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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.