IN THE MATTER OF AN ARBITRATION
ONTARIO NORTHLAND RAILWAY
- and -
BROTHERHOOD OF RAILWAY CARMEN OF CANADA
GRIEVANCE OF R. FARQUHAR
SOLE ARBITRATOR: M. G. Picher
APPEARING FOR THE COMPANY:
Michael Restoule – Labour Relations Assistant
Ron Leach – Chief Mechanical Officer
APPEARING FOR THE Brotherhood:
Brian Stevens – General Chairman
Michael G. Pilon – Vice-Chairman
A hearing in this matter was held in North Bay, Ontario on September 22, 1989.
The assignment of overtime to summer student employee, M. St. Pierre to perform coach cleaning work on the delayed Moosonee train on August 8, 1983.
JOINT STATEMENT OF FACT:
On August 3, 1988 the company required coach cleaning work to be done on the delayed Moosonee train. After the regular coach cleaners’ overtime call list was exhausted, the company called M. St. Pierre, a student hired as a coach cleaner, to perform the work.
The Brotherhood contends that M. St. Pierre should not have been called but that Carman R. Farquhar should have been called to perform the overtime work claiming violation of Rule 5.14 of the collective agreement.
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:
ARTICLE VIII – STUDENTS
Amend all non-operating collective agreements to include the following provisions governing the use of post secondary students.
(a) Students may be hired, where warranted, to supplement the staff and to provide relief for regular employees.
(b) The rate of pay for students will be $7.25 per hour. Such rate is not subject to general wage increases but may be renegotiated from time to time.
(c) Students will only be hired under this Article during the period May 1 to September 15. They will be engaged for a specific period of time, will not accumulate seniority and will not obtain bidding rights. The will also sot (sic) qualify for fringe benefits other than those required by law.
(d) In the event that employees holding seniority under this agreement are faced with lay-off or are on laid-off status, they will be given preference in employment over students covered by this rule.
NOTE: In the Car Department, students may be hired as Coach Cleaners in Cochrane for the Moosonee service. Before students are hired for special projects at other points, the matter will be discussed with, and approval given by, the General Chairman.
NOTE: In the Maintenance of Way group, students may be hired solely to supplement the ranks of Extra Gang Labourers.
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:
5.14 Record will be kept of overtime worked and men called with the purpose in view of distributing the overtime equally.
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.
(signed) Michel G. Picher