IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN PACIFIC RAILWAY
(the “Employer”)
AND:
NATIONAL, AUTOMOBILE, AEROSPACE,
TRANSPORTATON AND GENERAL WORKERS UNION OF
(the “
(Remuneration of Health & Safety
Committee Members from Off-shifts)
ARBITRATOR: Vincent
L. Ready
COUNSEL: John
Bate for
the
Employer
Brian
McDonagh for
the
HEARING:
PUBLISHED:
2542.1
The
parties agreed I was properly constituted as an arbitrator with jurisdiction to
hear and determine the matter in dispute.
The issue before me is the remuneration
of Health and Safety Committee members working afternoon or night shift
attending committee meetings on day shift.
The parties have jointly submitted the facts and issue of the dispute as
follows:
Statement of Fact:
Up until the issue arose the normal practices
with regard to Health & Safety Committee members from off shifts attending
Committee meetings were as follows:
1) Health
& Safety Committee members from off shifts would work their regular
assignment then attend Committee meetings for which they world receive overtime
pay;
2) Other
Health & Safety Committee members from off shifts would work their regular
assignment then attend Committee meetings for which they would bank the
appropriate amount of time under rule 2.6;
3) Other
Health & safety Committee members from off shifts would change their shift
to attend Committee meetings;
On or about
At
the Master Health & Safety Committee meeting held in
New
Business
Pay
for committee members. This will be
progressed through Arbitration ASAP.
Agreement by the Company to leave status-quo until such time a decision
is rendered. Jim Wilson to provide
Arbitrators names to Jim Cunningham.
It
was agreed by the parties that Arbitrator Vince Ready would hear this matter on
January 15/16, 2002 in Calgary.
Statement of Issue:
It is the contention of the Union that:
- the
Company’s suggested interpretation of Rule 44 in regard to the remuneration of
Committee members attending meetings from an off shift is a violation of Rule
2.1, 2.2, 2.6 and 2.7, Rule 5.1, 5.3, 5.4 and 5.15 and Rule 44.3(g).
- the
Company’s suggested interpretation of the Canada Labour Code Part II in
regard to the remuneration of Committee members attending meetings from an off
shift is a violation of the Canada Labour Code Part II.
Therefore,
with regard to the foregoing, it is the position of the Union that in regard to
the application of Rule 44 and the Canada Labour Code, Part II, must be
applied to the remuneration of Health & Safety Committee members attending
meetings from and off shift.
The
Company denies the Union’s contentions and instead contends that Health and
Safety meetings are scheduled monthly, in advance, and therefore ample
opportunity is available for representatives to arrange whatever shift
alteration may be required.
Prior to the 1992 round of bargaining
between the parties, health and safety and committees were established under
the Canada Labour Code. At that
time, and until the recent amendments to the Canada Labour Code Part II,
the relevant provisions of the Code read as follows:
135 (8) A
Safety and Health committee shall meet during regular working hours at least
once each month and, where meetings are urgently required as a result of an
emergency or other special circumstance, the committee shall meet as required
whether or not during regular working hours.
135 (9) The
members of a Safety and Health committee are entitled to such time from their
work as is necessary to attend meetings or to carry out any of the other
functions of a member of the committee, and any time spent by a member while
carrying out any function of a member of the committee shall, for the purpose
of calculating wages owing to that member, be deemed to have been spent at
work.
During
this period, the practices with respect to remuneration of committee members
from off-shift outlined above were developed.
Recently, the Canada Labour Code
Part II was amended and, specifically, the provisions respecting meetings and
payment of wages were amended to read as follows:
135 (10) A work place committee shall meet during
regular working hours at least nine times a year at regular intervals and, if
other meetings are required as a result of an emergency or other special
circumstances, the committee shall meet as required during regular working
hours or outside those hours.
135.1 (10) The members of a committee are entitled to
take the time required, during their regular working hours,
(a) to
attend meetings or to perform other functions; and
(b) for
the purposes of preparation and travel, as authorized by both chairpersons of
the committee.
(11) A
committee member shall be compensated by the employer for the functions
described in paragraph (10)(a) or (b), whether performed during or outside the
member’s regular working hours, at the member’s regular rate of pay or premium
rate of pay, as specified in the collective agreement or, if there is no
collective agreement, in accordance with the employer’s policy.
In
addition, the Collective Agreement also includes Rule 44. The relevant provision, Article 44.3(f)(viii)
and (g), read:
(f) Without
limiting the generality of the foregoing, the committee shall:
(viii) Hold
regular meetings at least once a month or more frequently if agreed by the
Union and the Company co-chairpersons.
