IN THE MATTER OF AN ARBITRATION
BETWEEN
CANADIAN PACIFIC RAILWAY COMPANY
(the "Company")
AND
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
SYSTEM COUNCIL 11
(the "Union")
RE GENERAL HOLIDAY PAY GRIEVANCE
Sole Arbitrator: Michel G, Picher
Appearing For The Brotherhood:
D. Wray – Counsel, Toronto
J. Platt – International Representative, Ottawa
K. W. Kearns – System General Chairman, Boston Bar
L. Couture – System General Chairman & Secretary/Treasurer, Beloeil
Appearing For The Company:
R. Hempel – Labour Relations Officer, Calgary
E. MacIsaac – Manager, Labour Relations, Calgary
S. Samosinski – Direcotor, Labour Relations, Calgary
A hearing in this matter was held in Toronto on Monday, July 9, 2001.
AWARD
The substance of this grievance is concisely stated in the Brotherhood’s ex parte statement of issue which reads as follows:
The Union grieves that the Company’s payment of eight (8) hours pay rather than ten (10) hours pay as holiday pay for employees regularly scheduled to work a ten (10) hour day contravenes the collective agreement and the Canada Labour Code.
The background facts to the grievance are not in substantial dispute. The collective agreement contemplates, as a general rule, that employees are to work eight hour days. There is, however, provision for the agreement of employees, with the approval of management, to opt to work longer days, for the purpose of completing a forty hour work week in fewer days, thereby allowing greater time for travel back to the employees’ homes on weekends. That is reflected in the following provisions of article 2 of the collective agreement.
2.1 Eight consecutive hours, exclusive of meal period, will constitute a day’s work. Where mutually agreed between representatives of the Railway and the employees, the meal period may be extended beyond one hour.
NOTE: The following applies to the employees on the ST. L&H: Where mutually agreed between the Company and the System General Chairman, greater than eight consecutive hours may constitute a day’s work.
2.11 Employees in S&C crews in order to get home for weekends and the men in the crew being agreeable may, upon request to the S&C Forman and with the approval of the S&C Supervisor, work in excess of eight hours per day at the pro rata rate. Forty hours worked will constitute one week. Any time worked over forty hours in any one week shall be considered as overtime. Where weekly trips cannot be arranged due to the crew working a long distance from their homes and arrangements are made for the crew to go home the second week, any time worked after the first forty-hour week will be considered as another work week and no overtime will be allowed until another forty hours have been worked.
The Brotherhood relies similarly on the provisions of the Canada Labour Code, including both those provisions which grant an arbitrator the jurisdiction to apply and give relief in accordance with the provisions of a statute, and the substantive terms of the Code governing holiday pay. The following sections are pertinent:
60(1) An arbitrator or arbitration board has
…
(a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement.
168 This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits or an employee under any lay, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.
196 An employee whose wages are calculated on a daily or hourly basis shall, for a general holiday on which the employee does not work, be paid at least the equivalent of the wages the employee would have earned at his regular rate of wages for his normal hours of work.
While the parties addressed the Arbitrator to certain provisions of the collective agreement, as well as to at least one specific agreement negotiated whereby employees normally scheduled to work on a four and three basis, which is to say four ten hour days followed by three days off in a given week, were agreed to be entitled to the payment of ten hours pay for a holiday, I do not consider it necessary to examine that evidence in detail, given my view of the effect of the statute in the case at hand. The Company, understandably in my view, places emphasis upon the fact that a substantial number of years it has followed a practice of paying eight hours of holiday pay to employees working on a four-three rotation, with the adjustment that employees are required to work eleven hours on two of the four days in question, to justify a total of forty hours of wages. However, neither the practice nor the intention of the parties can have any bearing on the absolute application of statutory rights and obligations. To put it simply, it is not open to the parties to contract out of the provisions of section 196 of the Canada Labour Code.
As is evident from the language of that provision, at issue in any given case is whether an employee has received his or her “regular rate of wages for his or her normal hours of work” within the meaning of section 196 of the Code.
