Author Topic: Authority to attach/second Class-B Reservist  (Read 3326 times)

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Online Lumber

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Authority to attach/second Class-B Reservist
« on: February 16, 2018, 10:41:59 »
Trying to find the legal framework for this one.

NDA para 27 - Attachment and Secondment, lays our that members on Active Service can be attached/seconded as deemed necessary. If the military says move, I move. Roger, out.

However, what about Class-B reservists? IN a previous discussion, FJAG and DAA both stated that:

Reservists are not automatically on "Active Service". To be on "Active Service" there is a need to be an Order in Council from the government that does so. Orders in Council have been issued for numerous operations such as peacekeeping etc that designate individuals etc to be on "Active Service" when they are part of that specific force.

There is a string of Orders in Council that reach back to 1950 that relate to NATO. The current one is PC 1989-583 which was issued on 6 Apr 1989. and provides:

My interpretation of this provision has always been that while inside Canada, reservists are NOT on "Active Service" unless specifically placed through some other, mission specific, Order in Council.

So, when a Class-A member signs up for a 2 year Class-B contract to say, be a unit recruiter, and then the HQ orders (despite the protests of the unit CO) that the member is to go spend 4 months teaching a course in Borden, what legal framework is that based on?

Yes, the member can simply cancel their contract and not go, but if they aren't on Active Service, how can they be attach the willy-nilly?

Is it NDA Para 33 - Service, sub-para 2  - Liability in case of reserve force? It looks like it at first, put then para 3 states:
Quote
"(3) Nothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only."

Aren't all reservists enrolled such that they are only liable to perform duty on active service only?

Is it maybe QR&Os 19.015 - LAWFUL COMMANDS AND ORDERS? But then technically, if the NDA says you can't order them to be attached, then wouldn't it be an unlawful order?

Cheers
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Offline dapaterson

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Re: Authority to attach/second Class-B Reservist
« Reply #1 on: February 16, 2018, 10:48:06 »
The clause you cite applies to the Supp Res, not the P Res.

Member can give 30 days notice if they don't want to go.  That said, the SOU they signed acknowledges that they can be sent anywhere to do anything (paraphrasing), so until the 30 days is up...
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Offline Remius

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Re: Authority to attach/second Class-B Reservist
« Reply #2 on: February 16, 2018, 11:03:01 »
Pretty much what dataperson said.

A class B individual can be tasked for just about anything the employer deems necessary.

Our unit class B types are tasked out most summers to do things unrelated to their class B.  Higher HQ can trump COs protests in that regard.

The joys of being on class B for a reserve establishment.  I was once on three year class b where I ended up spending 14 months of it in all away from my actual class b job doing anything the unit or the brigade wanted or needed me to do. 

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Re: Authority to attach/second Class-B Reservist
« Reply #3 on: February 16, 2018, 11:17:45 »
The only potential legal wiggle room on this (on reflection, and not being a lawyer, and taking legal advice from randos on the Internet gets you what you deserve) is that s27 speaks of components of the CAF.  If the barracks room lawyer were to argue that they are part of the Reserve Force, and that the entity at Borden is part of the Regular Force, they may have a case.

Of course, if they are tasked, not "attached or seconded" then the question is moot.

But I would not advise anyone to try this line of attack.

Quote
27 An officer or non-commissioned member may be attached or seconded to another component of the Canadian Forces or to any department or agency of government, any public or private institution, private industry or any other body in such manner and under such conditions as are prescribed in any other Act or in regulations, but no officer or non-commissioned member of the reserve force who is not on active service shall be attached or seconded pursuant to this section unless the officer or non-commissioned member consents to the attachment or secondment.
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Re: Authority to attach/second Class-B Reservist
« Reply #4 on: February 16, 2018, 11:23:13 »
I'm getting very legal and reading this line by line, but the SOU doesn't sound very concrete: para 3B states:

Quote
b. during my period of service, I may be required to perform service anywhere in or outside Canada. Service outside Canada is active service in accordance with National Defence Act Section 31(1) and as provided by Order in Council PC 1989-583 (6 April 1989) and such other Orders in Council as may be passed from time to time. [color=lime green]I acknowledge that being on active service means: ...[/color]

For the bit in yellow, does this indicate that the SOU itself is the source of the authority to move people around, or is this sentence based on another reference, and if so, what?

For the two sentences in orange and lime green, the first one specifically talks about service outside canada. Nothing else before or after this in the SOU specifically states that the member is on "ACTIVE SERVICE" during the period of employment indicated on the SOU, so it would stand to reason that the next two paras relating to "Active Service" only pertain to service outside Canada.

