could do 5-6 consecutive Toronto-Vancouver turnarounds in a week; pilots under their rule could only do four at best).
  3. Excessive weekly, monthly and annual limitations.
  4. Bad long-range augmentation rules.
• A new wrinkle was added by Transport Canada as well.
• If no regulated FA F&DT rules could be agreed upon, no matter how bad they are, Transport Canada would mandate “fatigue risk management systems” (FRMS) which would, in effect allow employers to monitor and set such fatigue rules and limitations as they see fit based on the approach as it has been developed in Australia. In the alternative, both FA F&DT regulations and FRMS could exist together.
• Unfortunately, Transport Canada could not explain how a new FA F&DT regulation and FRMS would interact. Is the regulation to be so tough that FRMS would be the “alleviating” factor from it? (If so, why was the proposed FA F&DT regulation so loose?) Would the regulation be “sunsetted” as FRMS is implemented? Or is the regulation to be the “penalty box” for the “bad guys”, while the "good guys" operate under FRMS? And how would this all impact on collective agreements and the Code ?
• Recent amendments to the Aeronautics Act as contained in Bill C-62 now before Parliament appear to abandon any attempt at regulation by Transport Canada of FA F&DT altogether.
• Meanwhile, flight attendants continue to suffer as the new 21st century version of “nineteenth century coal miners of the sky” with collective agreements as their only line of defence (if they are unionized). In one recent instance, a flight attendant was hospitalized overseas for two weeks because of a pulmonary blood clot, linked to too much long-range flying!

Recommendations:

1. If Transport Canada abandons its attempt to have effective regulated FA F&DT limitations, Part III of the Code must be amended to create such reasonable and effective limitations for flight attendants under the Code and its related regulations.
2. Airline employers (other than Cathay Pacific) do not calculate flight attendant pay or work time on the basis of duty time. Nonetheless, a lower payment of overtime threshold (reduced from 40 x 52 = 2,080 hours) to 1,820 hours annually (or 35 x 52) would be a good step to ensure overtime payment for excessive work hours, particularly in a condensed time frame.

2. Division I - Guaranteed Opportunity for Breaks and Meals

• As befits the modern "nineteenth century coal miners of the sky", many flight attendants do not have the opportunity for breaks or time to eat during duty days of 12.5 hours or more.
• Their collective agreements and Part III of the Code are silent on the right to meal breaks.
• Where breaks or meals do happen, they may occur while the flight attendant is sitting next to a lavatory while in a flight attendant jumpseat.
• The lack of food is clearly a hazard, with instances of flight attendants fainting or becoming ill while operating flights as a result of the lack of proper nourishment.
• As noted by the CLC in its submission to the Review Commission, the provincial norm is for a half-hour break after five hours of work (page 42).
• This barbaric silence in the federal Code must be ended. Ending this silence is the only way to deal with airline employers who refuse to recognize these basic human needs, breaks and food, during long shifts of active work.

Recommendations:

3. There should be legislated opportunities for 15 minute rest breaks every four hours of work (which for flight attendants should be calculated from the start of a duty period).
4. There should be legislated opportunities for meals after four hours of work, with due consideration for the operation (e.g. a meal break will not be scheduled to occur when an aircraft is landing) (again, calculated from the start of a duty period).
5. Breaks and meals should be taken in appropriate surroundings.

3. Division II - A Universal and Higher Federal Minimum Wage

• Section 178 of the Code establishes the federal minimum wage as the general adult minimum wage rate established by each province and territory, as revised from time to time.
• As noted by the Commission, federal labour standards are designed to ensure that federal employees are given fair and equitable employment conditions.
• This is not the case with the federal minimum wage.
• CUPE flight attendants are based permanently in six provinces and one Territory. Flight attendants may be based periodically in another Territory or other provinces.
• Admittedly, the federal minimum wage applies minimally to flight attendants under their collective agreements, being limited to payment for training in certain circumstances, etc.
• But CUPE sees no rationale for flight attendants employed by the same federal employer doing the same work getting paid a range of $6.80 (Nova Scotia) to $8.00 (British Columbia) in the case of Air Canada or from $7.00 (Alberta) to $8.25 (NWT) in the case of First Air.
• In addition, as noted by the CLC, $10 per hour is the minimum “minimum wage” that is needed to even begin to escape from poverty, particularly in larger urban centres.

Recommendations:

6. The federal government should re-introduce a single adult minimum wage in its own jurisdiction.
7. The new single federal adult minimum wage should be set at $10 per hour. Provinces should be encouraged to match this new federal minimum wage.

