AH – 54
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAYS TELECOMMUNICATIONS DEPARTMENT
COMMERCIAL TELEGRAPHERS’ UNION DIVISION 43
IN THE MATTER OF Rate of pay to apply to employees attending training courses on their normal rest days
ARBITRATION BOARD: Professor H. W. Arthurs - Chairman
Mr. M. J. O’Brien - Company Nominee
Mr. Drummond Wren - Union Nominee
There appeared on behalf of the Company:
J. W. Healy, Q.C. – Counsel
R. S. Finegan – Employee Relations Officer
W. A. Young – Labour Relations Officer
And on behalf of the Union:
Jeffrey Sack – Counsel
C. Hammett –
A. G. Ingram – General Secretary-Treasurer
A hearing in this matter was held at Toronto, Ontario on 16 September 1968.
This case poses the neat question of whether an employee attempting a training course on a rest day is entitled to be paid the premium rate associated with work on rest days, or merely his normal straight time or "pro rata" rate (terms which the parties agree are synonymous).
The factual background of the case is that several employees were told to report for a training course of several days’ duration, conducted by the Company on its premises, for the purpose of familiarizing them with new equipment which was to be operated by them in the course of performing their regular jobs.
The Company relies upon Article 5 of the Collective Agreement which provides :
… when for any reason changes in its operating methods or practices require additional knowledge and skill, the Company will provide the necessary facilities and instruction to enable such employees as are designated by the Company to become proficient in the operation of such methods or practices, and during the qualifying period such employees will be compensated at the pro rata rate of their regularly assigned positions …
As has been noted, the parties agree that the "pro rata" rate is the regular or straight time rate. The Company contends that this language clearly and unequivocally covers the facts, that only the pro rata rate is to be paid, and that no premium pay is contemplated.
The Union, on the other hand, points to the language of Article 12 :
Employees, if required to work on regularly assigned rest days … shall be paid at the rate of time and one-half for all time worked.
It is the Union’s contention that an employee on a training course is "required to work" during the time he is on that course because he has no alternative save to attend the course and accept the instruction for which he was told to report. The Union seeks to bolster its contention that Article 12 is to be the measure of the employee’s rights by pointing out that Article 5 itself does no more than specify the rate at which an employee is to be compensated. In this respect, Article 5 is to be contrasted with Article 12, which contains an affirmative entitlement to pay.
However, when closely considered, this argument cuts against the union position. In the first place, except for the provisions relating to premium pay for rest days (and certain other premium payments) Article 12 itself does not establish the Company’s obligation to pay at all. On the contrary, the Company’s basic commitment to pay wages of a certain amount for employees working in a particular classification must be found elsewhere in the agreement, presumably in its various appendices and schedules. Only after locating an employee in such schedules, can the further calculation demanded by Article 12 be made, and the amount of premium pay ascertained.
By contrast, Article 5 makes it clear that an employee engaged in a training course is not to be "paid" but rather "compensated". The amount of compensation is specified with some care as the employee’s "pro rata" rate. Had Article 5 intended that premium pay should also be available, it would have been a simple matter to omit the words "pro rata" so that an employee in training would simply receive "the rate of (his) regularly assigned position".
The Union contends further that Article 5 does not apply to employees who are engaged in training for purposes of performing the work of their own classification, as opposed to those who are seeking promotion, or to new employees preparing to perform their jobs for the first time. Support for this interpretation is said to be found in the language of the most recent agreement executed between the parties, which makes this distinction. Even assuming that the most recent agreement were applicable to the instant grievances, an issue which I find it unnecessary to decide, the Union’s argument cannot succeed. The very fact that it has been found necessary to change the agreement suggests that the connotation sought to be applied to the old agreement by the Union was not warranted.
Moreover, even the new wording of the training provisions of the agreement does not speak directly to the issues here presented. At best, the new language identifies the two types of training referred to by the union, but it does not refer specifically to the issue of premium pay for rest days. Indeed, if the new agreement accomplishes anything at all in relation to this case, it is to destroy the Union’s case by necessary implication. Article 12, Clause 9 of the new agreement provides :
Employees … who are selected for training, will, if required to travel from their headquarters to the training location, suffer no loss of wages while in transit. They will not be paid overtime for travel … on rest days …
As will be recorded below, the issue of payment for travel time en route to a training programme was a matter of considerable controversy between the parties, and raised many of the issues presented by the instant case. It is significant that although the parties ultimately agreed to resolve this issue generally in favour of the Union, they were nonetheless agreed that there should be no premium pay for travel on rest days. By analogy, it can reasonably be inferred that had the issue of compensation for actual training on rest days been explicitly raised in negotiations, it would have been similarly disposed of.