So, yes, the SOU clearly states that the member may be required to perform service anywhere in or outside Canada", but what is the originating document/reference that gives birth to this authority.

The clause you cite applies to the Supp Res, not the P Res.

Member can give 30 days notice if they don't want to go.  That said, the SOU they signed acknowledges that they can be sent anywhere to do anything (paraphrasing), so until the 30 days is up...


How do you reason that it only applies to the Supp Res and not the P Res? Not arguing so much as saying, "please elaborate"?

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Offline Remius

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Re: Authority to attach/second Class-B Reservist
« Reply #5 on: February 16, 2018, 11:45:03 »
Are you being sent on a CFTPO task?

Also will this task put you on active service?

When I was a recruiter they sent me all over Canada and I spent time tasked to teach a recruiter course in another city.  My boss said I had to. So I did.

Your boss is telling you. 

Basically unless what your boss is sending you to do puts you on active service as defined in the regulations then he is well within his rights to do so.  He can't post you and he can't deploy you operationally unless there is an order in council but just about anything else is fair game. Including lending you to another organisation for a time.

caveat: I'm not an expert but you are not likely going to win this.  If your CBG wants you teach in Borden for the summer and you are currently employed by said CBG you have two choices.  Go or put in your 30 days.  Or a third option of trying to convince then why you can't.
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Re: Authority to attach/second Class-B Reservist
« Reply #6 on: February 16, 2018, 12:23:12 »
Remius,

This has nothing to do with me, I'm Reg Force, and no one in my unit is crying fowl at the moment about being sent away this summer (yet...).

However, a junior Master Seaman was mentoring her subordiantes and explaining to them that if they ever take a Class-B contract, that they can be sent anywhere. Even if they get sent to the coast to sail, the Navy could say "too bad, you're going to teach basic trg in Valcartier this summer". So, they asked, and rightfully so, what the "reference" was for this.

I'm the guy everyone goes to at my unit when they need the exact reference and précis on any matter of policy, so I got asked to look into this. It's merely academic; we're not trying to get a Class-B reservist out of a crap posting.

So, I'm looking for the ground truth without doubt, and the use of all these different but similar meaning terms (Active Service, Reserve Service, Primary Reserve, Supplementary Reserve) is making it hard to get at the core, final answer.

I mean, Class-B can either be an SOU or simply a Route Letter. If the SOU is the source of the authority to move people around, then that means Class-B service itself does not put someone on Active Service, and SOU does, but like I alluded to earlier, the SOU doesn't actually say that someone is on active service.

I'm not arguing that people can't be sent around, I'm just trying to find out the source law that allows it.
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Offline dapaterson

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Re: Authority to attach/second Class-B Reservist
« Reply #7 on: February 16, 2018, 13:05:07 »
Quote
"(3) Nothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only."

QR&O refers to this applying to Supp Res, not P Res.

Were I not trying to unbefuddle a Phoenix situation, I'd find the ref (in Chapter 9, I think).
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Offline Remius

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Re: Authority to attach/second Class-B Reservist
« Reply #8 on: February 16, 2018, 13:08:37 »
Remius,

This has nothing to do with me, I'm Reg Force, and no one in my unit is crying fowl at the moment about being sent away this summer (yet...).

However, a junior Master Seaman was mentoring her subordiantes and explaining to them that if they ever take a Class-B contract, that they can be sent anywhere. Even if they get sent to the coast to sail, the Navy could say "too bad, you're going to teach basic trg in Valcartier this summer". So, they asked, and rightfully so, what the "reference" was for this.

I'm the guy everyone goes to at my unit when they need the exact reference and précis on any matter of policy, so I got asked to look into this. It's merely academic; we're not trying to get a Class-B reservist out of a crap posting.

So, I'm looking for the ground truth without doubt, and the use of all these different but similar meaning terms (Active Service, Reserve Service, Primary Reserve, Supplementary Reserve) is making it hard to get at the core, final answer.

I mean, Class-B can either be an SOU or simply a Route Letter. If the SOU is the source of the authority to move people around, then that means Class-B service itself does not put someone on Active Service, and SOU does, but like I alluded to earlier, the SOU doesn't actually say that someone is on active service.

I'm not arguing that people can't be sent around, I'm just trying to find out the source law that allows it.

