Unattended ship deemed unsafe by management
A shipping company began requiring two employees to sleep onboard a boat each night it was docked overnight at port.
But the union argued the workers — who were expected to monitor the ship for safety reasons — should be compensated for the time spent onboard.
The M.V. Gallipoli was a ferry vessel operated by the Newfound and Labrador Department of Transportation and Works, and began and ended its days in the port of Ramea. Most nights, it was docked in the small town while its crew lived in the surrounding area on Northwest Island, located south of the mainland.
Before October 2014, no crew members were regularly remaining on the ship overnight. Shawn Marshall, acting director of marine operations, was advised by Captain Roger Dominie that because most crew members resided in Ramea, none were staying overnight onboard the vessel while it was docked.
Marshall advised the captain at least one crew member should stay onboard every night in case of emergency. Occasionally, stayed on the ship to sleep.
A schedule was eventually prepared for two crew members to take turns staying overnight.
On March 9, 2015, Marshall wanted to further clarify the issue by contacting Siri Herat at Lloyd’s Register about vessels being left unattended overnight. He was told leaving ships unattended was a violation of the International Safety Management code and was therefore an unsafe practice.
Marshall also referred to a 1999 company memo written by Gordon Murphy, director of human resources. “At least one employee must remain on board each of our vessels overnight to ensure security,” the memo read.
Finally, the Canada Shipping Act states “a vessel that is securely anchored in port or securely moored to shore shall ensure that a deck watch is maintained.”
During the times a worker slept onboard, none of them grieved the fact overtime was not paid.
The policy was grieved by the union, the Newfoundland and Labrador Association of Public and Private Employees (NAPE) on Nov. 4, 2014. It argued that requiring workers to spend the night onboard fit the definition of overtime in the collective agreement.
It also argued that when other ships were docked and crew members chose to bunk on the ships because they did not have accommodation on land, it meant the employers’ requirement to have the ships manned at all times made the company argument for safety disingenuous.
The employer countered saying that simply having crew members sleep onboard did not constitute work that should be compensated. And there was no language in the collective agreement that stipulated how much an employee should be paid for being onboard overnight, so none should be paid.
Workers were scheduled on a 14-days on, 14-days off rotation and receive $4,294 each year “in consideration of the hours worked by employees in excess of the hours contained in the established daily sailing schedule (EDSS) for their respective service and being available for callback to work for the duration of their shifts,” according to the collective agreement.
An estimate of $6.9 million to compensate all those who stayed after hours was too onerous, according to the company.
In finding for the employer, arbitrator James Oakley ruled no overtime should be paid for workers who spend the night onboard the Gallipoli.“There is no provision in the collective agreement to pay compensation to employees who stay overnight on vessels outside the hours of the EDSS and who are not called to perform work on the vessel or to work an extra trip outside the EDSS.”
There should also be no difference between those who chose to stay overnight and those who were required to stay onboard, according to Oakley.
“The collective agreement does not contain any language to make a distinction between crew members based on the reason they stay overnight on vessels, or to make a distinction between crew members based on the vessel or the ferry service.”
Reference: Government of Newfoundland and Labrador (Marine Services) and Newfoundland and Labrador Association of Public and Private Employees. James Oakley — arbitrator. Christa Chaplin for the employer. Ed Hogan, Paul Foley for the employees. May 9, 2016.