4. Division V - Adequate and Equitable General Holidays

• As “continuous operations” employees under section 191 of the Code, flight attendants do not receive the same legislated entitlements as other federal sector workers do in terms of the amount of time off as a result of general holidays or in terms of pay when working on a general holiday.
• In the first instance, a regular federal sector worker working Monday to Friday (with Saturday and Sunday off) would get 14 days off work if they had 10 general holidays.
• A flight attendant, by way of comparison, would only get 10 days off as a “continuous operations” employee.
• Secondly, by virtue of sections 197 and 198, flight attendants working on, say, Christmas, perhaps half a world away from their families and loved ones, will only get overtime pay if they exceed 2,080 hours annually, if it is tracked at all.
• Finally, there should be additional general paid holidays to accommodate the needs of different cultural communities in a more diverse society.

Recommendations:

8. For employees in “continuous operations”, the legislated general holiday entitlement should be multiplied by a factor of 1.4 (14 over 10) to ensure parity with "regular" employees in terms of available time off.
9. For work on a statutory holiday, “continuous operations” employees should always receive the pay entitlement under section 198 (a).
10. A tenth paid general holiday should be added, preferably as a “floater” at the employee's option.

5. Division VII - Paid Preventive Pregnancy Leave

• Particular work environments may be hostile and even dangerous to a developing foetus.
• This is especially so for flight attendants who work in a pressurized cabin environment exposed to cosmic (or ionizing) radiation and other recirculated air contaminants, among other hazards.
• Pregnant flight attendants are then faced with a difficult choice: do I experience reduced income or do I expose my unborn child to this hostile workplace environment?
• Pregnant workers should no longer have to face this choice.
• The Quebec system currently provides a compensation plan for pregnant workers faced with risks for the health of a foetus. This compensation is equal to 90 per cent of the net income of the worker who has taken the preventive leave for the duration of the leave as stipulated by her physician.
• Air Transat flight attendants have bargained preventive leave provisions for up to 12 weeks at two-thirds pay, financed jointly by the airline and all flight attendants. There are efforts underway in this round of bargaining to expand this coverage in terms of duration and pay protection.
• But pregnant flight attendants and other federal sector workers should not have to bargain the health and safety of themselves and the unborn. That protection with full pay should be provided by Part III of the Code .

Recommendations:

11. Division VII be amended to ensure a preventive leave of absence for pregnant workers with their regular rate of pay from their employer.

    NOTE: Unlike the recent Bill C-380, this right should be enshrined in the federal Code itself and be made available to all federal sector workers regardless of province.

6. Division VII - Effective Reassignment When Pregnant

• Section 204 states that an employee who is pregnant or nursing may, during the period from the beginning of the pregnancy until the end of the twenty-fourth week following the birth, request that the employer modify her job functions or reassign her if continuing in her current job functions poses a risk to her health or that of the foetus or child.
• As noted previously, there are significant risks for flight attendants if they continue in their regular duties while pregnant, and therefore the majority request ground work in accordance with section 204 in the absence of effective preventive pregnancy leave provisions.
• The problem with section 205 deals with the employer's obligations. This provision states that the employer shall examine the request in consultation with the employee and, where reasonably practicable, shall modify the employee's job functions or reassign her.
• It is now settled law that an employer has a duty to accommodate an employee up to the point of undue hardship. Undue hardship is greater than “where reasonably practicable”. In Essex Police Services Board and Essex Police Assn. (Horoky), 105 LAC (4^th) 193, Arbitrator Goodfellow provides a useful definition of undue hardship at page 19 (QL) which states:

  "In proving undue hardship, the case law is clear that the onus is not a light one. Inconvenience is not hardship and some hardship must be tolerated. It is only where the hardship would be “undue” that accommodation will not be required. The Concise Oxford Dictionary, 7^th ed., defines “undue”, among other things, as “...excessive, disproportionate...”. Thus, as the case law also makes clear, it is necessary to evaluate the degree of hardship that would be incurred against the important values underlying the right to be free from discrimination."

Recommendation:

12. “Reasonably practicable” in sections 205 (1), (3) and (4) needs to be changed to more accurately reflect the employer's duty to accommodate an employee up to the point of undue hardship.

    NOTE: This test of undue hardship should also apply under section 208.

