AH - 179

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the “Company”)

AND

CANADIAN PACIFIC POLICE ASSOCIATION

(the “Union”)

IN THE MATTER OF THE GRIEVANCE OF L. BARCK

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

Constable L. Barck completed a normal shift at 2400 hours September 9, 1980, and was assigned to be on rest days September 10 and September 11, 1980.

Constable Barck, however, returned to work at 2200 hours on September 11, 1980

Section 8.01 of the Collective Agreement provides that employees will be allowed two days off.

Constable Barck claims overtime at a rate of time and one-half from 2200 to 2400 hours on September 11, 1980.

STATEMENT OF ISSUE

The Company claims that Article 8.01 does not define a rest day as twenty-four hours and as Constable Barck did not work in excess of 8 hours on September 11, 1981, he is not entitled to the overtime as claimed.

The union and the grievor claim that pursuant to Section 8.01 of the Collective Agreement and the Canada Labour Code, overtime is payable due to the fact that the Constable did not have two complete rest days but only 46 hours off duty.

                Article 6.08 of the collective agreement requires the company to establish a system of rotating shifts and rest days, where that is practicable.  Such a system had been established in this case, and duty rosters were posted in accordance with article 6.05, which is as follows:

6.05        Except as otherwise provided in Article 6.04 duty rosters covering two-week periods will be posted and will show employees’ tours of duty or reporting locations, starting times and rest days, except for those employees whose tours of duty are designated as relief, in which case only the rest days will be shown.  Where starting times are shown on the duty roster, they shall be the same for each regular work day between an employee’s rest days, except that this will not apply to relief positions, nor will it apply when the duty roster must be adjusted die to additions or deletions of staff.  Duty rosters will commence at 0001 hours on Sunday up to and including 2359 hours on the second Saturday thereafter and will be posted forty-eight hours in advance of the commencement of the two-week period.  Upon request, district Representative will be supplied with a copy of duty rosters posted in their respective Districts.

                Article 6.04 is not material to this case.  The duty roster for the week in question showed the grievor as assigned to “relief as required”.  There were, in accordance with article 6.04, no reporting times set out.  Rather the grievor’s schedule for the week in question quite properly shows “R” (for “relief”) on September 7, 8, and 9 and again on September 12 and 13.  For September 10 and 11 the roster shows “D O” (for “day off”) for the grievor.

                On September 9, 1981, the grievor worked from 1600 to 2400 hours.  He was then shown as having two days off, being assigned another relief shift on September 12.  In fact, however, the shift to which he was assigned began at 2200 hours to 2400 hours worked on September 11 was overtime, and the grievor seeks payment for that time on that basis.

                The matter of overtime is dealt with in article 7 of the collective agreement.  Time worked in excess of eight hours “on any day” (clearly, “day” means “calendar day” in that context”, or “in excess of forty straight-time hours” (which, in the context of the whole agreement, would appear to refer to work in excess of forty hours in a week), is to be paid for at the rate of time and one half: article 7.01 and 7.02.  in the instant case, the grievor did not work more than eight hours in any day, nor more than forty hours in any week.  The question is, however, whether or not he worked on a rest day, or day off.

                The matter of rest days is dealt with in article 8 of the collective agreement, which is as follows:

ARTICLE 8

BEST DAYS

8.01        Employees shall be assigned two rest days during each calendar week.  Such rest days shall be consecutive as far as possible and shall not be split except where it is necessary to meet the Company’s operational requirements and that otherwise working an employee at overtime rates would be involved.

8.02        Employees, if required to work on regularly assigned rest days, shall be paid at the rate of time and one-half on the actual minute basis with a minimum of three hours at time and one-half for which three hours ‘service may be required.

                It is the company’s contention that a “rest day” is analogous to a “work day”, and should be considered as a period of eight hours “during which one would have worked but is resting”.  Such a view might appear to be supported by the language of article 6.08 of the collective agreement, which calls for a system of “rotating shifts” and “assigned rest days”, thus perhaps suggesting that “shift” and “day” in that context were equivalent.  It is clear to me , however, that the term “day”, in certain contexts, should not be confused with the expression “work day”.  Thus, in article 6.01 a “day’s work” (or a “work day”) is a period of eight consecutive hours’ service.  Where there are split shifts, the “work day” would consist of service performed within a period of twelve hours: article 6.02.  That a “day” may mean something more than the regular “work day” is clear form article 7.01 which deals with time worked “on nay day” in excess of twelve hours.  The reference in that case is, quite plainly, to a calendar day.

                If by “rest day” the collective agreement were taken to refer simply to a period of eight hours - the equivalent of a “shifty” - that would be plainly contradictory of the scheduling contemplated by article 6.05, which is expressly based on the calendar week, that is, the period of seven days commencing at 0001 hours on a Sunday.

                Whether or not, in the context of a rotating shift schedule, a “rest day” must be taken to be a “calendar day”, it must, under this collective agreement, be taken to be at least “a period of twenty-four hours”.  In the instant case, the grievor was scheduled to have two consecutive rest days following the end shift on September 9, 1980.  That shift ended at 2400 hours on that day, so that in the instant case the rest days to which the grievor was entitled were in fact the calendar days of September 10 and 11.  Since the grievor was required to work for two hours on one of his rest days.  That the grievor is entitled to payment at time and one-half for those two hours is clear from article 8, set out above.

                While “daily” or “weekly” overtime is not payable where hours in excess of eight in a day or forty in a week are worked as a result of an employee changing assignments “in instances of shift rotation” (article 7.03), that exception does not apply in the case of hours worked on a rest day.  In the instant case, the grievor did in fact work on a rest day (whether that be defined in terms of the calendar day or simply in terms of a twenty-four hour period), and he was entitled, by virtue of article 8 of the collective agreement, to payment at time and one-half for the time so worked.

                For all of the foregoing reasons, the grievance is allowed.

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