March 25, 2004
20.4.208
The employee, a Chief Operating Engineer, grieved management's non-compliance with section 124 of the Canada Labour Code Part 2, section 1.5.3 of the Boiler and Pressure Vessels Directive, and New Brunswick Regulation 84-175 under the Boiler and Pressure Vessels Act. The employee requested compliance with the aforementioned authorities and, in particular, specification that the grievor be granted standby status when away from work given his responsibilities as a Chief Operating Engineer under provincial regulations.
The grievor is a Chief Operating Engineer. As such, he has charge of and responsibility for the safe operation of a heating or power plant at all times. Because the shift engineer is not responsible at all times, the grievor maintains that he remains in charge of and responsible for the safe operation of the plant even when he is absent from the plant as he responds to trouble calls. The grievor received standby pay for the heating season 00/01 (from September 2000 until May 2001). When his request for standby pay for the heating season from September 2001 to May 2002 was declined in September 2001, he filed his grievance.
The Bargaining Agent representative indicated that the grievor is an indeterminate Chief Operating Engineer (COE) working in the central heating plant in location A. According to Provincial Regulation 84-175, a COE is a power engineer who at all times has charge of and the responsibility for the safe operation of a heating plant or power plant and has such other powers and duties respecting the heating plant or power plant and persons therein as prescribed in the Act and this Regulation. She said that for the grievor to be responsible at all times, he should be placed on standby duties by the employer. The grievor was placed on standby duty during the period September 11, 2000 to May 31, 2001.
The Regulation also provides a definition of the shift power engineer, which says that he may assume the duties of the Chief Power Engineer. Nonetheless, she submitted that this responsibility was only applicable when the COE is absent from the heating plant or power plant. As such, the shift Power Engineer is not required to assume these duties at all times. She added that he could only do so under the direction and supervision of a Chief Power Engineer as indicated in the Regulation.
The Bargaining Agent representative indicated that in correspondence to the grievor, management had indicated to the grievor that failure to perform or carry out his duties would result in disciplinary action. She stated that this could only mean the grievor had to be available at all times and standby duty was the means to achieve that. Otherwise, the employer was only putting the plant and employees in jeopardy.
The Bargaining Agent representative concluded by saying that the grievor was not treated within the intent of the Boiler and Pressure Vessels Directive and the applicable provincial authorities derived from the said Directive and requested that the Occupational Safety and Health Committee uphold the grievance.
The Departmental representative submitted that the grievor was placed on standby, and paid accordingly for the winter heating season of 2000/2001 because of the conversion to natural gas in the plant. It was stated that, at the time, the grievor was the only person within the plant qualified and trained to work with boilers operating on natural gas. The memo authorizing the standby for that season, specifically stated that he was to be put on standby duties from start of heating season on September 11, 2000 to end of heating season May 31, 2001 and that standby duties of COE would be revised on a yearly basis to justify requirements. The other members of the central heating plant subsequently received training on natural gas operations.
The Departmental representative indicated that the grievor requested standby pay for the following heating season of 2001/2002, but management denied his request as it interprets the provincial Regulation to mean that the shift engineers have the authority to perform the powers and duties of the COE when the COE is absent from the heating or power plant.
The Departmental representative stated that it would be unreasonable to expect an employee to be always available as the grievor interprets his responsibility. While it might be reasonable for a COE to be on call or on standby for a specific reason and a specified time period, as was the case with the grievor for the winter heating season of 2000/2001, it is not the norm for a COE to be paid standby on an ongoing basis. To rule that persons occupying positions like his should be paid standby on a continuing basis would create an expensive precedent that would have a wide-ranging impact not only on the Department, but also on other government departments and the private sector throughout North America.
The provincial Boiler and Pressure Vessels Act gives provision for a COE's absence such as being at home on weekends and at night, annual and sick leave, courses, etc. The integrity of the Act and the safe operation of the heating plant are maintained through the shift engineer who has the same power and duties as the COE. It was submitted that if an emergency situation arises which requires the presence of any employee in order to safely repair, or give direction/guidance on how to perform work, this employee is expected to make himself available, if contacted. He is then remunerated as per the collective agreement if his services are required back at the work site.
It was submitted that the local manager met with the Chief Boiler Inspector for the province who confirmed management's interpretation of the provincial regulation: as long as there is a shift engineer on duty within the plant, there is no requirement for the grievor to be on standby and there is compliance with the Act and Regulations.
The Departmental representative maintained that the grievor alleged that management is not compliant with section 1.5.3 of the Boilers and Pressure Vessels Directive. The fact that management met with the Chief Inspector for the province for an interpretation of the provincial regulations to ensure compliance with the provincial standards justified compliance with this section of the Directive. On that point, he added that the jurisdiction of the NJC was limited to a determination as to whether or not local management had attempted to comply with the Boiler and Pressure Vessels standards for the province. He indicated that local management had done so, ensuring compliance with the Directive.
The Executive Committee considered and agreed with the report of the Occupational Safety and Health Committee. The OSH Committee reviewed paragraph 1.5.3 of the Boiler and Pressure Vessels Directive which refers to provincial regulations stipulating the authority granted a shift engineer who has charge of and operates a heating plant or power plant under the direction and supervision of a Chief Operating Engineer. These regulations provide that the shift engineer has authority to perform the powers and duties of the COE when the COE is absent for the heating plant or the power plant. Accordingly, the Committee agreed that the grievor was treated within the intent of the Directive. The Committee was of the view that the evidence presented showed that there was a qualified engineer on site at all times.
Consequently, the Committee denied the grievance.