Jason Antoski - Swing Shifts

AWARD

The Union alleges that the Company has violated the collective agreement as well as provisions of the Canada Labour Code respecting hours of work in the assignment of the grievor to a swing shift. Specifically, it objects to the fact that on two occasions during the work week the grievor is limited to an eight hour rest period between shifts assigned to him. The Company maintains that there is no violation of the collective agreement nor of the Canada Labour Code disclosed and also objects to the scope of the dispute as presented by the Union.

The nature of the grievance is succinctly reflected in the Dispute, Statement of Fact and Statement of Issue filed by the Union at the hearing, which reads as follows:

DISPUTE:

A dispute concerning Grievor Jason Antoski, file 03/ARB/38: KGV 0011, regarding what the Union considered illegal swing shifts at Sutherland, Saskatchewan, a violation of the Canada Labour Code Part III – Standard Hours, Wages, Vacations and Holidays – Interpretation, Section 166 – Definitions: and Hours of Work: – Section 169, and Rule 1.1, Rule 1.7 through Rule 1.1.14 and rule 4.1 through 4.3 of the collective agreement

STATEMENT OF FACT:

On December 19, 2002, a grievance was filed on behalf of Engine Attendant Jason Antoski at the Sutherland Facility concerning his being assigned to a “swing shift” with only an eight hour rest period between the shifts assigned him on Sunday and Monday, and Friday and Saturday:

Sunday and Monday: (8:00 to 16:00 Sunday), (00:001 to 08:00 Monday) – (8 hours)

Friday and Saturday: (16:00 to 24:00 Friday), (08:00 to 16:00 Saturday) – (8 hours)

Jason Antoski had been working this particular “swing shift” from February of 2002.

After representations by the Union, on September 25, 2002, a temporary alteration in shift assignments for all Engine Attendants at Sutherland was posted in an attempt to minimize the prevailing untenable situation for at least two of the Engine Attendants. This trial period was undertaken from September 27th to October 24th, 2002.

On October 25, 2002, the Sutherland Facility reverted back to the regular “swing shifts”, terminating a trial change and reverting back to the previous assignments. According to the Company the temporary assignments did not meet the needs of the Company.

On July 14, 2003 Mr. Antoski file a complaint with the Canadian Human Rights Commission, File #20030970. The CHR Commission set the matter aside stating they would not proceed with Jason Antoski’s complaint until the grievance procedure had been exhausted.

In the first months of 2003 Mr. Antoski also made a claim for Worker’s Compensation Benefits. Initially his claim was accepted by the Compensation Board in 2003 and then sustained by the Compensation Board Appeals Committee a March 27, 2003 incident where Mr. Antoski claims that he suffered from work related stress, anxiety and insomnia due to lack of rest between his work shifts. It now appears that the Company was successful in overturning the claim at the next step of the WCB appeal procedure.

STATEMENT OF ISSUE:

The Union contends that the “swing shifts” presently in place at CPR Sutherland Facility are contrary to the provisions of the Canada Labour Code Part III – Standard Hours, Wages, Vacations and Holidays – Interpretation, Section 166 – Definitions: and Hours of Work: – Section 169, and Rule 1.1, Rule 1.7 through Rule 1.1.14 and rule 4.1 through 4.3 of the collective agreement.

Therefore it is the position of the Union that the present “swing shifts at the Sutherland Facility must be eliminated forthwith and only those shifts which are in compliance with the provisions of Part III of the Canada Labour Code – Division 1, Hours of Work, and Rule 1.1, Rule 1.7 through Rule 1.14 and Rule 4.1 through 4.3 of the collective agreement be allowed to continue.

The Company denies the Union’s contentions and claims.

The Company’s preliminary objection concerning the scope of the grievance was argued separately at the commencement of the hearing. While an initial grievance was filed by Mr. Antoski on June 2, 2002 concerning the denial of overtime, the instant dispute arises from a separate grievance filed on December 19, 2002, alleging a violation of rule 1.8 of the collective agreement. The matter was progressed through the two steps of the grievance procedure, towards arbitration on that basis. However, in a proposed joint statement of fact and issue sent to the Company by the Union’s representative September 4, 2004 the Union identified a number of provisions of the collective agreement, both under rule 1 and rule 4, as well as the standard hours of work provisions of the Canada Labour Code, Part III, including sections 166 and 169 thereof. In essence, the assertion of the Company is that the Union improperly sought to enlarge or change the basis of the grievance.