The Union also relies heavily on a series of decisions under U.S. labour standards legislation and regulations which are said to stand for the proposition that employees on training programmes are engaged in "compensable work". We are prepared to accept these cases as authority for the proposition advanced, but it must be remembered that both the language and the policy of the collective agreement differ from those of the U.S. statute. Where the statute extends its protection to all who perform work, in order to accomplish a public purpose of preventing exploitation, the "rest day" provision of both the old and new agreements confers premium pay only on those who are "required to work". Evidence adduced by the Union falls short of what would be necessary to convince us that employees were "required" to attend training courses. Moreover, there is much more reason to apply in the broadest possible terms a statute which is the sole guarantee of minimum standards for unorganized workers, than a collective agreement which is negotiated by a union whose members enjoy standards well above the minimum, gained through the exercise of their concerted power.
But any lingering doubts in the interpretation of the agreement are resolved in favour of the Company as a result of a decision on a closely analogous point by His Honour, Judge C. E. Bennett. This decision, in 1961, involved the same parties and the same contract language as the instant case, although the nature of the claims made by the grievors was somewhat different. In the 1961 case, two employees claimed to be paid for time spent, respectively, after regular working hours and on rest days, travelling to a training course. Judge Bennett held that neither was entitled to remuneration for travelling time, and that entitlement to pay in relation to training was to be found entirely in Article 5, the language referred to at the beginning of this award. In a careful analysis of the contract language, Judge Bennett concluded that employees were not required to accept training, were consequently not obliged to travel, and thus could not claim for time so spent - except as specifically agreed to in Article 5.
While the case advanced by the Union is not without its attractions, in the final analysis we have decided to defer to the principle expressed in the 1961 decision. We do so because the parties appear to have accepted it over a period of years as dispositive of the issues, and thus created a heightened expectation that the award had entered into, and become part of, their contractual relationship. Since we do not find the earlier decision to be clearly in error, we feel we should recognize this consideration. See Wickett & Craig Ltd., (1962) 13 LAC 363.
It is important to note that we were not tendered evidence which showed a practice supporting the Union’s position. The Union testimony in this regard went no further than the suggestion that the Union chairman had never heard of anyone having a problem about being paid time and one-half for training on rest days. On cross-examination this suggestion was rendered totally innocuous by the admission that neither had he heard of anyone being paid on the basis proposed by the Union.
In all the circumstances, then, we are driven to conclude that the Union has not made out its case, and that the grievance must be dismissed.
DATED AT Toronto, October 29th, 1968.
H. W. Arthurs M. J. O’Brien
Chairman Company Nominee
I have read the Chairman’s Award and my reasons for not concurring are set out in the following :
There are two Articles in the Agreement to be considered, Article 5 upon which the Company relies and Article 12 upon which the Union relies.
It is necessary to the efficient performance of the Company’s operations that there be a continuous system of employee training and clause 5 says the Company will provide the necessary facilities and instruction to designated employees to become proficient in the operations when changes in the operational methods require additional skill and knowledge. The clause provides further that those employees taking such instruction "will be compensated at the pro rata rate of their regularly assigned positions". It is agreed that the "pro rata" rate is the regular rate. In my view "compensation" is interchangeable with pay and it means such employees shall receive a rate corresponding in measure and commensurate with the rates paid their regular assignments. Article XI referring to retroactive payment of wage increases provides that conditions under which the employees will "be entitled to any amount of increased compensation that may be due them …". That is the negotiated increase in these wage rates.
It would appear to me it makes no difference whether an employee attending instruction facilities attend voluntarily or at the Company’s direction. While there he is under the direction of the Company . His time is at the disposal of the Company and for all intents and purposes all provisions of the Agreement apply.
The pro rata or regular rate is set out in agreed upon schedules. Such rates are for a specified number of hours, weekly and/or monthly. We must, therefore, turn to other agreement provisions to discover when and in what amounts, premiums are to apply. It is my view that Article 12 is complimentary to Article 5 and provides "Employees, if required to work on regularly assigned rest days .... shall be paid at a rate of time and one half for all time worked". It is my opinion that "time worked" is time under the direction of the Employer. In an employee-employer relationship I content "work" means to be employed and if an employee is employed and paid by an employer, the hours he is so employed connotes time worked.
I would uphold the grievance.
DATED AT Agincourt, October 27, 1968.
COMMENTARY: Three Equipment Technicians at Vancouver, B.C., the grievors, claimed that the Company was in violation of Article 11 and 12 of the collective agreement in denying them payment at punitive overtime rates (time and one-half) instead of pro rata straight time for time spent while attending training courses which included one or more of their normal rest days. The Company’s stand (and long-standing practice) was upheld by a majority award signed by the Chairman and the Company nominee.