BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: J. F. W. Weatherill

W. A. McLeish

J. W. Asprey

L. Biniaris

A hearing in this matter was held at Ottawa on November 4, 1981.

The Dispute and Joint Statement of Issue in this matter are as follows:

Grievors Campbell and Roy had rest days Thursday and Friday. Christmas Day, 1980, and New Year’s Day 1981, fell on a Thursday. As a result, for those employees, the holidays were moved to the normal working days immediately following the employees’ rest days, that is December 27, 1980, and January 3, 1981.

Grievor Underwood had Friday and Saturday rest days. He worked on January 1, and since January 2 was a rest day, his holiday was moved to January 4. These changes were all pursuant to Rule 46.2(i) of the collective agreement.

The grievors were, in general, qualified for and entitled to holiday pay in respect of these "compensating days off". They were, however, notified by the company that they were required to work on those days. They did not report for work. The company therefore did not pay them holiday pay. The issue is whether or not this was proper, under the collective agreement.

Rule 46.4 of the collective agreement is as follows:

While the grievors met the requirements of clauses (a) and (c) of this article, it would appear that they were not "available for duty" on the holiday. Although notified that they were required to work, they did not report. The case does not come within any of the exceptions set out in clause (b).

From this, it would appear that the grievors did not meet all of the qualifications for holiday pay. The union relies, however, on Rule 46.10 of the collective agreement, which is as follows:

It is argued that the requirement that the grievors work on the days in question was improper, in that it was not "absolutely essential to the continuous operation of the Railways". From the material before me, it is my conclusion that that is correct. While it is certainly a managerial responsibility to determine what work is to be done, and to schedule work, the collective agreement places certain limitations on the exercise of these responsibilities. The scheduling of work, and certainly its assignment to particular individuals, is limited by seniority provisions, for example. Rule 46.10 is a somewhat unusual, and a quite strongly worded restriction on the right to schedule work in certain cases, namely on holidays. The obvious purpose of the provision is to ensure, so far as is possible, that employees be able to enjoy the holidays provided for under the collective agreement. In this connection, it is to be noted that the grievors, pursuant to their schedules, did work on the actual holidays themselves. For the grievors , their holidays had been replaced by "compensating days off" (which were equally "holidays" for the purposes of Rule 46.10).

While the company did indeed have good reason to schedule work on the days in question – and for those for whom they were not holidays no objection could be taken to that – the material before me does not establish that the grievors’ work was "absolutely essential to the continuous operation of the Railways". That language is clear, and it is far-reaching. A part or a function is, in general, "essential" to an undertaking, like fuel to an engine, where it will not operate without it. Something is "absolutely essential" where its importance is such that its absence causes a break-down of the operation. Here, the "operation" is "the continuous operation of the Railways" (rather a large undertaking), and the effect of Rule 46.10 in the instant case was to protect the grievors’ holidays unless it could be shown that their work was absolutely essential to the continuous operation of the Railway. Their work, it appears, was in the shop on what the union describes as "dead work", that is, work other than on locomotives immediately scheduled to leave. Of course, work such as the grievors’ is of importance, and indeed "essential" to efficient operation in the long term. But I think it cannot properly be said that the grievors’ presence and work on the days in question was absolutely essential to the continuous operation of the Railways.

It is my conclusion that the requirement of working on the days in question was not a proper one, and that the company may not properly raise it in order to deny to the grievors the holidays with pay to which they are otherwise entitled. It may be noted, however, that even where an instruction may appear to be contrary to the collective agreement, it is an employee’s duty to obey it, unless it is unsafe or illegal. In the instant case the grievors ought to have performed required work and ought to have sought redress for the loss of their holiday through the grievance procedure. It may be that they were subject to discipline in the circumstances of this case. That is, however, a separate matter. The issue before me is simply that of entitlement to holiday pay, and for the reasons I have given, their claims in that respect must succeed.

For the foregoing reasons, the grievances are allowed.

DATED AT TORONTO, this 24th day of November, 1981.