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Ame Duty Time Limits


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I think as licenced AMEs we're are in a slightly better negotiating position than pilots, as there always seems to be enough pilots to go around, and new ones willing to come in and take crap jobs/schedules just for the sake of getting a foot in the door and building hours. The point being that I think we can have more of a say in influencing our own work schedules in regards to our employers.

 

I don't think that there can be a one-size-fits-all solution to AME duty limits, but I really see no reason we/they can't adopt something very similar to what pilots already have. Even on the most basic level, 8 hours continuous rest and a 14hr duty limit has worked just fine as my own personal limits, and the number of times that I've had to enact that limit have been few and far between. Most of the time, even 12 hour days can be avoided with reasonable maintenance scheduling and co-ordination with pilots/flying. Of course things happen and if the machine is broke and it's going to take some time, so be it. If it takes two days to get it done rather than pushing myself 16 hours and going all night, then that's the way the cookie crumbles. I ain't god. I've told a couple bosses when I'm at the limit, and have never gotten harassed for it. Maybe I've just been lucky to have good bosses.

 

Bottom line is that I think it's more-or-less up to the individual AME's to set their own schedules and limits with their employers, but perhaps some kind of minimal limit set by TC should be used, and individuals and companies can make things work within that framework to suit their own needs and operations. Obviously there's a difference between working 12 hour days in a 4 on 2 off rotation to the bush , versus 12 hour days 7 days a week on a busy base. But considering that we're all required to take human factors now, and the courses all talk about sleep cycles and circadian rythm, blah blah blah, a guarranteed full night's sleep should be the bare minimum. I also hear that some schools are now teaching human factors to apprentices. I think this is great, and at least plants a seed in the young kids' mind about limits, and might get them thinking a bit the next time they're on a 16 hour shift.

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The following was sent to PM Harper, Labour Minister Raitt and the appropriate critics of the opposition parties. The only reply of interest was from Raitt who without explanation declared that there was no conflict between the Canada Labour Code and the CAR. Presumably her position is that only when a pilot is actually at the controls is he considered to be at work.

 

AMEs already have their hours of work defined for them by the CLC. An overwhelming argument can be made for that the CLC governs pilots also. The issue will likely only be decided if it makes it into court which is always time consuming and expensive, and an activity which no one but lawyers are anxious to engage. But maybe one day a pilot, engineer or an association which represents them will be motivated to mount a challenge. It is almost certain that any pilot or engineer could work according to the CLC and his employer would ultimately be unable to do anything about it.

 

Employers will complain that if engineers and pilots work according to the CLC, then the helicopter industry will collapse. This may be so, but if for instance a pilot agrees to stand 42 consecutive 14 hour days then he is at perfect liberty to do so. But, as is often quoted, “One size does not fit all.”, and those who do not have the stamina to endure such a schedule should not be held to it.

 

To be fair, and to an ever increasing extent, some employers have made a serious effort to provide their employees with humane and civilized schedules. Unfortunately, others are not so accommodating.

 

**********************************************************************

********

 

The objective of this paper is to compare the Canada Labour Code and the Canadian Air Regulations as their provisions relate to the limits of the hours of work pertaining to pilots and aircraft engineers.

 

The reader is encouraged to examine fully all of the sections of legislation and regulation that are cited here to ensure himself that there are no provisions left unstated that would materially alter the author’s case.

 

The CLC makes clear that in the case of pilots and aircraft engineers, the CLC, as opposed to provincial legislation, applies. Section 2 of the CLC defines federal work, undertaking or business as follows:

 

“federal work, undertaking or business” means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,

(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,

(B) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,

© a line of ships connecting a province with any other province, or extending beyond the limits of a province,

(d) a ferry between any province and any other province or between any province and any country other than Canada,

(e) aerodromes, aircraft or a line of air transportation,

(f) a radio broadcasting station,

(g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,

(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,

(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and

(j) a work, undertaking or activity in respect of which federal laws within the meaning of section 2 of the Oceans Act apply pursuant to section 20 of that Act and any regulations made pursuant to paragraph 26(1)(k) of that Act;.

