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HomeMy WebLinkAbout1986-0232.Churchill et al.88-04-22IN THE MATTER OF AN ARBITRATION ‘Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between OPSELI (Churchill et al) And THE CROWN IN’RIGHT OF ONTARIO (Ministry 3f Transportation) Before For the Grievor fbr the Emp!oyer Hearing I. Springace Vice-Chairman J. Anderson Meinber M. O’Toole Member J. Masher Counse 1 Gowling & Henderson Barristers & Solicitors K.B. Cribbir Staff Relations Advisor Human Resources Branch Ministry of Transportation September 14, 1987 232186 Employer - 1 .- -- - , ,. - .: 1.1 . . -l- ,: , ,I ‘...I ( This case' arises out of 4eparat.e grievances filed by nine employees of the Ministry of Transportation in December, 1985. At the relevant time the grievors were classified 'as "Technician 3, &rveys". _.t They travelled to and. from various job sites in Ministry vehicles... All of their travelling was'done outside' of their"regular hours of work. They were paid "travel-time", at their“regular‘hourly rate, for all time spent travelling. The grievors and the union,. however, claim . that the grievors were entitled to -;be'pBid on an overtime basis. The.relevant provisions. of the collective agreement provide as follows: ~. ., ; c~ ., ~... ART&E 13 ~* - OVERTIME 13.1 The overtime.rate for the purposes of this 1 . . Agreement shall be one and one-half (l-1/2) times the employee's b.a,sic. hourly rate. , 13.2 In this Art~icle, "overtime? means-an-authorised period of work calculated to the nearest half-hour and performed on-a scheduled working day.in addition'to the regular working period, or . . performed on a scheduled day(s) off. ARTICLE 23 - TIME CRJEDITS WHILE.TRAVELLING 23.1 Employees, shall be, credited with' all'time spent in travelling outside of working hours when authorised by the ministry. .- :r ’ ., _. -- , . -2- 23.6 All travelling time shall be paid at the employee’s basic hourly rate or, where mutually agreed, by compensating leave. At the time the grievances were filed, the employer did not distinguish between employees who drove Ministry vehicles to and froa job sites and those who travelled as passengers in a Ministry vehicle. In both situations they were paid travel time eat their basic hourly rate. On July 17, 1986, however, the Ministry’s Human Resources Branch issued a directive to all Ministry management indicating that as cf August 1, 1986 any employee assigned to operate a vehicle outside of his regular hours of work for the purpose of transporting field employees or field equipment should be paid at overtime rates. Subsequent to August 1, 1986, whenever one of the grievors drove a Ministry vehicle to OK from a job site, he was paid on .an overtime basis. The employer acknowledges that the grievors should also be compensated for the time they spent,driving a Ministry vehicle outside of their regular hours of work prior to August 1, 1986. In line with the reasoning of this Board in Schmid 575/84 (Roberts), however, the parties agree that the entitlement to such compensation only extends back 20 days prior to the time that each grievor filed his grievance. The parties continue to disagree as to whether the grievors are entitled to be paid at overt ime rates for the time they spent travelling a,s passengers in a Ministry vehicle. With respect to this issue, the parties have agreed that one of the grievors. namely Mr. -3- Tom Stonehouse, should be treated as being representative of all of ,'a i‘ : the grievors, and that a decision with fe$ect to his .entitlement ~to :. overtime pay whi1.e a passenger will apply to thd' other grievers as .,', well. Mr. St&eh,ouse testified that he workg as apart of a survey party .~ comprised of a party. chief and two or three .fechnicians. Members of the survey party- perform engineering and i&al surveys at various locatidns in Southw&t$rn Ontario.~ The;'s$efid 'anywhere from one 'week to three months ate each~ job site. Travel'to-and from job sites is by :, way of a Ministry van wtfich is also &ed to t;an$por?t survey equipment. Depending on the distance~to t& j& si'te from London, the survey crew may spend anywhere from two ~to fifteen hours per week I travelling, all of it outside the. employees'~ ~norcal hours of work. Mr. Stonehouse testified that his total traveliiti'g'-time in- a year has ranged from 150 to 270 hours. :. < The Ministry .vehicle as well as'the survey equipment stored in the vehicle are signed out~~to the' party chief. It appears from Mr. Stonehouse's ,evidence that his party ~dhief ~is.eicluded from' the scope ,., of the, bargaining unit by. reasbn of holding a professional designation. Mr. Stonehouse testified that the party chief always parks the vehicle at his. home- ~outside of London. The party chief drives the vehicle between his residence. and Ld;ldon, but members of the survey party take turns driving the vehicle from London to the job - 4 - site. At one time the party chief did his share of the driving, but he ceased to do SO once the employer started paying bargaining unit employees who drive on an overtime basis. Mr. Stonehouse testified that during 80 percent of the trips to a job site, members of the survey crew spend some time discussing the job. He indicated, however, that these discussions are general in nature and do not involve the employees receiving instructions from the party chief about what they should do or what it’ is they are expected to accomplish. Mr. Stonehouse further testified that if the crew should stop for coffee while travelling; the practice is for the last person out of a door to lock it. He added that if the vehicle should develop a flat tire, or get stuck in mud, the crew as a whole changes the tire or pushes the vehicle out’of the mud. The union contends that the Mr. Stonehouse should be considered at work, rather than simply travelling, when a passenger in a Ministry vehicle. It bases this contention on two separate grounds. One is that Mr. Stonehouse continues to have a degree of responsibility toward the employer. The second is that travel is an inherent part of his job. The employer’s position .is that while a passenger Mr. Stonehcuse is essentially responsibility free and that travel is not an inherent part of his job duties. . -!I- .,,I; . I .: I ., ‘? .,, .