Sorry lumber.  I didn't have the full context.
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Re: Authority to attach/second Class-B Reservist
« Reply #9 on: February 16, 2018, 13:34:57 »
Isn't this why long term (30+ day) Cl B reservists sign SOUs stating they can be sent where the CAF needs them? I was on my QL3 in 2003 when they had the massive power outage in Southern Ontario, and as the course senior was tasked to track down everyone on the course (it was a weekend) to make sure people were available to perform aid to civil power instead of the Cl B contract we all signed to do a career course.

I'd also agree that it falls under the Lawful Order clause, otherwise we'd have Cl B reservists refusing to be a transport rep (or anything else) as a secondary duty becuase "that wasn't the job they applied for."

Offline Piece of Cake

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Re: Authority to attach/second Class-B Reservist
« Reply #10 on: February 16, 2018, 21:14:26 »
If we are going to send class b's anywhere, in most cases to fill reg forces positions, then we better start paying them reg force wages. 
Policy is more than black and white.  We need to not only understand the spirit of why a policy was written, but also how the policy affects people.

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Re: Authority to attach/second Class-B Reservist
« Reply #11 on: February 16, 2018, 21:41:39 »
If we are going to send class b's anywhere, in most cases to fill reg forces positions, then we better start paying them reg force wages.

They're being sent on TD. You can't have your cake and eat it too (no pun intended). Once you sign a full-time contract, you work at the pleasure of the CAF Chain of Command. A Reg F member can't opt out of a job in 30 days and immediately accept another contract somewhere else. Yep, its not cool that you think you'll be staying at home working 9 to 4 in a clerk job and the Bde tells you they need instructors somewhere, but you likely should have thought of that before you went on your PLQ.

I once took a summer Cl B as a COMSEC custodian and was moved to a Store position a month later. I wasn't butthurt about it, simply glad I had the employment.

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Re: Authority to attach/second Class-B Reservist
« Reply #12 on: February 16, 2018, 22:38:11 »
Not trying to muddle stuff here but:

s 33(3) of the NDA only applies to the Supplementary Reserve because it is the sub-component of the reserve force which is not subject to any type of service or training other than being placed on Active Service. It takes an order in council to specifically do that. The Primary Reserve, on the other hand, and which is what we are talking about here is subject to all the provisions of service, active service, training etc. (These are very precise legal terms which are defined in the NDA but are so vaguely explained that you need to be an lawyer or personnel expert to understand them)

The SOU (or as I call it the Class B contract) does not place a primary reservist on Active Service. It does provide for the terms of employment that you are agreeing to. Generally it is written in favour of the CF and not the individual.

The extract cited by you from your SOU is your acknowledgement that you understand that the SOU permits the member to be employed anywhere including outside of Canada (There may be other elements in the SOU that state this as well.)

If sent outside the country then the member is automatically placed on Active Service when he leaves the country by virtue of Order in Council PC1989-583 which states that any officer or NCM of the reserve force is placed on Active Service when ANYWHERE BEYOND CANADA for fulfillment of Canada's NATO commitment. It is the leaving the country that causes the member to be placed on Active Service. So long as the member remains WITHIN Canada he is not on Active Service.

There are other specific orders and counsel that apply for each of the various other missions Canada does which are other than NATO commitments. One has to carefully look at the situation of where the member is being employed, the unit that they are employed at, manner of how his service there is stated and any particular orders in council that may be in effect to see if the member is being placed on Active Service.

Hope that clears things up a bit.

 :cheers:

« Last Edit: February 16, 2018, 22:40:51 by FJAG »
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Offline Ostrozac

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Re: Authority to attach/second Class-B Reservist
« Reply #13 on: February 17, 2018, 03:58:32 »
If we are going to send class b's anywhere, in most cases to fill reg forces positions, then we better start paying them reg force wages.

I'd argue that the key difference between Reg Force and Class B terms of service isn't the job you do, but where you live. A Class B reservist is of course subject to shift work, TD, field time, but he gets to choose the city where he lives. A Reg Force member lives wherever his posting message says. For some occupations, there's an element of choice/preference, but in many, you go where you're sent, period, sometimes with minimal advance notice or consultation.

Of course, if you extend my thinking, I suppose that Regulars on compassionate/contingency status should have a pay cut, since they are no longer subject to living anywhere in Canada at the drop of a hat.

Offline Piece of Cake

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Re: Authority to attach/second Class-B Reservist
« Reply #14 on: February 17, 2018, 04:02:14 »
You can't have your cake and eat it too (no pun intended).

I like cake.  This does not sound like cake....
Policy is more than black and white.  We need to not only understand the spirit of why a policy was written, but also how the policy affects people.