 

Section 168 of the CLC further states that:

 

168. (1) This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.

Section 169 of the CLC further states that:

169. (1) Except as otherwise provided by or under this Division

(a) the standard hours of work of an employee shall not exceed eight hours in a day and forty hours in a week; and

 

(B) no employer shall cause or permit an employee to work longer hours than eight hours in any day or forty hours in any week.

 

Section 700.16(1) of the CARs defines the maximum flight duty time as follows:

 

700.16 (1) Subject to subsections (5) and (7), no air operator shall assign a flight crew member for flight duty time, and no flight crew member shall accept such an assignment, if the flight crew member's flight duty time will, as a result, exceed 14 consecutive hours in any 24 consecutive hours. Where the flight is conducted under Subpart 4 or 5 using an aircraft other than a helicopter, flight duty time shall include 15 minutes for post-flight duties.

 

Herein lies a conflict. Employers of pilots regularly require them to stand the 14 hour duty day as a condition of their employment. The CARs allow 42 of these 14 hour days to be stood consecutively. In order to circumvent 8 hour day maximum specified in the CLC, employers will claim that the only time a pilot is working is when he is actually at the controls of an aircraft. What follows is intended to convince the reader that time waiting to fly is actually time worked.

 

No explicit definition of ‘work’ could be found in either the CLC or the CARs. However, two pieces of provincial legislation that shed some light on the matter were located as well as a definitive discussion of the issue of ‘engaged to wait’ as opposed to ‘waiting to be engaged’ by the U.S. Department of Labor.

 

The British Columbia Employment Standards Act defines work to be:

 

"work" means the labour or services an employee performs for an employer whether in the employee's residence or elsewhere.

(2) An employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee's residence.

 

In Saskatchewan, the Labour Standards Code says the following:

 

Hours of work and overtime pay

6(1) Subject to sections 7, 9 and 12, no employer shall, unless he complies with

subsection (2), require or permit any employee to work or to be at his disposal for

more than eight hours in any day or 40 hours in any week.

 

Canadian and American laws on many matters are similar if not identical. Indeed, the two systems have evolved from a common system originating in the England. Apparently, the issue of ‘waiting to be engaged’ and ‘engaged to wait’ required the U.S. Department of Labor issue Fact Sheet #22 which has this to say:

 

Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait."

On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.

 

To draw an example, imagine a helicopter pilot, a resident of Calgary AB, who is piloting a helicopter for an air operator who is contracted by the Alberta government to provide the helicopter to standby in Grand Cache AB in order to fight forest fires should they occur. The pilot receives a wage not dependent on any time he may fly. He carries with him a radio and a phone so that he can be quickly summoned to spring into action should the need arise. Most air operators would expect the pilot to stand the 14 hour duty day but would claim that he was not actually working if he did not fly during those 14 hours. The contention is that he is in fact working. He has been engaged to wait.

 

The CARs make the following definitions:

 

“flight crew member on reserve” - means a flight crew member who has been designated by an air operator to be available to report for flight duty on notice of more than one hour;

"flight crew member on call" - means a flight crew member who has been designated by an air operator to be available to report for flight duty on notice of one hour or less;

"flight crew member on standby" - means a flight crew member who has been designated by an air operator or private operator to remain at a specified location in order to be available to report for flight duty on notice of one hour or less;

 

This helicopter pilot fits the CARs definition of ‘flight crew member on standby’. He is also engaged in the activity of ‘work’ as defined by the British Columbia Employment Standards Act and is deemed to be ‘at the disposal’ of his employer under the terms of the Saskatchewan Labour Standards Code.