-‘f. , : .., ,. ,C,... ,. ._ 'The collf?,dt\ve : :agreementa-!'exb-res.sly ,dist -:,I. 1. I. ."working hours.'~ and, ,' i I "time spent ',in,.,t,ra+lling". ,~/. % inguishes between Accordingly, all work;related -travel cannot be-,viewed- as ,,~. ,I,, "work " which au,tomatically attracts pay at overtime rates~~wheneve'r performed outside of an employee's regular hours of work. The,,BFard has,, however, redognized two ty$es of circumst&ces.where an~employee~travelling outside of his . ~ regular working hours might reasonably be said to be "at work" such as to qualify for. pay at .overtime:*r&es. One iS where the employee has a continuing responsibility towards the kmployer during a journey. See : The : Marcotte' 54/78 (Adams) and -&eme~nts '370/84 '(Samuels). I ,' i' second is where travel is.itself' am inherent and substantial part of . ., the employee's job. See: AnwyII 406/83~(Samuels). .' .: ~, .~ : __.,, . Unions counsel contends that the insta& case is "on all fours" with the facts in the Anwyil award. Mr; Anwyll was a fire alarm mechanic who, as part of a two man -crew; installed and serviced fire alarms in various government buildings: b&-third of his regular work day was spent travelling. Mr. Anwyll claimed overt&e pay for an hour spent travelling outside of~.his- regular 'houss of work. The Board upheld the claim, reasoning as follows: - '. ,. i 'a. Travel is a5 inherent part of the grievor:s:jdb. While his job ~descriptidn does not refer expressly to travel or driving Ministry.vehicles, it is obvious that he can't perform any of the functions mentioned unless he does travel. He cannot fulfil the purpose of his position without going from place to place in a sp.ecially equipped and,. ) stocked vehicle. Indeed, the grievor's uncontradicted evidence is that he travels one-third of his .regular-working hours; I . - 6 - b. Whether driving or not, the grievor is clearly responsible to the Ministry for the vehicle and its contents. Whether driving or not, the grievor bears a certain responsibility to get the vehicle back safely. If the grievor was a passenger and the driver had a heart attack, obviously the grievor would have to get the vehicle back to headquarters. At a gas station or coffee stop, the grievor would have equal responsibility to see that the vehicle and its contents were safe. Surely the Ministry would not want the grievor to relax and turn a blind,eye “because he wasn’t at work any longer, he was responsibility-free”. His responsibility would continue until the vehicle, equipment and parts were safely returned. .In Anwyll it was concluded that travel was an inherent part of Mr. Anwyll’s job. He was required to travel between different locations during the course of his working day and, indeed, he spent one-third of his regular hours of work travelling. Mr. Stonehouse, however, does not travel during his regular hours of work. Rather; he spends his day working at a single location. He returns to this same location for anywhere from one week to three. months. While -Mr. Stonehouse must travel long distan.ces to perform his work, given the wording of the collective agreement, the travel involved cannot reasonably be viewed as part of his work. To conclude otherwise would be to ignore the distinction the collective agreement makes between working hours and time spent travelling. Unlike the situation in the Anwyll case, Mr. Stonehouse travels with a party chief who has accepted responsibility for the vehicle and its contents. Further, employees other than Mr. Stonehouse travel as passengers in the Ministry vehicle. Generally, one of the other passengers is the party chief. Accordingly, should anything happen to the driver, it is not likely .that Mr. Stonehouse would be called unon - . - 7 - to take responsibility for the situation. Although it is true that Mr. Stonehouse is expected to assist should the vehicle become stuck or develop a flat tire,, logic suggests that such a situation occurs only infrequently. In the vast majority of cases, Mr. Stonehouse's responsibilities are limited to locking a door behind him when the crew stops on route for coffee. In our view this is the type of conduct otie,'would .expect of any passenger. It is not a sufficient basis on 'which to conclude that Mr. Stonehouse is at work rather than simply travelling. When travelling as a passenger Mr. Stonehouse~ is essentially responsibility free ,and hence he is entitled to be paid only at the travel time rate. See: Cowie 99/78 (Adams) and Buchanan -- 34/78 (Kennedy): Having regard to the above, we are satisfied ,that Mr. Stonehouse is entitled to be paid at the travel time rate when travelling as a passenger in a Ministry vehicle. This ruling also .applies to the other grievors. All of the grievors are, however, entitled to be paid at overtime rates when actually driving a Ministry vehicle outside of their regular hours of. work. We will remain seized of this matter in the event the parties are unable to agree on the amount of compensation owing to the grievors with respect to the time spent.driving a Ministry vehicle. - 8 - DATED AT TORONTO this 2zid daY Of A$rLi , 1988