A-888-77
Attorney General of Canada (Applicant)
v.
Alan O'Toole (Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, April 4; Ottawa, June 26, 1978.
Judicial review — Labour relations — Interpretation of
collective agreement — Overtime provisions — Casual
employees used 'in high mail volume situation rather than
giving overtime opportunity to regular postal worker on day of
rest — Adjudicator finding respondent had right to be offered
extra work before casuals called in — Whether or not
Adjudicator erred in law — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28 — Collective agreement between
Treasury Board of Canada and Canadian Union of Postal
Workers, signed at Ottawa, December 12, 1975 relating to
Postal Operations Group (non-supervisory), Internal Mail
Processing and Complementary Postal Services, Articles
15.05, 15.08, 15.10, 15.11, 15.12, 17.01, 39.07.
This is a section 28 application to review and set aside an
Adjudicator's decision allowing a grievance submitted by
respondent, a member of the Canadian Union of Postal Work
ers, under a collective agreement. Respondent, a regular full-
time employee, was on his day of rest and not offered the
chance to work the extra hours necessitated by a high volume
mail situation that day. Casual employees were used. The
Adjudicator held that, by virtue of clause 39.07 of the collective
agreement, respondent had the right to be offered the extra
work before casuals were called. The main issue is whether the
Adjudicator, in making her decision, erred in law.
Held, (MacKay D.J. dissenting) the application is dismissed.
Per Urie J.: Article 17.01 provides the key to the interpreta
tion since it contemplates employees working on their days of
rest and since there is nothing in Article 39.07 which excludes
the use of regular employees on their days off rest, the whole
context of the agreement indicates that they should be offered
the opportunity to work, if available, before work is offered to
casuals.
Per Ryan J.: It is a question of fact, not of law, whether an
employee on his day of rest was available to work overtime
required by a high mail volume. Nothing in the collective
agreement compels the conclusion that for the purposes of
clause 39.07 an employee on his day of rest could not be
considered as being available to perform overtime work.
Indeed, a contrary intention is found in clause 17.01 which
concerns the doing of work by employees who would be other
wise on their day of rest. Its provisions make it difficult to
conclude that regular employees cannot be considered as being
available to work overtime on their day of rest. Before casuals
may be used under clause 39.07, employees on their day of rest
are entitled to be offered overtime occasioned by a high volume
of mail if they are, in fact, available for such work when a
reasonable effort is made by the employer to contact them.
MacKay D.J. (dissenting): Unless work on a day of rest
comes within the term "additional hours and/or overtime" in
Article 39.07, there is nothing to require the employer to offer
the work referred to in Article 39.07 to employees on their day
of rest before calling in casual help. Article 15 indicates the
meaning of "overtime" is restricted to hours worked by full-
time employees in addition to their regular eight-hour working
day. The words "extra hours" and "additional hours" in Article
39.07 include "overtime" as defined by Article 15 and all have
reference only to hours that are worked by an employee in
addition to his regular eight-hour day. Work done by
employees called in to work on their day of rest cannot be
described as being either "additional hours" of work or over
time because the employee on his day of rest is not otherwise at
work on that day. For employees who are on their day of rest,
the principle of equal opportunity applies only as among them
selves. Since work on a day of rest does not come within the
provisions of Article 39.07, the Board erred in law in holding
otherwise.
APPLICATION for judicial review.
COUNSEL:
E. R. Sojonky for applicant.
P. J. Cavalluzzo for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Golden, Levinson, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the opportunity of reading
the reasons for judgment of both of my brothers
Ryan and MacKay and find each of them to be
persuasive. It is, therefore, not without hesitation
that I have concluded that the section 28 applica
tion must be dismissed. It is my opinion that,
persuasive as his argument is, to give to the rele
vant articles the interpretation suggested by
MacKay D.J. would be unnecessarily restrictive. I
believe that Article 17.01 provides the key to the
interpretation since it contemplates employees
working on their days of rest and since there is
nothing in Article 39.07 which excludes the use of
regular employees on their days of rest, the whole
context of the agreement indicates that they
should be offered the opportunity to work, if avail
able, before work is offered to casuals. Any other
interpretation, in my view, requires resort to a
strained interpretation which is not consistent with
the agreement when read as a whole or the spirit
in which collective agreements in general should
be interpreted.