 

The situation for this pilot is really no different from the fireman who waits for fire, the paramedic who waits for injury, or the policeman who waits for crime. This pilot is working 14 hours a day, in contravention of section 169(1)(B) of the Canada Labour Code if the pilot chooses to work only 8 hours a day and 40 hours a week.

 

The ‘flight duty time’ as defined by the CARs can only be narrowly construed to be a period of time in which 8 hours, or the number of hours calculated using the averaging provisions of the CLC, of daily work can be completed. If he chooses to work longer than that, the pilot’s hours of work cannot exceed 14 for which he will be paid time and a half for the six hours that exceed 8.

 

Collective agreements between pilots and other aviation employees and their employers are common. Singularly lacking in the set of these agreements are those concerning on-demand air taxi operations. Examination of numerous such agreements reveals that clauses defining hours of work and grievance procedures are always present.

 

There can be little doubt that the Canada Labour Code supersedes the CARs. Transport Canada must make it clear to operators that they are not to take advantage of employees who may be ignorant of the law. TC may be seen as condoning potentially fatal industry practices if it does not.

 

Customer and employer pressure is a common complaint of on-demand air taxi pilots. Fear of reprisal for failing to yield to these pressures would almost vanish if pilots knew that grievance procedures were in place. Whereas the no-consequence reporting system of the still-born SMS effort may work, a reporting system back-stopped by a collective agreement will work.

 

The safety of the flying public is at stake. It is the responsibility of TC to amend the regulations so that the situation will be rectified.

 

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Fred,

 

I read your post, and while it is late for me and I may have missed something, I believe you have forgotten about the clause in the CLC for hour averaging. This is how the aviation world gets around the 8 hr day/40 hr week. Averaging has its draw backs, but it also has advantages. I've seen both ends of it, as most of us have, and unfourtunately the seasonal nature of aviation (helicopters especially) means this is the nature of the beast, the cost of doing business, etc.

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For ease of reference, the parts of the Canada Labour Code are cited below. The CLC should be carefully read by all Canadian workers. There are parts that deal with paid vacation, and pay for working on holidays. In many cases employees are not getting their due that the law allows them.

 

An employee can agree to eschew the CLC and probably does so if he is contract. Contract employees are often under the misapprehension that they avoid some income tax by deducting employment expenses from their income. Careful examination of the tax laws will reveal that there are many expenses that unincorporated wage earning employees can deduct.

Considering the expenses and complexities of incorporation, incorporation is likely not worth it.

 

Contract employees often do not contribute to the Canada Pension Plan or Employment Insurance. If they do not, they are making a mistake.

 

Emboldened passages of the following CLC excerpts are due to the author of this post. If employees have accepted their employer’s version of averaging as a justification for long hours, they have been sold a bill of goods.

 

Modified work schedule

 

170. (1) An employer may, in respect of employees subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the standard hours of work set out in paragraph 169(1)(a) if

(a) the average hours of work for a period of two or more weeks does not exceed forty hours a week; and

(B) the schedule, or its modification or cancellation, is agreed to in writing by the employer and the trade union.

 

Idem

 

(2) Subject to subsection (3), an employer may, in respect of employees not subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the standard hours of work set out in paragraph 169(1)(a) if

(a) the average hours of work for a period of two or more weeks does not exceed forty hours a week; and

(B) the schedule, or its modification or cancellation, has been approved by at least seventy per cent of the affected employees.

 

Posting of notice

 

(3) Where a work schedule is to be established, modified or cancelled pursuant to subsection (2), the employer shall post a notice of the new schedule, or of its modification or cancellation, in readily accessible places where it is likely to be seen by the affected employees, for at least thirty days before the new schedule or its modification or cancellation takes effect.

R.S., 1985, c. L-2, s. 170; 1993, c. 42, s. 15.

