AH – 65A
IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY COMPANY
BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES
IN THE MATTER OF A
GRIEVANCE OF RELATING TO OVERTIME CLAIMS
FOR ATTENDANCE AT RULE CLASSES AND EXAMINATIONS
SOLE ARBITRATOR: J. F. W. Weatherill
There appeared on behalf of the Company, among others:
C. E. Moore
And on behalf of the Union, among others:
R. J. Cranch
A hearing in this matter was held at Montreal on July 14, 1971.
This grievance arises out of the Company’s rejection of overtime claims made by a number of train dispatchers of the Farnham Division, for payment in respect of time spent by them in attendance at rules classes and rules examinations.
The Union’s claim is based on the provision of the collective agreement relating to hours of service, which provide, inter alia, for premium payments for work outside of regular assigned hours. The Company contends that the collective agreement does not provide for payment to dispatchers for attendance at rules classes or rules examinations.
Certainly the collective agreement makes no explicit references to payment for attendance at rules classes or rules examinations. Explicit reference to particular things which employees may be asked to do, however, is not a necessary prerequisite to their being paid to do them. The substantial question is simply whether, in attending the rule classes and examinations in question, the employees concerned were “at work” in accordance with the instructions of the employer. If so, they will be entitled to payment, at regular or premium rates, depending on the circumstances.
It seems that in circumstances such as these in the past, employees have not been considered to be at work, and have not claimed or been paid for time spent at rules classes or examinations. The passing of a rules test is required by the Board of Transport Commissioners, and in the past it seems that employees have simply been advised of the availability of classes which they might attend if they wished. In the instant case,` however, it is the essence of the Union’s case that the employees were required to attend such classes, and that they must be considered to have been at work at such times. This argument is supported by the terms of the notice which set out the dates and times of the classes. After setting those out, the notice read:
All Dispatchers must attend three instruction classes prior to re-examination of rules, which will be on Friday, January 29.
Despite the mandatory language of this notice, it was the Company’s position that the employees did not in fact regard it as an instruction, since some of them did not in fact attend three classes, and yet were not called in for investigation. On the other hand, it was stated at the hearing by one of the employees that he had made enquiries of the Chief Dispatcher, and had been advised that the wording of the notice was no mistake. In my view, on this occasion the employees properly considered that they being required by the employer to spend time on a matter which, while not part of their everyday duties, clearly related to their work, and fell within the course of their employment.
It was argued by the Company that payment for time spent in such classes would constitute a “fringe benefit”, for which express provision would have to be made in the collective agreement. If, however, time so spent is properly considered as time worked (as I hold it is in the circumstances of this case), then payment for such time could scarcely be regarded as a fringe benefit, but as one of the central obligations arising under the collective agreement. The fact that at recent negotiations the Union sought unsuccessfully the addition to the agreement of a provision relating to payment for “medical, eye and rule examinations” does not constitute an acknowledgement that there would be no right to payment in cases such as this, where attendance is required in a matter of this sort.
The Company referred to CROA Case No. 220, in which a claim for overtime payment, where an employee was called to report for a disciplinary investigation, was dismissed. There, the employee was called for an investigation to which he was entitled, under detailed provisions of the collective agreement. He was not called in to perform work. One closely analogous to the instant case is CROA Case No. 122, in which it was held that an employee, instructed to take a driver’s test in connection with a job posting application, was entitled to be paid in respect of the time involved.
For the foregoing reasons, and having regard to the circumstances, including in particular that the employees were directed to attend, it is my conclusion that the grievance must succeed. It is my award that the employees concerned be paid, at the appropriate rates, including premium rates where applicable, for the time spent pursuant to such direction.
DATED AT TORONTO, this 28th day of July 1971.
(signed) J. F. W. WEATHERILL
Mr. J.F.W. Weatherill
Arbitration Services Limited
Suite 214, 68 Yonge Street
Toronto, 215, Ontario
This is in connection with your arbitration award, dated July 28, 1971, with regard to overtime claims in favour of Train Dispatchers at Sherbrooke, Quebec, for attendance at Rules Classes and Rules Examinations.
The question has been raised as to whether your award granted payment for attendance at both the classes and the exams or just for attendance at the classes.
It is the Union’s contention that time spent in attendance at the exams should also be paid since the award did not make any specific reference to having the exams excluded. Furthermore, the Joint Statement of Fact included overtime claims for both attendance at classes and examinations.
It is the Company’s contention that the essence of the award is that only those activities that the Dispatchers were directed to attend by the Company should be paid. Since the bulletin issued by the Company is in this regard required only attendance at the classes, it is the Company’s position that only the time spent at the classes should be paid for.
An interpretation of the intent of your award would be appreciated.
FOR THE COMPANY FOR THE UNION
(sgd.) E.L. GUERTIN (sgd.) R. J. CRANCH
GENERAL MANAGER, O&M SYSTEM GENERAL CHAIRMAN
This has reference to your joint letter to me in this matter, dated June 30, 1972. Pursuant to your joint request, I am prepared to set out an interpretation of the intent of the award issued in this matter.
It is true that the award, like the submissions presented by the parties, dealt primarily with the question of attendance at rules classes. The mandatory nature of attendance at such classes appears from the bulletin issued with respect to them and was stressed in the award. The bulletin also set the date for the examination itself, but did not specify explicitly that such examinations were mandatory. The Company is required, under regulations issued by the Transport Commissioners to conduct the examination and employees who fail to pass must not be permitted to work in the occupations in question. While it may be said that the requirement is ultimately that of the Transport Commissioners, it is my view that it is also the case that he Company, in order to carry on its business, does in effect, require employees to undergo and to pass the examinations referred to .
The claim made in the matter before me was for payment for attendance at the examination, as well as for attendance at the rules classes, and it was my intention in the award to allow the grievance and to award payment for the time claimed including the time spent in the examinations.
I trust that the foregoing is responsive to your request.
DATED AT TORONTO, this 17th day of July 1972
(signed) J. F. W. WEATHERILL