The section 28 application should, therefore, be
dismissed.
* * *
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an application under section 28
of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, to review and set aside a decision
which was made by G. Gail Brent, a member of
the Public Service Staff Relations Board and
Adjudicator, on November 18, 1977. The
Adjudicator allowed a grievance submitted by the
respondent, Mr. Alan O'Toole, a member of the
Canadian Union of Postal Workers (referred to in
these reasons as "the Union") under a collective
agreement between the Treasury Board of Canada
and the Union, signed at Ottawa, December 12,
1975. The agreement related to the Postal Opera
tions Group (non-supervisory), Internal Mail Pro
cessing and Complementary Postal Services.
The grievance had been presented up to and
including the final level in the grievance process
under the collective agreement. It involved the
interpretation or application in respect of Mr.
O'Toole of a provision in the collective agreement.
The grievance had not been dealt with to his
satisfaction so he referred it to adjudication under
section 91 of the Public Service Staff Relations
Act, R.S.C. 1970, c. P-35.
It is not in dispute that on June 30, 1976 a high
mail volume in the Saint John Post Office neces
sitated the working of extra hours. Mr. O'Toole, a
regular full-time employee, was on his day of rest.
He was not offered the chance to work the extra
hours. Casual employees were used. The question
is whether Mr. O'Toole had the right to be offered
the extra work before casuals were called. The
answer depends on an interpretation of clause
39.07 of the collective agreement, which reads:
39.07 High Mail Volume Situation
When high mail volumes necessitate the working of extra
hours, the Employer agrees that such work will be offered first
to regular employees available to perform additional hours
and/or overtime. In instances where the action mentioned
above is not sufficient to meet service requirements, casual
employees will be used to complement the regular staff.
The Adjudicator held that by virtue of clause
39.07, Mr. O'Toole had the right to be offered the
extra work before casuals. The main issue on this
section 28 application is whether, in interpreting
clause 39.07 as she did, the Adjudicator erred in
law.
The adjudication was heard on the basis of an
agreed statement of facts. The statement is brief,
and it may be as well to set it out in full:
AGREED STATEMENT OF FACTS
RE: ADJUDICATION-A.R. O'TOOLE
(166-2-2904)
1. On Wednesday, June 30, 1976, there was a high mail
volume situation on all shifts within the meaning of PO (NS)
Article 39.07 necessitating the working of extra hours in the
Saint-John Post Office.
2. In the application of Article 39.07, the Employer, on June
30 offered overtime or additional hours as follows:
(a) additional hours to regular part-time employees on duty
that day;
(b) overtime to regular full-time employees at the conclusion
of their shifts;
(c) overtime to regular full-time employees immediately
prior to their shifts.
3. As the action taken in paragraph 2 above was not sufficient
to meet service requirements, casual employees were used to
complement the regular staff.
4. Mr. O'Toole, the grievor, is employed in the Saint-John Post
Office as a full-time P0-4 on the afternoon shift (12:00 to
20:30 hrs.)
5. Wednesday, June 30, 1976, was a day of rest for the grievor
and he was not requested to work on that day. No other
employee on a day of rest was requested to work on that day.
6. Had the Employer requested the grievor to work on his day
of rest he would have done so.
It is also desirable to set out the exact terms of
Mr. O'Toole's grievance:
That on Wednesday 30, 1976, Management brought in casuals
and did not offer me the opportunity to work my R.D.O. This is
a violation of articles 39.02, 39.03, 39.07 of the collective
agreement and of the past practice of the last 2 years.
Mr. O'Toole requested:
That: (1) The past practice of offering overtime to regular
employees, including work on a Day of Rest, be continued prior
to seeking casual help, and
(2) I receive 12 hours of overtime at the rate of double time.
