First Aid to the General Public – Allowance for Employees

Background

On June 14, 2011 the NJC issued a Communiqué which clarified the Definition of “General Public” because it had been a recurring issue dealt with by the Occupational Health and Safety Committee. Department X subsequently issued a Bulletin dated March 18, 2013 to its staff outlining the criteria to be considered for paying the First Aid Allowance.

In response to the Bulletin, Department X received 1054 grievances in which the employees grieved the Employer’s decision to retroactively deny the First Aid Allowance beyond June 14, 2011 as per the First Aid to the General Public – Allowance for Employees Directive (the Directive). On May 7, 2015 the Executive Committee reached an impasse on the matter (20.4.244). This grievance was then referred to the Federal Public Sector Labour Relations and Employment Board (FPSLREB) and was denied on January 17, 2019.

The grievors in the present matter are employees of Department X requesting to be paid the First Aid Allowance. While providing first aid is mentioned in their Statement of Duties, the frequency to which the grievors administer first aid is disputed. The Department’s position is that providing first aid is an inherent part of the responsibility of their job, and that that makes it a regular duty. Therefore, the Department’s position is that they do not meet the criteria to be paid the First Aid Allowance.

Grievance

The grievors are grieving that they are formally required by their Department to be available on a regular basis to provide, in addition to their regular duties, first aid to the general public, but are not paid the first aid to the general public allowance in keeping with the First Aid to the General Public – Allowance for Employees NJC Directive.

Bargaining Agent Presentation

The Bargaining Agent representative is of the opinion that the grievors were not treated within the intent of the Directive. The representative drew the Committee’s attention to section 5.1 Eligible Employees, which outlines the four conditions which must be met for an employee to be eligible to receive the First Aid Allowance and confirmed that the grievors had satisfied all conditions. They also drew the Committee’s attention to section 5.2 Excluded Personnel, which outlines two exclusions to the entitlement, and noted that they do not apply to the grievors.

The representative explained that the Department has historically maintained that the exclusions do apply to this group, arguing that being a first responder is inherent to their work description and therefore the employees are already being paid for administering first aid-related activities as part of their yearly salary. The representative argued that this is incorrect. It was explained that they provide first aid care to those in need, and they do so in the performance of their work not as first responders, but as peace officers.

The representative noted that the intent of the Directive is to pay employees required to be available to render first aid to the general public. The grievors are required to do just that, and they are trained in first aid. The representative noted that one of the key activities of their statement of duties outlines that they provide “first response capabilities with powers to arrest and/or detain individuals suspected of having committed offences under various Acts of Parliament.” The representative argued that the Department is improperly applying the term “first response,” suggesting that first response and first responder are interchangeable. The representative maintained that the grievors provide a first response in the context of being on the front line of the country’s borders, with powers to arrest and detain persons suspected of breaking the law; this is not the same as first responder duties in medical emergencies. Furthermore, the representative compared the grievors to Fisheries Officers who receive the First Aid Allowance. Their statement of duties provides only that they “manage and deliver response to small scale crises”. The representative argued that this is very similar to the grievors’ statement of duties, which specifies that they provide a first response capability.

The representative also noted that professionals who provide medical intervention or medical response as inherent responsibilities in their job have medical standard operating procedures (SOP) drafted and implemented to ensure best practices and uniformity of application. The representative noted that the Department does not have any SOPs for medical interventions or medical responses for the grievors to follow. The Department also does not require the grievors to have membership in any medical association nor do they provide specialized equipment and training above and beyond basic first aid training. The representative explained that medical training, including first aid (which is only provided every three years) is often done in-house, except for the yearly training and testing which employees must pass to respond to medical calls. In contrast to this, firefighters, who are in fact true first responders, are given yearly first aid training. Firefighters are also equipped with medical bags that contain, oxygen, blood oxygen readers, breathers and rebreathers, suction devices, defibrillators, and stretchers. The grievors are not equipped in a comparable way.

The representative referenced The Memorial Grant Program for First Responders, which the Department is responsible to report to Parliament on. The Program defines a first responder as “an individual who was employed or formally engaged to carry out the duties of a police officer, firefighter, paramedic, correctional officer, parole officer or probation officer by a Canadian emergency service in Canada”. The representative underscored that the occupations listed are very specific, and the grievors’ positions are not listed among those who are considered to be first responders.