The Company has placed before the Arbitrator certain pay records tending to indicate that crews that have opted to work the four-three rotation may often, due to circumstances in the field, work days which are longer or shorter than ten hours. However, the preponderance of the evidence, as reflected in correspondence between the parties, confirms that as a general matter employees who work on a four and three rotation are considered to be working four ten hour days as a normal basis of scheduling. While it is true that the forty hour work week contemplated within article 2.11 of the collective agreement could be made up otherwise, for example by two twelve hour days followed by a sixteen hour day, the evidence before the Arbitrator tends to confirm that on a four-three rotation ten hour days are contemplated to be the norm. In my view that is specifically reflected in a letter sent by the Company’s General Manager, Operations to the Brotherhood’s System General Chairman on August 31, 1999, which reads, in part:
If I understand your letter correctly, you contend that the current practice of working four consecutive 10 hour shifts with 3 days off violates the Canada Labour Code with respect to holiday pay when not required to work.
It is not disputed that certain employees enjoy the benefits of working under a 4/3 arrangement. As you know, the 4/3 work week has been a long standing practice utilized since the mid 1970s when the current language of Article 2.11 was entered into the Collective Agreement. The practice of a 4/3 work week generates a need to work an additional 2 hours, on a week that contained a statutory holiday, to ensure a 40 hour work week. Traditionally, employees have worked these 2 hours at straight time rates through a mutual agreement. While some work days for these employees may be 11 hours, others may only be 9, providing the work week is 40 hours. Once more, this is a practice that has remained unchanged since the mid 1970s and through may rounds of collective bargaining, until now. The understanding behind the 4 day work week is simply that, an understanding, enabled by Article 2.11, and 24 years of past practice.
Administratively, all other practices have been, and currently are, governed by a five day work week consisting of eight hour days which are set out in Article 2.1, Article 17, and Article 18.6 of the Collective Agreement.
If the Company’s position were taken to its logical conclusion, employees who might work different hours on each day could arguably not point to any “normal hours of work” within the meaning of section 196 of the Code. Needless to say, any tribunal should avoid a conclusion which would be so extremely at odds with the contemplation of a statute. In any event it is unnecessary to consider that difficulty in the case at hand, as the letter quoted above, read in conjunction with the payroll records tendered in evidence, does tend to confirm that while there are exceptions, ten hour work days are the most common formula for employees working on the four-three rotation.
Nor can the Arbitrator sustain the suggestion, reflected in a letter from the Company’s Manager S&C Services that the issue is resolved by the language of article 18.6 of the collective agreement, which effectively states that employees are entitled to be paid eight hours paid at straight time rates for their regular assignment when they are not required to work on a general holiday. There is no compelling reason to believe that the rights and obligations of the Code contemplate payment based on hours as described on paper in a collective agreement, where those hours differ dramatically from the hours actually worked in field. That provision, which the Company has purported to apply to employees on ten hour shifts, cannot override the mandatory requirements of the Canada Labour Code.
As further evidence of the currency of ten hour shifts being the norm, reference may be had to a letter of December 8, 1999 addressed to the Brotherhood’s System General Chairman by Mr. D.W. Cassel, Manager of S&C Services. In that letter the manager describes to his union counterpart the workings of a schedule for S&C construction employees to be on an eight and six rotation, whereby, in his words: “These employees will be working eight-ten hour shifts with six days off.” As with any construction endeavours, it is not unreasonable to expect that certain of those ten hour days might be reduced by inclement weather, and others might be extended beyond the ten hours by reason of the need to complete certain segments of work, the impact of delays or unforeseen emergencies. Nevertheless, for the purposes of determining the obligations of the Company and the entitlements of the employees under section 196 of the Canada Labour Code in respect of holiday pay, it is the “normal” hours of work which must govern.
In light of these considerations the Arbitrator is satisfied that the grievance must be allowed, to the extent that it applies to any employee who is assigned to a four-three or an eight-six rotation, where the “normal” hours of work will involve ten hour days, notwithstanding incidental exceptions. Given the uncertainty which has attached to this issue, in light of the substantial past practice alluded to by the Company, I do not consider that this is an appropriate to make an award in respect of interest, as requested by the Brotherhood.
The Arbitrator therefore declares that the Company has violated the provisions of the Canada Labour Code by failing to pay to employees scheduled on four-three and eight-six rotations ten hours’ pay in respect of statutory holidays. The Arbitrator directs that, from the date of the grievance, employees be compensated for the difference in statutory pay to which they are entitled, and retains jurisdiction in the event of any dispute between the parties concerning the calculation of compensation, or any other aspect of the interpretation or implementation of this award.
Dated at Toronto, this 16th day of July 2001
_________________________________________
MICHEL G. PICHER
ARBITRATOR