Actually, the principal, if not the sole, submis
sion to the Adjudicator on behalf of the employer
was that, unless the collective agreement limits the
employer to the use of bargaining unit personnel,
the employer has the right to use casual help. The
submission was that article 39 of the agreement
expressly reserves the right of the employer to use
casuals in the absence of an express prohibition,
and that clause 39.07 does not prohibit the use of
casuals before offers of overtime are made to
regular employees on their day of rest. Counsel
asserted that the words "additional hours and/or
overtime" have a special meaning and that this
meaning is disclosed in article 15, the article of the
agreement which has to do with "OVERTIME". The
submission was that "overtime" and "additional
hours" must be limited to work for which no more
than one-and-one-half times the hourly rate
applies. This, it was submitted, would have the
effect of excluding work on a day of rest because,
by virtue of clause 17.01, a higher scale of pay,
namely double time, applies to such work. Accord
ing to the reasons for decision of the Adjudicator,
"... counsel agreed that the employer would have
to offer work to those to whom the regular over
time and additional hours apply before resorting to
casual time, but asserted that that was the only
restriction placed on the employer by the
agreement."
The Adjudicator rejected, and in my opinion
properly rejected, this submission. She said:
... I believe that, inter alla, article 15' sets out a minimum rate
for overtime which would apply whenever there was no higher
premium applicable to the extra hours worked. Those extra
hours would nonetheless be overtime even though the higher
rate applied. In other words, article 15 does not define overtime
as being only that work for which 1 1 / 2 times the rate is paid, but
sets the rate which will be paid for overtime, all else being
equal.
That being the case, I cannot read article 39.07 as limiting
the employer's obligation to offering the extra work to those
regular employees who could be paid at a rate no greater than
1 1 / 2 times their regular rate.
The matter was argued on the basis that, given the agreed
facts, if I accepted the argument on behalf of the grievor and
rejected the argument of the employer as to the limitation of
article 39.07, then the grievance should be allowed. Since, for
the reasons set out above, I do not accept that article 39.07, by
reference to "overtime" and "additional hours" limits the
employer's obligation to use those people who can be compen
sated at a rate no greater than 1 1 / 2 times the regular rate, I
must accordingly allow the grievance ... .
Before us it was, however, submitted 6n behalf
of the employer that, even if the term "overtime"
is broad enough to include double time, nonethe
less employees who are on their day of rest, by that
very reason, are not "available" for overtime. On
the assumption that that submission is now open to
the employer, I would reject it.
It would seem to me to be a question of fact, not
of law, whether, in a particular case, an employee
on his day of rest was available to work overtime
required by a high mail volume. I say this because,
as I read the collective agreement, nothing in it
' Article 15, clause 15.01 of the collective agreement
provides:
15.01 Rates
(a)
(i) For full-time employees except as provided in 15.02,
overtime shall be paid at the rate of time and one-half
(1 1 / 2 ) for all hours worked in excess of eight (8) hours per
day.
(ii) For part-time employees, overtime shall be paid at the
rate of time and one-half (Ph) for all time worked in
excess of eight (8) hours per day or forty (40) hours per
week.
(b) Employees on a thirty-seven and one-half (37 1 / 2 ) hour
week shall be paid overtime at straight-time rates for all
hours worked in excess of thirty-seven and one-half (37 1 / 2 )
hours per week, up to and including forty (40) hours per
week and at the rate of time and one half (1 1 / 2 ) for all hours
worked in excess of forty (40) hours per week.
Clause 15.02 contains special provisions for meal and rest
periods.
compels me to conclude that for purposes of clause
39.07 an employee on his day of rest could not be
considered as being available to perform overtime
work. Indeed, I find contrary indication in clause
17.01 2 . Clause 17.01 holds in contemplation the
doing of work by employees who would otherwise
be on their day of rest. The clause provides for
payment at the rate of double time for such work.