7. Division VII - Ability to Combine Annual Vacation With Maternity and Other Parental Leaves

• There have been instances where flight attendants have requested their earned and previously scheduled annual vacation to be added to their maternity leave so they can spend more time with their new born child.
• While this was allowed by the affected employers, they were originally reluctant to do so because there was no such clear requirement in the Code .
• As the CAW has pointed out in their submission to the Review Commission, an employee who is still on leave (parental, compassionate care, etc.) at a time when the Code would normally require the scheduling of any uncompleted vacation time, should be able to finish that uncompleted vacation at the end of the leave or at a later date. This provision ensures that all employees can access their earned vacation entitlements, and that the payment of vacation pay is not made at a time when it will reduce EI benefits.

Recommendation:

13. The Code should be amended to protect clearly the vacation entitlement of employees on leave.

8. Division VIII - Effective Bereavement Leave

• Section 210 (1) provides for three days bereavement leave in the event of the death of an immediate family member.
• CUPE flight attendants are a highly mobile group and work far from their families within Canada and even internationally.
• It is therefore necessary to ensure that the Code offers reasonable travel time in addition to the basic bereavement leave entitlement.

Recommendation:

14. Add additional paid bereavement leave of up to two days (depending on the location of the deceased family member) for necessary travel in the event of the death of an immediate family member.

9. Division XIII and XIII.1 - The Right to Sick Leave

• Sections 239 (1) and 239.1 (1) state that no employer "shall dismiss, suspend, layoff, demote or discipline" an employee because of absence due to illness or injury, or due to a work-related illness or injury, respectively.
• Airline employers (as well as other federal employers) have introduced sophisticated and not so sophisticated attendance management systems or programs to control and reduce the costs associated with sick leave and injuries. In their various forms, such attendance management programs bring in flight attendants for interviews, “counseling” and may lead to discipline if use of sick leave exceeds arbitrarily imposed employer determinations of “excessive” sick leave usage.
• Such corporate-wide programs are particularly punishing to flight attendants where a head cold may make it difficult or impossible to operate a flight without serious damage (e.g. burst ear drums). By contrast, a worker on the ground may still be able to come to work with a similar cold without the same health risks.
• Nonetheless, these discriminatory programs continue for flight attendants, despite the existence of the current legislated prohibitions.
• In addition, personal sick leave is being used by a predominantly female workforce to tend to the illnesses of other family members. This exposes these flight attendants to discipline or puts them at risk of running afoul of attendance management programs through no fault of their own.

Recommendations:

15. Clarify the interpretation and application of sections 239 (1) and 239.1 (1) to prohibit the application of arbitrary company-imposed attendance management systems and programs.
16. Amend Division XIII to provide an employee right to take up to ten paid days per year to deal with personal and family responsibilities, including disruptions to child care and elder care arrangements, dealing with household illness, domestic emergencies and medical appointments.

10. Division XIV - No Termination of Employment for Being a U.S. "Security Risk"

• The United States as part of their “war on terrorism” has created new laws and rules for their national security.
• Under one of these recent rules, the United States requires all Canadian airline operators to provide the U.S. government with passenger and crew lists on planes entering U.S. airspace, even for overflights. Air Canada and other Canadian airlines now provide a list of flight attendants operating on those flights to U.S. authorities in advance of these flights.
• Recently, an Air Canada flight attendant was identified by the U.S. government as being on its list of “persons of interest” (or “security risk”).
• Neither Air Canada nor the flight attendant in question were given an explanation for being refused permission to work on flights that fly in U.S. airspace. No reasons were provided for this ban. Nor was there a quick and transparent appeal process for this arbitrary U.S. determination as a “security risk”.
• Air Canada then terminated the employment of this flight attendant because he was no longer able to work on any flights that operated into (or over) U.S. airspace.
• A longer-term solution will involve the Canadian government lobbying the U.S. to end the application of such unjust rules and laws to Canadian citizens. Meanwhile, Canadian employees must be protected from being terminated solely because they have been identified by the United States as a "person of interest" (or "security risk").

Recommendation:

17. Add appropriate provisions to Division XIV that protects Canadian employees from being terminated solely because they have been identified by the United States as a “security risk”. There should be the option of equivalent alternative employment if the “security risk” determination cannot be overturned.

11. Division XV.1 - Expansion of the Dimensions of Harassment to Include Psychological Harassment

• This Division has already attracted considerable commentary. The recent Parliamentary debate on Bill C-360 is only one example, although it focused primarily on the federal public service.
• The province of Quebec has played a leading role in the fight against psychological harassment. New provisions were added to their Labour Standards Act effective June 1, 2004 requiring employers to take measures to prevent psychological harassment and provide a healthy workplace for their employees in this regard.
• To date, the Canadian Human Rights Commission has not been able to address on-the-job harassment on this basis.
• Employer harassment policies where they do exist often have internal investigation processes that are weak, lengthy and provide unfair justice for our members when it comes to workplace psychological harassment.