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Re: Authority to attach/second Class-B Reservist
« Reply #15 on: February 21, 2018, 08:59:30 »
Not trying to muddle stuff here but:
...

Hope that clears things up a bit.

 :cheers:

Thanks, FJAG. This pretty much settles what I've been thinking, to wit, PRes members are Class-B contract are not on Active Service, and the only thing allowing the military move Class-B members around during their period of employment is because it's stated so on the SOU.

(These are very precise legal terms which are defined in the NDA but are so vaguely explained that you need to be an lawyer or personnel expert to understand them)

Yea, that's why I inserted a quote from YOU in my original post  ;D
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Offline Oldgateboatdriver

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Re: Authority to attach/second Class-B Reservist
« Reply #16 on: February 21, 2018, 10:28:27 »
Yes, Lumber, FJAG is quite correct on the distinction between "service" and "active service", which means that there is no authority to attach post a reservist on a class B contract under the NDA, unless the reservist is first put on active service.

As a result, any authority would have to come from the SOU signed by the reservist.

However, and contrary to Dapaterson's interpretation of it, the portion you quoted (b. During my period of service, I may be required to perform service anywhere in or outside of Canada, ...) is NOT an authority to attach post either and does not give the "employer" (who would that be? The CO, the Brigade, NDHQ? In my mind, the "employer" here would be the class B contracting authority - in your case [Army?] I don't know who that is. In the Naval reserve it used to be (still is?) NAVRES HQ) an open ended capacity to move the reservist around to any other job than the contracted one.

The section relates to performance of the service for which the reservist contracted, not any other job. That is the actual basis of the contract between the reservist and the Crown: I accept job X, not any job whatsoever, anywhere whatsoever, you may want to move me around in. Otherwise, it's not a contract.

What the section you quote means is that, in the performance of the service for which the contract is let (the specific job) you may have to perform the service somewhere else.

So to get into an example, let's assume that a Sergeant is given a class B contract to be the Storesman at Unit YYY. That function, plus secondary duties normally associated with such employment, are the only one you can employ him in during the period of the contract. However, there could be a new storage system coming on line during the contract, for which there is a three weeks course at the other end of Canada on its operation. You can TD the Sergeant to that course because it is attended as part of his/her job under the class B contract. Or there could be a conference of Storesmen, and again here TD is appropriate. Third scenario: a natural disaster occurs and the employing unit is tasked with providing ten soldiers. The unit CO (and only the unit CO) can order that sergeant to go as part of his/her unit's contribution, because at that point, he/she is still in the job signed for in the class B contract.

None of this gives anyone above the reservist's direct CO, nor the direct CO the authority to post or even order that reservist to another job than the one he/she contracted for. In the example that was mentioned, of being "ordered" to go for  the summer to Borden (for example) as an instructor, such order would be unlawful as it would order a breach of contract. Which does not mean that the reservist could not go on a voluntary basis, but the reservist could not be forced to go on the basis of his/her class B contract.   
 

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Re: Authority to attach/second Class-B Reservist
« Reply #17 on: February 21, 2018, 10:50:47 »
As a rule, most SOUs include in the work description "Other duties as required"which is a broad catch-all that enables the CoC to do just about anything.

However, my understanding is that JAG lawyers are quite obstinate that a class B MOU is not a contract.  The CAF has terms of service (through legislation and regulation) which are what bind a CAF member, not the MOU. 
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Offline Oldgateboatdriver

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Re: Authority to attach/second Class-B Reservist
« Reply #18 on: February 21, 2018, 11:21:54 »
As a rule, most SOUs include in the work description "Other duties as required"which is a broad catch-all that enables the CoC to do just about anything.

No, it does not enable the CoC to do just about anything. This relates to what a I described, it relates to the types of secondary or exceptional duties that anyone in that job could be called upon to do as result of the fact that this is a military job. I gave some examples, but that is all that is possible: not a change of job altogether.

However, my understanding is that JAG lawyers are quite obstinate that a class B MOU is not a contract.  The CAF has terms of service (through legislation and regulation) which are what bind a CAF member, not the MOU. 

It doesn't matter what JAG's view class B or C MOU/SOU's as, the nature of the class B or C contracts, whatever you call them, is exactly that: contractual in nature - and that, BTW, arises from those legislation and regulations you talk about. It remains that you can only employ a reservist under class B or C in the job that he/she is "hired" for. Any modification must arise from an amendment to this relationship agreed by both parties to it. The only modification that can be done unilaterally is termination of the agreement mid-way, which can be done by either party as per the agreed terms (i.e. after the notice period provided for).