Paragraph (c) of the clause speaks of employees
who "are required to work on a day of rest", and
makes applicable to them the principles of article
15, the "OVERTIME" article. In view of these
provisions I find it difficult to conclude that regu
lar employees cannot be considered as being avail
able to work overtime on their day of rest.
I recognize that it may be difficult for the
employer to know, when a high mail volume situa
tion develops or is in process of developing, wheth
er particular employees who are on their day of
rest are in fact available. The duty imposed on the
employer by clause 39.07 is, however, as I read the
clause, a duty that would be satisfied by doing
what is reasonable in the circumstances to deter
mine who are available and to make them the
required offer. I suggest that it should not be
z Clause 17.01 of the collective agreement provides:
17.01 Work on a Day of Rest
(a)
(i) "Day of rest" in relation to a full-time employee means
a day other than a holiday on which that employee is not
ordinarily required to perform the duties of his position
other than by reason of his being on leave of absence.
(ii) A full-time employee shall be paid at the rate of
double (2) time for all hours worked on a day of rest.
(b)
(i) "Day of rest" in relation to a full-time employee means
the same as defined in (a)(i) above.
(ii) A full-time employee called in to work on his day of
rest will receive a minimum of three (3) hours of work or
pay in lieu of work at double (2) time, subject to his
willingness to perform any work available in his own class.
(c) Where full-time employees are required to work on a day
of rest, the principles contained in Article 15 will apply.
difficult for the parties, proceeding under clause
15.17 3 , which falls within the "OVERTIME" article,
to agree, after "meaningful consultation", on
reasonable and expeditious procedures for resolv
ing this and other matters of detail.
I would note, however, before concluding, that
counsel for the applicant placed particular reliance
on certain other provisions of the collective agree
ment falling within article 15, the "OVERTIME"
article, as giving a limited scope to the words
"available to perform additional hours and/or
overtime" as these words are used in clause 39.07.
The opportunity to earn overtime is obviously
regarded, because of its premium rates, as being
an advantage, and a series of clauses, 15.05 to
15.19, is designed to establish a system for equaliz
ing opportunities to perform required overtime
work. In each postal installation, the employer
must post and maintain an appropriate list of
employees in order of seniority. The list must
indicate the overtime opportunities that have been
offered to each employee included in it. When less
than a full complement of employees is required
for overtime work, the opportunity to work must
first be offered to the employees on the list who
have had the fewest opportunities at the time the
overtime is required; when, at that time, there are
several employees with the same number of oppor
tunities, the work must be offered to them in order
of seniority; this is provided for in clause 15.07.
Clause 15.08 then provides:
15.08 Order of Priority
In the application of clause 15.07, overtime work will be
offered as follows:
(a) To employees on duty who normally perform the work
on which overtime is required in an office or on a particular
shift within an office, or, where applicable, in a division or
3 Clause 15.17 of the collective agreement provides:
15.17 Administration
The administrative details relative to the implementation
of these clauses, including the compilation of lists and the
manner in which employees are notified of overtime shall be
established following meaningful consultation at the local
level.
section of an office in descending order of the appropriate
list.
(b) To employees scheduled to work their regular shift when
the overtime is required immediately prior to that shift.
Clauses 15.10 to 15.12 provide:
15.10 Definition of an Opportunity
An employee on the appropriate list when overtime is worked
shall be deemed to have had an opportunity to work overtime in
the following instances:
(a) where the employee accepts;
(b) where the employee refuses;
(c) where the employee is absent on leave.
15.11 No loss of Opportunity
An employee on the appropriate list at the time overtime is
worked will not be considered as having had an opportunity to
work overtime in the following instances:
(a) where the employee is on rotation day off;
(b) where an employee has been assigned overtime in an
ascending order on a list in accordance with clause 15.12.
15.12 Compulsory Overtime
In the event that the Employer is unable to obtain sufficient
employees to work overtime by following the system of equal
opportunity in descending order, then the Employer shall, in
accordance with the system of equal opportunity, assign the
required number of employees in an ascending order from the
appropriate list. Where standards of service and plant capacity
permit, the Employer will take reasonable measures to ensure
that assignments to work overtime in ascending order of the
appropriate list will be minimized.