 

Maximum hours of work

 

171. (1) An employee may be employed in excess of the standard hours of work but, subject to sections 172, 176 and 177, and to any regulations made pursuant to section 175, the total hours that may be worked by any employee in any week shall not exceed forty-eight hours in a week or such fewer total number of hours as may be prescribed by the regulations as maximum working hours in the industrial establishment in or in connection with the operation of which the employee is employed.

 

Averaging

 

(2) Subsection 169(2) applies in the computation of the maximum hours of work in a week prescribed under this section.

R.S., c. L-1, s. 30; R.S., c. 17(2nd Supp.), s. 4; 1977-78, c. 27, s. 6.

 

Maximum hours of work

 

172. (1) An employer may, in respect of employees subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the maximum set out in section 171 or in regulations made under section 175 if

(a) the average hours of work for a period of two or more weeks does not exceed forty-eight hours a week; and

(B) the schedule, or its modification or cancellation, is agreed to in writing by the employer and the trade union.

 

Idem

 

(2) Subject to subsection (3), an employer may, in respect of employees not subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the maximum set out in section 171 or in regulations made under section 175 if

(a) the average hours of work for a period of two or more weeks does not exceed forty-eight hours a week; and

(B) the schedule, or its modification or cancellation, has been approved by at least seventy per cent of the affected employees.

 

Posting of notice

 

(3) Where a work schedule is to be established, modified or cancelled pursuant to subsection (2), the employer shall post a notice of the new schedule, or of its modification or cancellation, in readily accessible places where it is likely to be seen by the affected employees, for at least thirty days before the new schedule or its modification or cancellation takes effect.

R.S., 1985, c. L-2, s. 172; 1993, c. 42, s. 16.

 

Vote

 

172.1 (1) Where a work schedule is established, modified or cancelled pursuant to subsection 170(2) or 172(2), any affected employee may, within ninety days after the new schedule or its modification or cancellation takes effect, request an inspector to conduct a vote to determine whether seventy per cent of the affected employees approve the new schedule or its modification or cancellation.

 

Duty of inspector

 

(2) Where a request has been made under subsection (1), the inspector shall conduct a secret vote to determine the percentage of the affected employees that approves the new schedule or the modification or cancellation.

 

Confidentiality

 

(3) A request made under subsection (1), the ballots and any other documents relating to the vote are confidential and shall not be given to the employer.

 

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I don't think limiting an engineer to 8 hours a day has too much to do with safety in the industry, but more with lifestyle. There are some places like Air Canada that if a person is so inclined they can work a 40 hour per week union job, but I really don't think that has any place working on helicopters in the bush or out in the field. It's simply the nature of the work we do, and I fully accept that. I am well paid, have good benifits, and more than enough time off. Actually I get more time off and work fewer hours in a year than someone working a union job. Not everyone in this industry has that, but union hours are not the solution for overworked engineers.

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I'm not sure but I believe the 48hr max Fred has posted is a Federal labour law not a Provinical law. Over the past many years it was not untill my company switched from Ontario to Federal labour law that working more than a 48hr week was an issue

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I don't think limiting an engineer to 8 hours a day has too much to do with safety in the industry, but more with lifestyle. There are some places like Air Canada that if a person is so inclined they can work a 40 hour per week union job, but I really don't think that has any place working on helicopters in the bush or out in the field. It's simply the nature of the work we do, and I fully accept that. I am well paid, have good benifits, and more than enough time off. Actually I get more time off and work fewer hours in a year than someone working a union job. Not everyone in this industry has that, but union hours are not the solution for overworked engineers.

 

BINGO!! At last!!

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I'm not sure but I believe the 48hr max Fred has posted is a Federal labour law not a Provinical law. Over the past many years it was not untill my company switched from Ontario to Federal labour law that working more than a 48hr week was an issue

 

I could be wrong here, and most companies can do what they like, but when it comes to labor law and governing of our profession (Engineers), it is all federal, which is why a lot of companies get away with hour averaging, where you work like mad, then you get time off when it's convenient for them, not necessarily you.

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