Recommendation:

18. Amend Division XV.1 to include workplace psychological harassment.

    NOTE: The amendments contained in clauses 25 through 29 of Bill C-360 merit consideration here, as well as the definition of “psychological harassment” contained in that legislation.

12. New Division - Effective "Whistleblower" Protection

• “Whistleblower” protection has also attracted repeated public attention, most recently with the passage of Bill C-11 as it applies to the federal public service and the Gomery Commission of Inquiry.
• Within the context of federal labour standards legislation covered by Part III of the Code, employers should be prohibited from punishing employees who report alleged illegal activity of their employer to a lawful authority or who testify in a lawful investigation or proceeding.
• This protection is needed for courageous employees who report on the illegal activities of their employers to the authorities.
• Such protection already exists for different classes of employees in New Brunswick, Saskatchewan, Nova Scotia (provincial government employees only) and Ontario (provincial government employees only; not proclaimed).

Recommendation:

19. Add a new Division (or amend existing Division XIV) to prohibit employers from punishing or taking reprisals against their employees for reporting illegal activity of their employer to a lawful authority or who testify in a lawful investigation or proceeding.

Conclusion: Summary of Recommendations

1. If Transport Canada abandons its attempt to have effective regulated FA F&DT limitations, Part III of the Code must be amended to create such reasonable and effective limitations for flight attendants under the Code and its related regulations.
2. Airline employers (other than Cathay Pacific) do not calculate flight attendant pay or work time on the basis of duty time. Nonetheless, a lower payment of overtime threshold (reduced from 40 x 52 = 2,080 hours) to 1,820 hours annually (or 35 x 52) would be a good step to ensure overtime payment for excessive work hours, particularly in a condensed time frame.
3. There should be legislated opportunities for 15 minute rest breaks every four hours of work (which for flight attendants should be calculated from the start of a duty period).
4. There should be legislated opportunities for meals after four hours of work, with due consideration for the operation (e.g. a meal break will not be scheduled to occur when an aircraft is landing) (again, calculated from the start of a duty period).
5. Breaks and meals should be taken in appropriate surroundings.
6. The federal government should re-introduce a single adult minimum wage in its own jurisdiction.
7. The new single federal adult minimum wage should be set at $10 per hour. Provinces should be encouraged to match this new federal minimum wage.
8. For employees in “continuous operations”, the legislated general holiday entitlement should be multiplied by a factor of 1.4 (14 over 10) to ensure parity with "regular" employees in terms of available time off.
9. For work on a statutory holiday, “continuous operations” employees should always receive the pay entitlement under section 198 (a).
10. A tenth paid general holiday should be added, preferably as a “floater” at the employee's option.
11. Division VII be amended to ensure a preventive leave of absence for pregnant workers with their regular rate of pay from their employer.
    NOTE: Unlike the recent Bill C-380, this right should be enshrined in the federal Code itself and be made available to all federal sector workers regardless of province.
12. Reasonably practicable" in sections 205 (1), (3) and (4) needs to be changed to more accurately reflect the employer's duty to accommodate an employee up to the point of undue hardship.
    NOTE: This test of undue hardship should also apply under section 208.
13. The Code should be amended to protect clearly the vacation entitlement of employees on leave.
14. Add additional paid bereavement leave of up to two days (depending on the location of the deceased family member) for necessary travel in the event of the death of an immediate family member.
15. Clarify the interpretation and application of sections 239 (1) and 239.1 (1) to prohibit the application of arbitrary company-imposed attendance management systems and programs.
16. Amend Division XIII to provide an employee right to take up to ten paid days per year to deal with personal and family responsibilities, including disruptions to child care and elder care arrangements, dealing with household illness, domestic emergencies and medical appointments.
17. Add appropriate provisions to Division XIV that protects Canadian employees from being terminated solely because they have been identified by the United States as a “security risk”. There should be the option of equivalent alternative employment if the “security risk” determination cannot be overturned.
18. Amend Division XV.1 to include workplace psychological harassment.
    NOTE: The amendments contained in clauses 25 through 29 of Bill C-360 merit consideration here, as well as the definition of “psychological harassment” contained in that legislation.
19. Add a new Division (or amend existing Division XIV) to prohibit employers from punishing or taking reprisals against their employees for reporting illegal activity of their employer to a lawful authority or who testify in a lawful investigation or proceeding.

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