Counsel for the employer submitted that para
graph (a) of clause 15.11 indicates that, for pur
poses of the collective agreement, an employee on
his day of rest (it was agreed that "rotation day
off' is a "day of rest") is not considered as being
available for overtime; this is so, it was submitted,
because, by virtue of the clause, he is not even
considered as having had an opportunity to work
overtime if overtime is required on that day. Coun
sel for the Union, on the other hand, submitted
that, if an employee on his day of rest is not
considered as being available for overtime, it
would hardly have been necessary to make special
provision for him in clause 15.11. He submitted, as
I understood him, that, when read with clause
15.10, paragraph (a) of clause 15.11 has the effect
of giving to an employee on his day of rest the
privilege of accepting or of rejecting an offer of
overtime without being considered as having had
an opportunity for such overtime. I would find the
latter submission very difficult to accept if it were
meant to suggest, as I am by no means sure it was,
that an employee on his day of rest could accept an
offer to work overtime without being considered as
having had such an opportunity; it might, however,
well make sense if the effect would merely be that
an employee on his day off could refuse the offer
without losing his prior claim to work overtime on
a later occasion. The effect of an acceptance or
refusal of an offer to work overtime on a day of
rest need not, however, be decided here.
Clause 15.11, whether read alone or in conjunc
tion with clause 15.10, does not cause me to alter
the interpretation of clause 39.07 that I have
already indicated. I would need a more compelling
indication of an intent to exclude employees on
their day of rest from the scope of clause 39.07.
I have also considered whether clause 15.08 has
the effect of giving to the words "available for
overtime", as used in clause 39.07, a meaning
limited to employees who fall within its paragraphs
(a) and (b). I do not, however, read clause 15.08
as so limiting the scope of these words. As the
heading of the clause indicates, its provisions
appear to me to establish priorities within the
general priority system created by the equal oppor
tunity principle defined in clause 15.07. Again,
however, it is not necessary for purposes of this
case to determine the precise impact of clause
15.08 on the equal opportunity principle.
My conclusion is that, before casuals may be
used under clause 39.07, employees on their day of
rest are entitled to be offered overtime occasioned
by a high mail volume if they are, in fact, available
for such work when a reasonable effort is made by
the employer to contact them.
I would agree with the Adjudicator that, having
in mind paragraph 6 of the agreed statement of
facts, Mr. O'Toole was available for overtime.
I would dismiss the application.
* * *
The following are the reasons for judgment
rendered in English by
MACKAY D.J. (dissenting): This is an applica
tion on behalf of the applicant pursuant to section
28 of the Federal Court Act to review and set
aside the decision of a member of the Public
Service Staff Relations Board allowing the griev
ance of the respondent.
An agreed statement of facts filed with the
Board was as follows:
AGREED STATEMENT OF FACTS
RE: ADJUDICATION-A.R. O'TOOLE
(166-2-2904)
1. On Wednesday, June 30, 1976, there was a high mail
volume situation on all shifts within the meaning of PO (NS)
Article 39.07 necessitating the working of extra hours in the
Saint-John Post Office.
2. In the application of Article 39.07, the Employer, on June
30 offered overtime or additional hours as follows:
(a) additional hours to regular part-time employees on duty
that day;
(b) overtime to regular full-time employees at the conclusion
of their shifts;
(c) overtime to regular full-time employees immediately
prior to their shifts.
3. As the action taken in paragraph 2 above was not sufficient
to meet service requirements, casual employees were used to
complement the regular staff.
4. Mr. O'Toole, the grievor, is employed in the Saint-John Post
Office as a full-time P0-4 on the afternoon shift (12:00 to
20:30 hrs.)
5. Wednesday, June 30, 1976, was a day of rest for the grievor
and he was not requested to work on that day. No other
employee on a day of rest was requested to work on that day.
