Non-payments 'unchallenged' by union for years: Arbitrator
After it realized that flight attendants for Air Canada’s discount arm, Rouge, were not able to claim a meal allowance during training hours, the union grieved the practice.
The Canadian Union of Public Employees (CUPE) argued in a grievance filed May 3, 2017, that mandatory training courses put on by the employer constituted employees being “on-duty” as per the collective agreement.
“Meals will be provided or meal allowances paid only where an employee is on duty or on a legal layover during an entire recognized meal period,” read article L55.08.01 of the agreement, which covered all cabin personnel employed by Rouge of the main carrier, Air Canada.
The union’s main argument arose from a company document, entitled “ePub,” that listed certain requirements of the job.
Flight attendants were required to “attend all training sessions when assigned. Training sessions are considered flights (duty). Keep yourself informed of the local requirements and start times,” it said.
However, the employer countered and said the ePub document was simply a guidebook and could not be considered an official legal document.
The employees were, however, paid a 50 per cent credit for every hour spent training, according to Christine Devine, general manager for labour and crew performance at Rouge.
As well, the employees were entitled to a per-diem payment and two hours per day of pay when they travelled for training purposes.
But, said the company, attendants were not entitled to be paid for mandatory training while at the employee’s home base.
The union also said that when attendants worked on an on-call basis that included a meal period, they were paid a meal allowance.
And the fact that training time was also tracked with respect to mandatory rest periods and maximum consecutive hours worked meant that this type of training should be considered duty, said the union.
Arbitrator Jesse Nyman dismissed the grievance.
“In order to accept CUPE’s position that a flight is not a prerequisite to the receipt of a meal allowance, I would have to ignore the use of the headings ‘Departures’ and ‘Arrivals’ in article L55.08.02 and conclude that the parties intended a per diem to be only payable in connection with a flight but that the payment of a meal allowance does not require a flight,” said Nyman.
“Moreover, article L55.06.08 expressly provides for, in part, the payment of a per diem (or payment to cover meal expenses while on a pairing) to flight attendants who are required to travel away from their home base for training,” said Nyman.
And the document on which the union based much of its argument was not persuasive enough for the arbitrator.
“While the ‘ePub’ clearly sets out Rouge’s expectation that training is mandatory, it does not contain any reference to compensation for training. While it does equate training with ‘flights,’ the nature of that statement is equivocal at best,” said Nyman.
"In the absence of more, I would not be prepared to draw the conclusion that Rouge intended to commit to any type of compensation during training,” said Nyman.
The union’s call for an estoppel against the employer was also dismissed by the arbitrator.
“Rouge’s consistent practice of not paying meal allowance to flight attendants engaged in training at home base was known to CUPE through the first-hand knowledge of its officers and members,” said Nyman.
"That practice however remained unchallenged throughout the full term of one collective agreement and the subsequent bargaining for the current collective agreement,” said Nyman.
Reference: Air Canada Rouge and Canadian Union of Public Employees, Air Canada component. Jesse Nyman — arbitrator. Jackie VanDerMeulen, Irene Chrisanthopoulos for the employer. Adrienne Lei, Brett Hughes for the employee. May 22, 2018. 2018 CarswellOnt 8029
