Grievance Committee Archives - Page 5 of 17

CHQ-21-13 – Cease and Desist Motion

Lisa Raymond on August 6, 2021

On July 28, 2021, your Union filed a policy grievance CHQ-21-13 – COVID-19 Leave of Absence (To view click HERE). Today, your Union filed a motion for an interim order directing Air Canada to cease and desist from:

· denying members’ statutory entitlement to take COVID-19-related leaves under section 239.01 of the Canada Labour Code;

· demanding members provide documentation to substantiate the COVID-19-related leave in violation of section 239.01 of the Canada Labour Code and Canada Labour Standards Regulations; and

· refusing to process COVID-19-related leaves beyond September 25, 2021 in violation of the Canada Labour Code and Canada Labour Standards Regulations.

The Union submits it is entitled to an interim cease and desist order until a determination on the merits of the case is rendered for the following reasons:

The Case on the Merits is Arguable and Favours Interim “Cease and Desist” Order

In breach of its statutory obligations to grant a job-protected unpaid leave of absence under s. 239.01 of the Code, since July 2021, the Company has denied all but one COVID-19-related leave to the Union’s members at first instance. Moreover, Air Canada has required eligible members to provide supporting documentation to substantiate the leave notwithstanding that there is no statutory obligation for employees to provide anything beyond a “written declaration” if the employer requires one. Indeed, the Code explicitly provides that an employer may require a written declaration. There is no dispute that completing the request form on the online kiosk satisfies the written declaration criteria under s. 239.01(8) of the Code. The Company’s broad and excessive demands for confidential and private information and documentation of the member and/or their family members constitutes an unreasonable and unjustified breach of privacy rights of members and their family members.

Air Canada is unreasonably frustrating our members’ right to access their statutory entitlements under the Code. In doing so, it has unreasonably aggravated the circumstances of members already facing hardship because of COVID-19. Without a doubt, Air Canada has breached its statutory obligations under the Code and is discriminating against members contrary to the Canadian Human Rights Act.

Balancing of Harm to Both Parties Favours Interim “Cease and Desist” Order

There is no remedy that can provide members the timely leave they require as a result of the COVID-19 pandemic. The personal COVID-19 leave or caregiving COVID-19 leave is time-sensitive and it cannot be remedied with unpaid leave at a later date. Indeed, the federal government has indicated that the COVID-19-related leave Code provisions will be repealed by no later than November 20, 2021. This is not a situation where retroactive redress is appropriate or even possible.

Further, it is settled law that putting privacy interests at risk constitutes irreparable harm. In this case, in the absence of a statutory requirement, the Company refuses to grant members access to their statutory leave entitlements unless the member submits confidential and private information and documentation to an unidentified entity at ifswellness@aircanada.ca. The Company has not taken any steps to protect the privacy interests of members and members’ families notwithstanding that it is not entitled, statutorily or otherwise, to the members’ confidential and private documentation. Once the information is on Air Canada’s servers, there is simply no way of eliminating knowledge of it. The Supreme Court of Canada has repeatedly recognized that this type of harm is irreparable, specifically that “loss of that privacy interest would, in itself, constitute irreparable harm”. Further, “privacy, once lost, cannot be regained”.

The Code provisions for COVID-19 leaves will be repealed by no later than November 20, 2021. Without a cease and desist, the members’ statutory entitlement to access the time-sensitive leaves will be meaningless.

The Union is aware that some members have reached out to the Labour Program:

https://www.canada.ca/en/employment-social-development/corporate/portfolio/labour.html

We do request that you advise the Union on your communications with the Labour Program, and that you cc Component on any written communication.

CHQ-20-12 – Post Duty Ground Credit – RESOLVED

Lisa Raymond on July 29, 2021

The Union wishes to advise you that a resolution has been reached for grievance CHQ-20-12 – Post Duty Ground Credit, which was filed in relation to additional ground-time incurred by cabin crew operating to Hong Kong (HKG). This is as a result of the COVID-19 testing upon arrival and waiting at the designated holding areas until all crew receive their results.

As many cabin crew have reported, this testing procedure has caused late arrivals for check-in at the hotel.

The Company and Union have signed off on the attached MOA (CLICK HERE), where the company will pay operating and deadheading cabin crew who must abide by the test and hold requirements in HKG, 1 hour and 30 minutes at their regular rate of pay for their classification applicable to the duty period, retroactive to March 20, 2021. The Company will process the retroactive payments on the next pay cheque and payment will continue going forward while the test and hold requirements are in place.

If you have any questions, please do not hesitate to reach out.

In solidarity,

CHQ-21-13 – COVID-19 Leave of Absence, CLC section 239.01(1)

Lisa Raymond on July 28, 2021

The Government of Canada implemented temporary measures to ensure that federally regulated employees can take the time off work they need in the face of the current spread of COVID-19. The measures include statutory amendments to the Canada Labour Code to address significant disruptions in the workplace as a result of the pandemic.