6. Had the Employer requested the grievor to work on his day
of rest he would have done so.
Mr. O'Toole's grievance was:
That on Wednesday 30, 1976, Management brought in casuals
and did not offer me the opportunity to work my R.D.O. This is
a violation of articles 39.02, 39.03, 39.07 of the collective
agreement and of the past practice of the last 2 years.
The relief claimed was:
That: (1) The past practice of offering overtime to regular
employees, including work on a Day of Rest, be continued prior
to seeking casual help, and
(2) I receive 12 hours of overtime at the rate of double time.
Article 39.07 is as follows:
39.07 High Mail Volume Situation
When high mail volumes necessitate the working of extra
hours, the Employer agrees that such work will be offered first
to regular employees available to perform additional hours
and/or overtime. In instances where the action mentioned
above is not sufficient to meet service requirements, casual
employees will be used to complement the regular staff.
As the words "additional hours" and "overtime"
are not specifically defined in Article 39.07, other
articles in the collective agreement must be looked
at to determine the meaning to be given to them.
These articles are:
14.01 Definitions and Standards
(a) Except as provided in (b), the normal work week for
full-time employees shall be forty (40) hours, eight (8) hours
per day, five (5) days per week.
(b) Whenever the normal hours of work on the effective date
of this Agreement for full-time employees are thirty-seven
and one-half (37 1 / 2 ) hours per week, these hours shall contin
ue to be the normal hours of work for the duration of this
Agreement.
15.01 Rates
(i) For full-time employees except as provided in 15.02,
overtime shall be paid at the rate of time and one-half
(1 1 / 2 ) for all hours worked in excess of eight (8) hours per
day.
(b) Employees on a thirty-seven and one-half (37 1 / 2 ) hour
week shall be paid overtime at straight-time rates for all
hours worked in excess of thirty-seven and one-half (37y2)
hours per week, up to and including forty (40) hours per
week and at the rate of time and one-half (1 1 / 2 ) for all hours
worked in excess of forty (40) hours per week.
15.02 Meal and Rest Periods
(a) Full-time employees required to work more than two (2)
hours' overtime in excess of his daily schedule or shift, shall
be reimbursed for a meal allowance to the amount of two
dollars and fifty cents ($2.50).
(b) Full-time employees required to work overtime for a
period of two (2) hours or more immediately prior to his
regular shift will be given a ten (10) minute rest period
before commencing his regular shift. If the overtime period is
three (3) hours or more and he becomes entitled to a meal
break under 15.02(d), the rest period will not be given.
(c) Full-time employees required to work overtime for a
known period of two (2) hours or more immediately follow
ing his regular shift will be given a ten (10) minute rest
period prior to the termination of his regular shift.
(d) Full-time employees required to work overtime for a
period of three (3) hours or more, immediately prior to, or
immediately after his regularly scheduled shift will be pro
vided a meal period of one-half ('h) hour to be paid for at the
rate of time and one-half (Ph).
(e) Where a full-time employee works overtime prior to and
following his regular shift, and his total on-duty time is
eleven (11) hours or more, he will be provided a meal period
of one-half ('h) hour at time and one-half (1 1 / 2 ) provided he
has not received such meal period under the provisions of
15.02(d).
15.05 Posting of Lists
For the purpose of equalizing opportunity to perform
required overtime work, the Employer shall post and maintain
appropriate lists of employees in order of seniority, applicable
to each postal installation. Such lists shall indicate the overtime
opportunities offered each employee.
15.07 Definition of Equal Opportunity
Equal opportunity for overtime work shall mean that once an
appropriate list is established, overtime assignments will be
offered to persons on the list who have had a fewer number of
overtime opportunities until sufficient employees have been
obtained to fulfil the requirements. When there is more than
one employee who has had a fewer number of overtime oppor
tunities (as mentioned above), overtime assignments will be
offered to such employees in the descending order of the
appropriate list. Equal opportunity entails no obligation on the
part of the Employer for equal distribution of overtime hours
worked.