(g) Time
spent by members of the committee in the course of their duties shall be
considered as time worked and shall be paid in accordance with the terms of the
collective agreement. This shall include
all time spent out of the plant on health, safety and environmental matters.
The Union takes the position that the
most recent changes to the Canada Labour Code Part II are instructive in
this case.
On behalf of the Union, Mr. McDonagh,
argues that the language of the Code was clearly designed to cover situations
such as the one in dispute in this case.
Counsel points out that the Code now makes reference to attending
meetings as a function of a committee member “whether performed during or
outside the member’s regular working hours”.
Further, Mr. McDonagh submits that the Code clearly requires that
committee members be remunerated properly for their duties “at the member’s
rate of pay or premium pay, as specified in the collective agreement”.
The Union takes the position that prior
to the Employer seeking to cancel the “practices” established by the parties,
the committee members were reasonably satisfied with the arrangements. In view of this, the Union chose not to
disturb those arrangements, notwithstanding the provisions of the Code and the
Collective Agreement to the contrary.
However, the Union takes the position that any arrangements that
previously existed have been cancelled and the Canada Labour Code Part
II and the Collective Agreement must now prevail.
Put another way, it is the position of
the Union that the Employer’s position for remuneration of off-shift committee
members is in violation of both Rule 44 of the Collective Agreement and the
new, restrictive provisions of the Code.
Finally, the Union submits that the
series of rules regarding overtime in the Collective Agreement establish that
any time spent outside of the regular working hours of an employee must be paid
at premium rates except where it involves “the payment of punitive overtime
rates to employees changing off where employees work alternately on stated
shifts, to employees changing positions under the exercise of their seniority rights,
nor to employees in regular relief service” (Rule 5.15).
In summary, the Union argues that
Health and Safety Committee members are lawfully chosen in their terminals and
it is not in dispute that they have the right to attend committee
meetings. Counsel submits that committee
members from off-shift attending committee meetings outside of their regular
working hours must, therefore, be paid in accordance with the provisions of the
Collective Agreement.
On behalf of the Employer, Mr. Bate
submits that there is no suggestion that health and safety representatives will
ever experience a loss of regular earnings.
The Employer also agrees that the operative provision of the Canada
Labour Code Part II provides that a committee member performing committee
duties outside of his or her regular shift will receive overtime payments. However, it is the submission of the Employer
that, while there will be no loss of regular earnings, there should also not be
a windfall due to overtime payments.
Counsel submits that Health and Safety
Committee meetings are scheduled monthly, well in advance, providing sufficient
opportunity for committee members to arrange whatever shift alteration may be
required.
In the submission of the Employer,
there is little doubt that it has entered into a period of enhanced
cost-containment. The Employer’s
initiative toward standardization of remuneration for Health and Safety
Committee members is simply the elimination of an overtime expenditure that
need not be incurred.
Finally, Counsel relies on the
conclusion of Arbitrator Picher in CROA 2284 (October 16, 1992) at page
5:
There
can be little doubt that the change implemented by the Company had negative
impacts on the employees who had previously taken advantage of the privilege
allowed to them by the Company. The fact
that the privilege was extended, for a substantial number of years, does not
however, elevate it to a collective agreement right which the Employer is without
power to withdraw for a valid business purpose.
In summary, the Employer submits that, under its
application, all committee members will have the opportunity to attend meetings
and will not lose from their regular earnings.
As such, the Employer is seeking the grievance be dismissed and that the
Employer’s intention to standardize its practice regarding the remuneration of
Health and Safety Committee members be declared fair and equitable.
In my view, the language of the Collective
Agreement and the Code, read together, are consistent and unequivocal in their
intent. The functions of Health and
Safety Committee members, including attendance at meetings, are to be
considered time worked and paid as such.
Where a member of the committee works afternoon or night shift and then
attends a committee meeting on day shift, he or she should be paid at the
appropriate overtime rates as established in the Collective Agreement.
Furthermore, in my view, it is not the intent
of the Canada Labour Code that workers should have to disrupt their
regular shift schedules in order to attend Health and Safety Committee
meetings. To the contrary, the Code
expressly states that committee members “are entitled to take the time
required, during their regular working hours…to attend meetings or to perform
other functions”. Where meetings are
outside “regular working hours”, members should be paid premium rates according
to the Collective Agreement for their attendance.
_____________________________
Vincent
L. Ready