IN THE MATTER OF AN ARBITRATION
CANADIAN PACIFIC RAILWAY
NATIONAL, AUTOMOBILE, AEROSPACE,
TRANSPORTATON AND GENERAL WORKERS UNION OF
(Remuneration of Health & Safety Committee Members from Off-shifts)
ARBITRATOR: Vincent L. Ready
COUNSEL: John Bate for
Brian McDonagh for
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
the Master Health & Safety Committee meeting held in
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