The representative concluded by summarizing that had the Department intended the grievors to be first responders, they would have explicitly written that in the statement of duties, they would have included them in definition of first responders in the Memorial Grant Program for First Responders, they would have issued SOPs for them to follow, they would provide them with more than just first aid training, and they would provide them more equipment than a basic first aid kit. The Department, however, has fulfilled none of those requirements.

The grievors were not treated within the intent of the Directive, and the grievances should therefore be upheld, and corrective actions awarded.

Departmental Presentation

The Employer representative is of the opinion that the grievors were treated within the intent of the Directive. The representative argued that the purpose of the Directive is to compensate certain employees required to provide, in addition to their regular duties, first aid to the general public. It is not intended to compensate employees who voluntarily render first aid to their co-workers, or for employees where the provision of first aid is an inherent requirement of their position.

The representative referenced section 5.1 of the Directive, which outlines the four requirements that must be met for the employees to qualify for the First Aid Allowance. The representative maintained that the grievors do not meet the second criteria, “to be formally required by the department to be available on a regular basis to provide, in addition to their regular duties, first aid to the general public”, because this condition is an inherent requirement of the grievors’ positions, therefore it is not “in addition to their regular duties.” Furthermore, the representative argued that section 5.2 states that the First Aid Allowance will not be paid to employees where the provision of first aid is an inherent requirement of their position. The Department is of the opinion that providing first aid is an inherent requirement of the grievors’ positions. The representative also referenced the OHS Committee Communiqué dated June 14, 2011, where it is stated that the requirement to provide first aid to the general public cannot be a major key activity of the position in order to be eligible for the allowance under the Directive.

Under the Key Activities section of the grievors’ work description, the representative referred to the second paragraph which specifies that the position “provides a first response capability with powers to arrest and/or detain individuals suspected of having committed offences under various Acts of Parliament.” The representative explained that the definition of a first responder is an individual with specialized training who provides immediate, or early, assistance in the event of an emergency; providing first aid is an integral component for any such situations. The representative continued, noting that several references are made to the requirement to use physical force and defensive equipment, as well as the capacity to handle firearms and weapons and make them safe to ensure compliance and the safety of the officer, client, and members of the public.

The representative noted the Working Conditions section of the grievors’ work description, where it that states that: “There is potential for serious injury from assaults by suspect persons or persons being detained or arrested. There is no control over when these situations may be encountered, and they may occur at locations remote from the main work sites. There is also the potential for exposure to hazardous goods while examining people, personal effects, shipments and conveyances originating in regions afflicted by contagious disease.” The representative underscored that the Department is responsible for providing integrated services that support national security and public safety. In order to fulfill their mandate, the grievors have to deal with demanding events, and they may need to physically intervene with an individual in order to arrest or detain them. Injuries to themselves or the people around them are a possibility, and the representative explained that the grievors have to react appropriately according to the situation.

The representative also referenced the Bouchard v. Treasury Board 2019 FPSLREB 5 decision, in which the adjudicator concluded that: “[edit] (the grievors’ positions) are clearly responsible for providing first-response capabilities, which according to Mr. Markell includes delivering first aid when needed. This, then, makes administering first aid to any traveller an inherent part of [edit] (the grievors’ positions’) job duties. [Edit] (The grievors’ positions) are required to administer first aid not because they are peace officers but because the employer included it in their job description.” The representative reiterated further confirms that providing first aid is an inherent requirement for the grievors.

In conclusion, the representative submitted that the provision of first aid is an inherent requirement of the grievors’ positions, and as such the grievors are not eligible for the allowance in accordance with paragraph 5.2(b) of the Directive. The grievors were therefore treated within the intent do the Directive, and the grievances should be denied.

The representative requested, however, that should the Committee find that the grievors were not treated within the intent of the Directive, retroactivity be limited to the 25 working days preceding the date of the grievances.

Executive Committee Decision

The Executive Committee considered the report of the Occupational Health and Safety Committee which concluded the grievors had not been treated within the intent of the Directive. The Executive Committee accepted the report. As such, the Executive Committee upheld the grievance. It was noted that the Treasury Board Secretariat representative will endeavour to speak directly to the Department on the issues of application and retroactivity.