The Arbitrator cannot agree. As argued by the Union’s representative, the essential grievance has remained the same, being an objection to the fact that the grievor is compelled to work two shifts within a twenty-four period twice within a working week. It was clear to the Company, as reflected in correspondence with Mr. Glenn Michalchuk at the various steps of the grievance procedure, that that was the nature of the Union’s objection, and that indeed safety ramifications were raised with respect to the limited rest periods which were accorded to him. Part of the Union’s objection, as articulated by Mr. Michalchuk, was also to the effect that a swing shift was not permissible without the Union’s consent, to the extent that Rule 1.8 provides for three designated shifts. That article reads as follows:

At running points, shifts shall be designated within a twenty-four hour period as follows:

(i) Midnight shifts shall be recognized as the first shift;

(ii) Day shifts shall be recognized as the second shift;

(iii) Afternoon shifts shall be recognized as the third shift.

It is well established that a board of arbitration should not be unduly technical in limiting the ability of the parties to deal with the true substance of the matter which gives rise to a dispute at arbitration, particularly where there is no demonstrated prejudice to the opposite party. I am satisfied that that is the case here, as regards the content of the Union’s ex parte statement of issue. The Union did not deviate in the object of its grievance, which is the insufficient rest period accorded to the grievor by reason of the swing shift he was required to work at Sutherland Yard in Saskatoon. As is clearly reflected in the statement of fact filed by the Union, in the transition both from Sunday to Monday and Friday to Saturday the grievor is limited to eight hours off between shifts. It is the propriety of that which is the substance of the dispute, and that has not changed by the invocation of the provisions of the Canada Labour Code cited in the Union’s ex parte statement. The law which either party may wish to rely on to establish its position at arbitration is a different matter from the position itself. Absent surprise or prejudice, there is nothing to prevent either side from invoking such statute law or provisions of the collective agreement as may support their position.

A different conclusion must be drawn, however, with respect to other provisions of the Canada Labour Code and the collective agreement first raised at the arbitration hearing itself, within the body of the Union’s brief. Without any prior notice to the Company, the brief separately makes reference to health and safety provisions of the Canada Labour Code Part II, including section 124, as well as to health and safety provisions of the collective agreement, including rule 44, matters never before brought to the Company’s attention. Insofar as these allegations are concerned the Arbitrator is compelled to sustain the Company’s objection. The Company’s representatives had no opportunity to prepare to deal with the arguments of the Union with respect to the alleged violations of those provisions of either the Canada Labour Code or the collective agreement, in a manner which I am satisfied is contrary to the clear intention and purpose of the rules of the collective agreement which govern the grievance and arbitration process, including the submission of proposed joint statement of issue. There is simply no room for surprise in such a system and to conclude otherwise would result in the need for adjournments and a frustration of the normal efficiency of the arbitration process.

Having reserved at the hearing, however, I am satisfied that the Union did give the Company notice of its intention to rely on the provisions of Part III of the Canada Labour Code as well as the additional provisions of the collective agreement cited in the Union’s ex parte statement of issue. On that basis the Company’s objection must be denied, save as relates to the pleading of the health and safety provisions of the Canada Labour Code and the collective agreement which were not included in the Union’s statement of issue.

I turn to consider the merits of the dispute. Firstly, the Arbitrator has difficulty sustaining the suggestion contained in the earliest Union correspondence to the effect that the Company is without any ability to establish a swing shift without the Union’s consent. The Union has directed the Arbitrator to no language in the collective agreement which would sustain such a limitation. Moreover, the unrebutted representation of the Company is that it has maintained swing shifts for purposes of relief at its facilities across Canada, for many years, without any objection from the Union. Specifically, article 4.3 of the collective agreement, reproduced below, allows for the establishment of relief assignments with different days and different starting times so long as they conform to the starting times of the employees who are relieved. That plainly contemplates the establishment of swing shifts.

Indeed, as became clear at the hearing, the Union’s representative did not fundamentally challenge the Company’s ability to use swing shifts for relief, limiting the grievance to the fact that the swing shift in operation at Saskatoon in contrary to the Canada Labour Code. That, in my view, becomes the true issue, an issue which is properly within the jurisdiction of the Arbitrator pursuant to section 60(1)(a.1), concerning the power to “… interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement;”. I am satisfied that this dispute falls squarely within that jurisdiction.