And even then, you have to be careful on the "employer" side. For instance cancelling a class B contract by the "employer" shortly after a reservist declines a proposed change in employment while the job he/she is in at the time does not cease to exist could be construed as retaliation for the refusal to change employment and considered disciplinary/administrative punishment for the exercise of one's right to refuse the amendment. That would be improper a give rise to a valid grievance.

I can tell you that, the few times we pushed back against such attempts at employing reservists outside of their assigned job under class B, the reg force officers in higher level of command/management got quite a schooling in reserve employment. Other than compulsory training requirements (14 days a year and one week end a month  ;D) or times when reservists are on active service, the relationship between reservists and the CAF is reciprocal and the reservist cannot be forced into anything he/she doesn't want to take on as a job, unlike regular force personnel.

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Re: Authority to attach/second Class-B Reservist
« Reply #19 on: February 21, 2018, 13:46:29 »
Well, that doesn't seem to be how it actually works.

Every year personnel at my unit (Class-B reservists) end up getting tasked by NAVRESHQ to go instruct in Borden (Supply and HRA/FSA courses) or Valcartier (BMNQ/BMOQ, even after our CO has protested and submitted impact statements declaring the members RED.

We lost our one of our full time officers this way last year. They had less than a year left in their 3yr contract, so they were preparing to transition to a civilian career, and had numerous interviews and tests to complete (police) over the course of the summer. Despite the the objections of our CO, HQ the member to go away to teach for the entire summer. Their only recourse was to pull their contract.
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Re: Authority to attach/second Class-B Reservist
« Reply #20 on: February 21, 2018, 15:32:27 »
As a rule, most SOUs include in the work description "Other duties as required"which is a broad catch-all that enables the CoC to do just about anything.

However, my understanding is that JAG lawyers are quite obstinate that a class B MOU is not a contract.  The CAF has terms of service (through legislation and regulation) which are what bind a CAF member, not the MOU.

When I was doing the Class B or B(A) thing...the MOU wasn't the 'contract', it was an agreement between myself and the unit about my terms of Cl B employment.  I still got a Route Letter annually, which is sort of the 'contract' for Cl B.

Simple solution;  don't attach post anyone who is CL B.  Simply send them on TD.  If they don't want to go, great they can submit the 30 days...and 30 days later their TD can end.  Likewise, if you give them notice 90 days in advance and they say no, the MOU also gives the employing unit the authority to give THEM 30 days notice that their Cl B is terminated.
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Offline Oldgateboatdriver

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Re: Authority to attach/second Class-B Reservist
« Reply #21 on: February 21, 2018, 16:04:47 »
Doesn't really solve the "problem" here, EITS.

The issue is: here's a reservist working full time at a unit under a class B contract. The unit's CO doesn't want to lose that person, while a higher HQ want to employ the person in a job that has nothing to do with the unit currently employing the person.

TD authority for someone is the actual unit CO, not the higher HQ, and really, the higher HQ cannot order the unit CO to send one of his specific member out on TD. So, if you  are relying on TD as opposed to Attach Posting, then, the unit's CO problem is solved: he just won't send the person out, while the higher HQ is still stuck if they have no attach posting authority.
 

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Re: Authority to attach/second Class-B Reservist
« Reply #22 on: February 21, 2018, 16:19:17 »
So the question then, in a way, is 'does a Res establishment HHQ have the authority to task sub-unit Class B pers on the summer tasking brick/CFTPO'.

I can't say whether there is a 'black and white authority' that I've seen, however my time at a CBGHQ...all Cl B, B(A) and RSS pers were subject to TD taskings (instructor, etc) and each year when the tasking brick came out, there was much 'ducking and covering' happening and lots of people were friendly to the G3 IT folks.   ;D  Oddly enough, it never seemed that many of the HQ pers went while some Bde units were gutted from Jun-Aug. 


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Offline CountDC

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Re: Authority to attach/second Class-B Reservist
« Reply #23 on: March 02, 2018, 13:24:06 »
interesting and funny what happens in reality compared to policy.  MOU/SOUs are not contracts yet more and more people are referring to contracts.  Never saw anyone attach posted while on class b, always sent TD.

We have the opposite problem here - the unit wants to task everyone out but the higher HQ wants them kept here.

"When the power of love, overcomes the love of power....the world will know peace" - Jimi Hendrix [1942-1970]