15.08 Order of Priority
In the application of clause 15.07, overtime work will be
offered as follows:
(a) To employees on duty who normally perform the work
on which overtime is required in an office or on a particular
shift within an office, or, where applicable, in a division or
section of an office in descending order of the appropriate
list.
(b) To employees scheduled to work their regular shift when
the overtime is required immediately prior to that shift.
15.11 No Loss of Opportunity
An employee on the appropriate list at the time the overtime
is worked will not be considered as having had an opportunity
to work overtime in the following instances:
(a) where the employee is on rotation day off;
(b) where an employee has been assigned overtime in an
ascending order on a list in accordance with clause 15.12.
Article 17, under the heading "Work on a Day
of Rest, Call Back" is as follows:
17.01 Work on a Day of Rest
(a)
(i) "Day of rest" in relation to a full-time employee means
a day other than a holiday on which that employee is not
ordinarily required to perform the duties of his position
other than by reason of his being on leave of absence.
(ii) A full-time employee shall be paid at the rate of
double (2) time for all hours worked on a day of rest.
(b)
(i) "Day of rest" in relation to a full-time employee means
the same as defined in (a)(i) above.
(ii) A full-time employee called in to work on his day of
rest will receive a minimum of three (3) hours of work or
pay in lieu of work at double (2) time, subject to his
willingness to perform any work available in his own class.
(c) Where full-time employees are required to work on a day
of rest, the principles contained in Article 15 will apply.
17.02 Call-Back
(a) A full-time employee called back to work after having
completed his scheduled hours of work for the day and
having left the Employer's premises will receive a minimum
of three (3) hours of work or pay in lieu of work at time and
one-half (1 1 / 2 ), subject to his willingness to perform any work
available in his class.
(b) Insofar as possible, work assignments covered by this
clause shall be in accordance with the principle of equal
opportunity as provided in Article 15.
Unless work on a day of rest comes within the
term "additional hours and/or overtime" in
Article 39.07, there is, on the facts of this case,
nothing in the agreement to require the employer
to offer the work referred to in Article 39.07 to
employees on their day of rest before calling in
casual help.
Article 15 makes it clear that the meaning of
"overtime" is restricted to hours worked by full-
time employees in addition to their regular work
ing day of eight hours and which additional hours
are worked either immediately before the com
mencement of their regular hours or commencing
immediately after completion of their regular eight
hours of work.
The words "extra hours" and "additional hours"
in Article 39.07 would include "overtime" as
defined by Article 15; they would also apply to
cases where the additional hours that were worked
did not come within the definition of overtime. For
example, in paragraph 2 of the agreed statement
of facts, reference is made to part time employees,
on duty that day, being offered "additional" hours
of work.
Article 17.02 provides for the call back of full
time employees who have completed their shift and
left the employer's premises; such work is addition
al work but not overtime.
The words "extra hours", "additional hours"
and "overtime" all have reference only to hours
that are worked by an employee in addition to his
regular eight hour day. This is necessarily so
because under the provisions of the agreement as
to equal opportunity and priority, if overtime was
required on consecutive days and more employees
were available and desired to work overtime than
were required for the overtime work on the first
day, the employees who worked overtime on the
first day would not be eligible to work overtime on
the next day.
Under the provisions of Article 17.01, employees
may be called in to work on their day of rest. Such
work is not and cannot be described as being either
"additional hours" of work or "overtime" because
the employee on his day of rest is not otherwise at
work on that day.
The reference in Article 17.01(c) to Article 15
does not mean that employees who are on their
day of rest are to have equal opportunity with
employees who are at work that day to do overtime
work. It simply makes applicable to employees
who are on their day of rest the principle of equal
opportunity as among themselves to work on their
day of rest.
Having reached the conclusion that work on a
day of rest does not come within the provisions of
Article 39.07, I am of the opinion that the Board
erred in law in holding otherwise.
I would allow the application and set aside the
decision of the Board, and refer the matter back to
the- Board to dispose of the matter in accordance
with these reasons.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.