So defined, the dispute between the parties is relatively narrow. Can the Company require an employee to work a swing shift which results in that individual effectively working two eight hour shifts within a twenty-four hour period?

As an initial matter the Union’s representative draws to the Arbitrator’s attention provisions of the collective agreement which govern work hours, more specifically rule 1.7 through rule 1.14. Those rules deal with the establishing of three shifts in a twenty-four hour period, the hours within which those shifts are to commence, and a requirement on the part of the Company to consult with the Union’s local representative with respect to any change in existing hours of work. Given the disposition of this grievance on the merits of the application of the Canada Labour Code, the Arbitrator does not deem it necessary to deal with those aspects of the Union’s argument.

Rule 4 of the collective agreement addresses the issue of relief assignments and provides as follows:

4.1 All possible regular relief assignments with five (5) days’ work per week and two (2) consecutive rest days shall be established to perform necessary relief work or to perform relief work on certain days and such types of other work on other days as may be assigned under this Agreement.

4.2 Where situations exist making it impracticable to establish relief assignments in accordance with the above, the officers of the Company and the Regional Union Representative may, by mutual agreement, arrange for the relief assignments on such other basis as may be suitable.

Consent to such proposed arrangements shall not be unreasonably withheld in cases where otherwise employees would be required to work on assigned rest days or unreasonable travel time would be involved.

4.3 Regular relief assignments may on different days have different starting times, duties and work locations, provided such starting times, duties and work locations are those of the employee or employees relieved.

The Union does not allege a direct violation of the above provisions, as it does not appear disputed that the grievor did have the benefit of two consecutive rest days. Although the Union’s representative argues that when rules 4.1 and 1.8 are read together, it should be concluded that employees can only work one shift in a twenty-four hour period, I am not persuaded that the language of the agreement is so clear. It is, in my view, the provisions of the Canada Labour Code, Part III which is the true issue in the case at hand. In that regard the Union invokes sections 166 and 169 of Part III which read as follows:

166 Definitions – in this Part, …

“Day” means any period of twenty-four hours consecutive hours;

169. (1) Standard hours of work – Except as otherwise provided by or under this Division

(a) the standard hours of work of an employee shall not exceed eight hours in a day and forty hours in a week; and

(b) no employer shall cause or permit an employee to work longer hours than eight hours in any day or forty hours in any week.

The following provisions of the Code are also pertinent:

169 (2) Averaging – Where the nature of the work in an industrial establishment necessitates irregular distribution of the hours of work of an employee, the hours of work in a day and the hours of work in a week may be calculated, in such a manner and in such circumstances as may be prescribed by the regulations, as an average for a period of two or more weeks.

(2.1) Duration of averaging – The averaged hours of work calculated pursuant to subsection (2) remain in effect

(a) where the averaging of hours of work is agreed to in writing by an employer and a trade union, for the duration of that agreement or for such shorter period as is agreed to by the parties; or

(b) where the averaging of hours of work is not agreed to in writing by an employer and a trade union, for no longer than three years.

…

170. (1) Modified work schedule – An employer may, in respect of employees subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the standard hours of work set out in paragraph 169(1)(a) if

(a) the average hours of work for a period of two or more weeks does not exceed forty hours a week; and

(b) the schedule, or its modification or cancellation, is agreed to in writing by the employer and the trade union.

…

176. (1) Excess hours under ministerial permit – On the application of an employer or an employer’s organization, the Minister, having regard to the conditions of employment in any industrial establishment and the welfare of the employees, may, by a permit in writing, authorize hours to be worked by any class of employees therein in excess of the maximum hours of work specified in or prescribed under section 171, established pursuant to section 172 or prescribed by regulations made under section 175.

(2) Justifying permit – No permit may be issued under subsection (1) unless the applicant has satisfied the Minister

(a) that there are exceptional circumstances to justify the working of additional hours;

(b) the employer had posted a notice of the application for a permit under subsection (1), for at least thirty days before its proposed effective date, in places readily accessible to the affected class of employees where they were likely to see it; and

(c) if those employees are represented by a trade union, that the employer had informed the trade union in writing of the application for the permit.

