On March 10, 2011, Bob Howe and Randy Ai of Davies Howe Partners LLP appeared before the Federal Court of Appeal on a judicial review of a decision by the Canada Industrial Relations Board (“the Board”). The impugned decision allowed for the unionization of Captains and Chief Engineers onboard vessels owned and operated by the largest inland shipping company in Canada.
The issue before the Federal Court of Appeal was whether Captains and Chief Engineers exercised “management functions” within the meaning of section 3(1) of the Canada Labour Code, as doing so would exclude them from unionization.
The case before the Federal Court of Appeal raised important questions on the extent of a captain’s management powers in the age of technology. In the past, ship captains were no doubt the de facto managers of their vessels. Onboard a ship sailing at sea, there was no greater authority than the captain himself. The captain had the power to discipline employees, enforce company policies, and make autonomous decisions.
With the advent of new technology, and especially with improvements in communications technology, captains are now connected more readily to shoreside management. This in turn, gives shoreside management greater control over the actions of a captain at sea.
In this new age of technology, are the core management powers of captains diminished? Or are their fundamental roles as the highest authority onboard a vessel unchanged? The answers to these questions not only have significant implications for labour relations but also for the shipping industry in this country.
In the result, despite our able and thorough submissions, the Federal Court of Appeal dismissed the application for judicial review, allowing the Board’s order permitting the unionization of ship Captains and Chief Engineers to stand.
Randy Ai
