AH - 193

 

 

 

IN THE MATTER OF AN ARBITRATION

 

 

BETWEEN:

 

 

CANADIAN PACIFIC RAILWAY COMPANY

 

(the “Company”)

 

 

AND

 

 

TRANSPORTATION - COMMUNICATION DIVISION, BROTHERHOOD OF RAILWAY AND AIRLINE CLERKS

 

(the “Union”)

 

IN THE MATTER OF A GRIEVANCE RELATING TO OVERTIME CLAIMS FOR ATTENDANCE AT RULE CLASSES AND EXAMINATIONS.

 

 

 

 

SOLE ARBITRATOR:     J.F.W. Weatherill

 

 

 

A hearing was held in this matter at Montreal on July 14, 1971.

 

 

 

 

 

R.J. Cranch and others for the Union

C.E. Moore and others for the Company

 

 

 

 

 

AWARD

 

                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 classed and rules examinations.

 

                The union’s claims 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 payments to dispatchers for attendance at rules classes or rules examinations.

 

                Certainly the collective agreement makes no explicit reference 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 for doing them.  The substantial question is simply whether, in attending the rules 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 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 inquiries 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 were 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 fall 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 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 acknowledgment 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 Canadian Railway Office of Arbitration 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 Case No. 122, in which it was held that an employee, instructed to take a driver’s test in connection 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 by 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.

 

 

 

J. F W. Weatherill

Arbitrator