(3) Duration of permit – A permit under subsection (1) shall be issued for the period specified therein, which shall not be longer than the period during which it is anticipated that the exceptional circumstances that justified the permit will continue.

(4) Additional hours may be specified – A permit under subsection (1) may specify either

(a) the total of the number of additional hours in excess of the maximum hours specified in or prescribed under section 171 or by regulations made under section 175, or

(b) the additional hours that may be worked in any day and in any week during the period of the permit.

The Company’s representative submits that the averaging provisions of the Canada Labour Code permit the swing shift which has been assigned to the grievor. After careful consideration the Arbitrator is left in some difficulty with respect to that assertion. That assertion is unsupported by any reference to a regulation, as contemplated under section 169(2) of the Code. Essentially the averaging provisions found under section 169(2) of the Canada Labour Code would appear to allow the possibility of deviating from the standard hours of work where the averaging of the hours of work in a day over a period of two or more weeks would bring them into compliance. To be sure, if the word “day” in these provisions was a calendar day, as argued by the Company, starting at 00:01 each morning the averaging of hours in the case of the grievor might be construed as falling within the permissible rule, assuming conformity with an applicable regulation. However, as provided in section 166 of the Code, “day” must be viewed any period of twenty-four consecutive hours. In the grievor’s case, therefore, the work day, and the work weeks that follow for the purposes of averaging, can be said to commence at 16:00 on Thursday and end at 08:00 on the following Monday. That is reflected in the following work schedule which, it is agreed, represents the grievor’s swing shift hours of work:

Thursday 16:00 to 24:00

Friday 16:00 to 24:00

Saturday 08:00 to 16:00

Sunday 08:00 to 16:00

Monday 00:01 to 08:00

As can be seen from the above, the shift assigned to the grievor requires him to work sixteen hours in a twenty-four hour period on two occasions during the week, being Friday/Saturday and Sunday/Monday. To the extent that he performs the same rotation in every in week, there is no basis of averaging on a two week or more basis which the Arbitrator can understand would bring his swing shift schedule into compliance with the requirements of section 169(1) of the Code. Nor, in my view, could any averaging avoid the mischief which is intended to be caught by the hours of work provisions of the Code, namely that an employee not be worked in such a fashion as to be unduly fatigued. To that end, the standard hours provisions of the Code contemplates eight hours on and sixteen hours off in a twenty-four hour period. In other words, as a general rule as part of his or her standard hours of work an employee should enjoy sixteen hours’ rest between shifts. In the grievor’s case, on two occasions during the week, he is limited to eight hours off, scarcely sufficient time to make his way home, have time for a meal, a reasonable night’s sleep, another meal and a return to work.

Clearly the Code does not rigidly prevent employees from working more than eight hours in a given twenty-four hour period. For example, the provision of overtime pay in section 174 of the Code contemplates working in excess of eight hours in a given day. What the Code does not contemplate, however, is the standard workday being organized so that an employee has only eight hours between shifts. It would appear that even that stricture can be relieved against, but it must be through agreement with a bargaining agent or by obtaining a permit from the Minister to allow excess hours as contemplated under section 176 of the Code. There is no suggestion of any agreement with the Union or that any such Ministerial permit application has been made in the circumstance of the case at hand.

In the result, the Arbitrator is satisfied that the Union has succeeded in demonstrating that the standard work schedule established for the grievor does offend against the standard hours of work provisions of section 169(1) of the Canada Labour Code. The swing shift established by the Company does require the grievor to work longer hours than eight hours in any “day”, indeed no less than twice in each work week. That deviation is not, insofar as the Arbitrator can understand, obviated by any averaging calculation which can be made, given that a day is defined as any twenty-four hour period.

The grievance is therefore allowed. The Arbitrator finds and declares that the Company has violated the hours of work provisions of the Canada Labour Code, in particular as established in sections 166 and 169 of the Code by the swing shift established for the grievor. The Arbitrator therefore directs the Company to cease an desist forthwith from requiring the grievor to work any shift so established.

I retains jurisdiction in the event of any dispute between the parties concerning the interpretation or implementation of this award.

Dated at Toronto, this 18th day of October 2004

_____________________________________________

MICHEL G. PICHER

ARBITRATOR

SHP588