Section 239.01(1) of the Canada Labour Code provides that “every employee is entitled to and shall be granted a leave of absence” if they are “unable or unavailable to work for reasons related to the coronavirus disease 2019 (COVID-19).” The Code provides that federally regulated employees are entitled to the following leaves:

1. Personal Leave
Federally regulated employees are entitled up to 4 weeks of job-protected unpaid leave in the event they have contracted or might have contracted COVID-19, have underlying conditions that would make them more susceptible to COVID-19 or they are self-isolating for reasons related to COVID-19 (Code, s. 239.01(1)(a)).

2. Caregiving Leave
Federally regulated employees are entitled up to 42 weeks of job-protected unpaid leave if they must care for a child under 12 years of age and/or they must care for a family member who requires supervised care due to the reasons specified in the Code (Code, s. 239.01(1)(b)).

To take a COVID-19-related leave, an employee must notify their employer in writing as soon as possible of the reason for the leave and the length of leave (Code, s. 239.01(8)). The Code does not require that employees provide a medical certificate or supporting documentation to substantiate the leave.

As federally regulated employees, members are entitled to and shall be granted a COVID-related leave of absence. Air Canada has breached its statutory obligations under the Code by denying leave to members who have notified the company of the reason for their COVID-19-related leave via the company’s “e-Leave” online kiosk. The union has learned that members receive an auto-generated response denying leave. In denying the members to their entitled leave, the company is demanding that members disclose “supporting documentation” to substantiate the leave. The union believes that the demand for documentation is unwarranted given the plain and clear language of the Code.

The union understands that the stress and anxiety that members are already experiencing because of COVID-19 is exacerbated by the company’s denial of your entitlement to COVID-19-related leave and Air Canada’s gratuitous and unjustified demands for confidential information. The union has filed a policy grievance (Click HERE to view) and is seeking a cease and desist order against the company for continuing to breach its statutory obligations under the Code and against Air Canada’s broad and excessive demands for confidential information.

If you have applied for a job-protected unpaid leave of absence due to COVID-19 and Air Canada has denied your request, please contact me by replying to this email or emailing w.lesosky@accomponent.ca.

In Solidarity,

Wesley Lesosky
President, Air Canada Component of CUPE

CHQ-18-10: Crew Rest Unit Bunk Kits

Lisa Raymond on May 26, 2021

The Union is happy to advise that we have received a positive arbitration award on grievance CHQ-18-10: Crew Rest Unit Bunk Kits. The grievance was related to the number of sheets, blankets, and pillowcases that are to be provisioned for each crew member as outlined in LOU 28. The grievance proceeded to an arbitration hearing with our Chief Arbitrator William Kaplan on May 19, 2021.

The Union’s position was that LOU 28 was straightforward: for every flight leg scheduled to exceed 8 hours, cabin crew members shall receive two clean sheets, two clean pillowcases and two clean blankets. The Company took the position that it had a long-standing consistent practise of providing one sheet, one pillowcase and one blanket for each flight where a crew bunk kit was to be provided.

After reviewing the briefs, authorities and the submissions made at the hearing, Arbitrator Kaplan found that the grievance is allowed. He found that the Collective Agreement requirement is completely clear and does not permit for an interpretation brought forward by the Company. He found that the remedy should be limited to a declaration of breach with the Company provided sufficient time to come into compliance. A full copy of his award can be found HERE.

The Union has already reached out to Air Canada for a date of implementation of this award and once this is secured, we will advise.

In solidarity,

CHQ-21-05 – Mixing of Extensions and Improper Designation of a Pairing (Articles L22, L60.04)

Lisa Raymond on May 13, 2021

The Union has filed a policy grievance about Air Canada’s improper designation of extension pairings (click HERE to view). Although the Collective Agreement, including Article L60.04.05, requires Air Canada to designate each pairing based on the longest leg within that pairing, Air Canada has recently started mixing extension pairing rules within a single pairing.

For example, if the longest flight leg within a pairing falls under LOU 22A, the entire pairing should be designated as an LOU 22A pairing. Therefore, all rules under LOU 22A should apply to all flight legs within that pairing (crew rest, crew complement, duty period limitations, etc.).

For the May 2021 block month, however, the Union discovered that ICN pairings in YVR were built with different rules on each of the flight legs instead of applying the LOU 18 rules (the longest leg within that pairing) on the entire pairing. For example, pairings involving flight 28 (ICN-YYZ, L18) were combined with flights ac25 (YVR-ICN) and ac119/127 (YYZ-YVR) and the crew complement on flights ac25 and ac119/127 was based on the lower B5 crew complement instead of the required LOU 18 crew complement.

In this grievance, the Union is seeking to require Air Canada to comply with its obligations regarding the creation and designation of pairings.