(the "Company")

- and -

(the "Brotherhood")

SOLE ARBITRATOR: M. G. Picher

A hearing in this matter was held in North Bay, Ontario on September 22, 1989.

The Company maintains that M. St. Pierre was eligible to work overtime under the circumstances and that no violation of the agreement occurred. A settlement was not reached in the grievance procedure.

It is common ground, notwithstanding the date appearing in the joint statement of fact, that on August 17, 1988 train no. 622 was delayed on its trip from Moosonee to Cochrane because of a derailment. Because of the need to have the train cleaned for departure the following morning the Company’s supervisor decided to call overtime to get the work done. He first contacted the permanent coach cleaner who was on duty at the time, and accepted the overtime. He then called the permanent coach cleaners who were not on duty, all of whom declined the overtime opportunity. He then offered the overtime to student coach cleaner M. St. Pierre who was already on duty at the time. Ms. St. Pierre agreed to do the work and both coach cleaners remained and worked a total of four hours at the overtime rate.

The Brotherhood submits that the Company violated the collective agreement by failing to call employees in the next classification when the permanent coach cleaners had all declined the overtime. It submits that it should have canvassed employees in the other classifications before assigning the overtime work to student coach cleaner St. Pierre. He asserts a two-fold position, firstly claiming that the practice followed by the Company in the instant case is inconsistent with the "student rule" negotiated for the years 1987 and 1988 which is as follows:

The Brotherhood submits that the assignment of overtime to the student in question went beyond the general purpose of supplementing staff and providing relief for regular employees contemplated in clause (a) of the rule and, secondly, that awarding overtime to the student is tantamount to the granting of "fringe benefits" contrary to the intention of clause (c).

Alternatively, the Brotherhood maintains that the Company’s actions violate rule 5.14 which governs the distribution of overtime:

The note to article VIII of the Master Agreement plainly contemplates that students may be hired as coach cleaners in Cochrane "for the Moosonee service". The Arbitrator has been directed to nothing in the language of the collective agreement which restricts the entitlement of students within a given job classification to perform overtime when, as in the instant case, all permanent employees in the same classification have declined the opportunity to do so. As evidenced by the terms of article VIII of the Master Agreement, the parties have specifically addressed the rights of students, expressly limiting the terms of their hire in respect of dates of work, salary and, to some extent, assignments. There is, however, nothing on the face of the Master Agreement which would deny to students access to overtime which becomes available within their classification.

The Arbitrator cannot accept the argument of the Union based upon the words "fringe benefits". In the parlance of industrial relations and collective agreements there is a generally accepted and well understood distinction between wages and benefits. In my view the issue of the amount payable to an employee after the completion of regular hours of service is, in essence, one of wages and not of benefits or "fringe benefits" as contemplated in article VIII of the Master Agreement. I am reinforced in that conclusion by the statutory provisions for overtime rates of pay found in both the provincial Employment Standards Act of Ontario and within the Canada Labour Code. Premium pay for working overtime is plainly not a fringe benefit as that phrase is generally understood. The Arbitrator is unable to extrapolate from the parties’ agreement that students do not qualify for fringe benefits the conclusion that they are prohibited from being assigned available overtime within their own classification, subject to the prior right of refusal of permanent employees in the same classification. Moreover, the language of subparagraph (c) allows students to receive fringe benefits which are "required by law". Therefore, even if it should be concluded that the payment of overtime premiums is to be viewed as a fringe benefit, to the extent that such payments would be required by statutory law, they would be available to students employed under article VIII of the Master Agreement.

It does not appear disputed that when overtime is called it must first be made available to the employees within the classification concerned. In the instant case Ms. St. Pierre was employed as a coach cleaner in the car department at Cochrane for the Moosonee service. Absent any clear language within the collective agreement prohibiting her entitlement to work overtime the Arbitrator is compelled to conclude that no violation of the collective agreement is disclosed in the instant case.

For the foregoing reasons the grievance is dismissed.

DATED AT TORONTO, this 29th day of September, 1989.

Arbitrator