AH - 178

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the “Company”)

AND

CANADIAN PACIFIC POLICE ASSOCIATION

(the “Union”)

IN THE MATTER OF THE GRIEVANCES OF D. DERAICHE, R. LEFEBVRE AND R. LAROCHE.

SOLE ARBITRATOR:                     J.F.W. Weatherill

There appeared on behalf of the company:

                                D.W. Flicker

                                M.M. Yorston

And on behalf of the union:

                                R.M. Skelly

A hearing in this matter was held at Montreal, Quebec, on the 8^th day of September, 1981.

AWARD

                The Joint Statements of Fact and Issue in this matter are as follows:

STATEMENT OF FACT

Constables Deraiche and Lefebvre worked January 13, 14, 15, 16, 17, 18 and 19, 1981, and Constable Laroche worked January 15, 16, 17, 18, 19, 20, 21 and 22, 1981.  A normal tour of duty for a Constable is 8 hours, which these constables worked on all dates in question, which resulted in Constables Deraiche and Lefebvre working 56 straight time hours consecutively and Constable Laroche 64 consecutive straight time hours.

Section 7.02 of the Collective Agreement provides that, except as otherwise provided, work in excess of 40 straight time hours shall be considered as overtime and paid for at the rate of time and one half.  The Constables claim overtime at the rate of time and one half for all hours worked on the dates of January 18 and 19 in the case of Constables Deraiche and Lefebvre and January 20, 21 and 22 in the case of Constable Laroche.

STATEMENT OF ISSUE

The Union and the grievors claim that pursuant to Section 7.02, overtime is payable after any 40 consecutive straight time hours worked unless an averaging system has been authorized.

The Company claims that in the instant case, overtime is not payable as the employees did not work in excess of 40 hours in a calendar week.

The issue, it may be noted at once, is not really whether or not overtime is payable after “40 consecutive straight time hours”.  Overtime is payable for time worked on any day in excess of eight hours (article 7.01) and “in excess of forty straight-time hours” (article 7.02).  The real issue is as to the effect of this latter provision,  the grievors did not work more than eight hours in any one day, and despite what is set out in the joint statement, they did not work more than eight hours “consecutively”.  They did, however, work for eight hours each on more than five consecutive days: that is the sense in which the word “consecutive” is used in the joint statement

                The issue, therefore, is really whether work performed on the sixth and seventh consecutive day (in the case of constable Deraiche and Lefebvre), and on the sixth, seventh and eight consecutive days (in the case of Constable Laroche), is to be paid for at overtime rates.

                Articles 7.01 and 7.02 of the collective agreement would appear to provide for “daily” and weekly” overtime.  Article 7.01 is really quite explicit in this regard (it provides for overtime for “time period…on any day in excess of eight hours”), whereas article 7.02 does not set out the period within which overtime is to be calculated.  Read in a very “literal” (and incorrect) way, article 7.02 could be taken as providing that once an employee has worked for the company for forty hours at straight time, he shall thereafter be paid for any time worked at overtime rates.  When that provision is read in the context of article 7, and of the agreement as a whole, it is of course clear that that is not its effect, nor was any such suggestion made.

Article 7.02 is as follows:

Except as otherwise provided work in excess of forty straight-time shall be considered as overtime and paid for at the rate of time and one-half.

                I think it is clear from other references in the collective agreement that the period contemplated by article 7.02 as the basis for the measurement of straight-time and overtime work is the work week, which means five days of eight hours’ work (article 6.01).  Duty rosters, setting out work assignments, are made in respect of two-week periods (article 6.05), and these assignments are to be made, generally, by way of rotating shifts (article 6.08).  That was done in the grievors’ cases.  To take the case of constable Deraiche as an example (the other cases are analogous), starting at 0001 hours on Sunday, January 11, he had Sunday and Monday as rest days, and then worked on Tuesday, Wednesday, Thursday, Friday and Saturday.  On the following week, he worked on Sunday and Monday (thus working seven days consecutively), had Tuesday and Wednesday at rest days, and then worked on Thursday, Friday and Saturday.  Was Constable Deraiche entitled to overtime rates in respect of his work on the Sunday and Monday of the second week, being his sixth and seventh consecutive working days?

                It may be noted that the grievor’s schedule met the requirements of article 8 of the collective agreement, which requires that employees have two rest days (consecutive as far as possible - and they were consecutive in this case), during each calendar week.  Thus, the grievor did not work more than five consecutive days in any calendar week, and did not work more than forty hours in any calendar week.  He did, however, work more than five consecutive days during the schedule period, and so worked more than forty hours in a period of consecutive days during that time.

                Article 7.03 of the collective agreement is as follows:

In the application of Article 7.01 and 7.02 punitive overtime rates will not be paid where an employee moves from one assignment to another through the exercise of seniority or in instances of shift rotation pursuant to Article 6.08 or for the purpose of an employee’s changing shifts when working in relief service, as provided for in Article 6.10, or when an employee moves from a laid-off list.

                The work involved in the instant case was in the course of a rotating shift schedule and was, in my view, an instance of shift rotation within the meaning of article 7.03.  thus, the “punitive overtime rates” provided for in article 7.02 are not payable.  In any event, however, it is my view that the computation of hours contemplated by article 7.02 is to be made in respect of the calendar week.  In the instant case, the grievor (and the same is true in all the cases before me), did not work more than forty hours in any calendar week.

                For the foregoing reasons the grievances are dismissed.

DATED AT TORONTO, this 15^th day of September, 1981.