SHP - 9
IN THE MATTER OF A REFERENCE UNDER THE JOB SECURITY AGREEMENT BINDING ON
RAILWAY EMPLOYEES’ DEPARTMENT, DIVISION NO. 4
RE:DISPUTE RELATING TO THE APPLICATION OF LAY OFF BENEFIT PROVISIONS
SOLE REFEREE: J. F. W. Weatherill
APPEARING FOR THE UNION:
J. H. Clarke
APPEARING FOR THE COMPANY:
J. M. McGuire
A hearing in this matter was held in Montreal on October 13, 1972.
AWARD OF THE referee
In this case the Union alleges that the Company improperly posted a notice relating to payment of lay-off benefits to certain employees and that it improperly gave effect to the provisions of that notice. The Union seeks a declaration that the notice is void and a direction of payment to the employees affected.
The matter involves the entitlement to lay-off benefits of certain wharf freight handlers. These employees had qualified for and had been in receipt of lay-off benefits pursuant to the job security agreement. It came to the Company’s attention that certain employees were continuing to receive such benefits even though on the Company’s construction of the agreement, they were no longer entitled to such. As a result, the Company issued the following instructions:
Effective immediately at Montreal Wharf and with the beginning of the seasonal working period at West Saint John, December 1, 1971, any freight handler who is in receipt of lay-off benefits under the Job Security Agreement will cease to have lay-off status on the first day that he is recalled to work and his benefits will cease. This means that he will not receive benefits for the claim week in which he is recalled to work. In order to again secure lay-off benefits he must again requalify under the eligibility requirements of the Job Security.
It was contended for the Union that the Company had in some way usurped the functions of the administrative committee in issuing this notice. I am unable to agree with this contention. Of course, neither of the parties may unilaterally modify the provisions of the job security agreement. The notice which was issued by the Company could not modify the provisions of the agreement nor does it purport to do so, it simply sets out the Company’s position as to entitlement to benefits in certain conditions. The question whether or not any claim is proper is a question which can only be determined in the final analysis by the administrative committee (or, in the event the committee is unable to determine the matter, by a referee). The Company direction to its officers as to its interpretation of the agreement sets out only its own position just as, analogously, a claim by an employee sets out his position that he is entitled to certain benefits. A claim does not modify the agreement, neither does the statement of the Company’s position.
The issue before me is one of interpretation of the agreement and it is, in particular, whether the position set out in the Company’s notice is a correct interpretation of the provisions of the job security agreement. The matter of lay-off benefits is dealt with in article V of the agreement. There is no doubt that the employees concerned in this case were eligible employees who were entitled to certain weekly lay-off benefits pursuant to the provisions or article V. What is in issue in this case is the qualification of entitlement to weekly lay-off benefit payments set out in section 5 of article V. That section provides as follows:
5. No weekly lay-off benefit will be made for parts of a claim week as defined in Clause 1 of Appendix "B", except that an employee who has qualified for weekly lay-off benefits in accordance with Clause 1 of Appendix "B" will not have weekly benefit payment reduced for any claim week during which he returned to the service temporarily for less than five working days.
It is the Company’s position that the notice which it posted simply gives effect to the provisions of section 5 of article V, in stating that an employee will not receive benefits for the claim week in which he is recalled to work. The Company simply gives effect to the provision in section 5, that "no weekly lay-off benefit will be made for parts of a claim week". This interpretation of section 5 is clearly correct. Where an employee, is recalled to work during a claim week then he does not receive benefits for that week because of the provision that no weekly lay-off benefit will be made for parts of a claim week. This is, however, subject to an exception in the case of employees who return to the service temporarily for less than 5 working days.
The employees concerned in this matter are, as has been noted, wharf freight handlers. Their regular employment is, it seems, on a daily call basis. Thus, even while they are not laid off, they may not in fact work on any particular day. They are not laid off on such days and are not entitled to lay-off benefits. When they are laid off, however, they do not await any call and are entitled to lay-off benefits.
When such employees are recalled, it is to the status they had prior to their lay-off. That is, to employment on a daily call basis. In such a case, the employee ceased to be on lay-off and his entitlement to lay-off benefits ceases regardless of the number of days on which he may actually work. By article V5 where an employee is recalled during a claim week, he receives no lay-off benefits in respect of that claim week because of the provision that no such benefits will be paid for parts of a claim week.
This situation may be contrasted with the situation which is referred to in the exception to article V, where an employee returns to the service "temporarily". In such a case even though an employee may work (provided the period of work is less than 5 working days), he is still considered to be on lay-off and is still entitled to lay-off benefits. The Company’s notice can properly refer only to the situation in which an employee is recalled. That is, removed from the status of being on lay-off and cannot properly refer to the situation in which an employee returns to the service temporarily.
A question may arise in any particular case as to whether an employee has "temporarily" returned to service or whether he has been recalled. In the instant case, the material before me refers to situations in which employees are recalled to their regular status as employees even though this may not involve their working every day. It is not the same thing as being called to work "temporarily". Accordingly, it has not been shown that the claims referred to are payable pursuant to the exception set out in article V5. The employees concerned were recalled to work and while they may not have actually had work during every day of the week, they are not entitled to lay-off benefits because, as section 5 makes clear, no weekly lay-off benefits will be paid for part of a claim week.
For the foregoing reasons, the claims must be refused.
DATED this 26th day of October, 1972.
(signed) J. F. W. Weatherill