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HomeMy WebLinkAbout1989-0249.Wright.90-06-15 ONTARIO EMPLOY~:S DE LA COURONNE Clio WN EMPL 0 YEES DE L'ON TA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO, ~SG 1Z8-SUITE 2t00 TELEPHONE/T~cL~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO,~ MSG ;~Z8 - ~)DREAU 2*)DD 1416,15°~8-0688 0249/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN E~PLOYEE$ COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Wright) Grievor - and - The Crown in Right of Ontario (Ministry of Labour) Employer Before: B.B. Fisher Vice-Chairperson I. Thompson Member D. Clark Member For the Grievor: G. Richards Senior G~ievance Officer Ontario Public Service Employees Union For the Employer: E. Hipfner Staff Relations Officer, Management Board of Cabinet Hearing: September 1, 1989 DECISION This case involves a consideration as to whether or not the grievor is entitled to a travel allowance under the provision of Article 23.1, which reads as follows: 23.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry. The important facts, which are not in dispute, are as follows: . ~- 1. The grievor is classified as an Environmental Officer III holding the position of Occupational Health Technician in the Ministry of Labour. 2. He is a Schedule "A" employee pursuant to Appendix 3 of the Collective Agreement. Schedule 3 employees, due their irregular hours, only are paid overtime if they exceed the yearly maximum of 1,885 hours of work per year. 3. This grievance only involves those times where the grievor is travelling by Public carrier on days other than those on his regular days off. 4. During such time as he is travelling by public carrier he is responsibility free with respect to government equipment under his care. 5. Travel is an inherent part of the grievor's job. 6. Thd employer presently treats the time spent on public carrier as work, and ' thus his time spent on a public carrier is allocated towards his yearly maximum of 1,885 hours. The Un/on takes the position that the time he spends on public carrier is not work, but rather travel thus he should be paid travel time and not have the hours count towards his yearly maximum. Both parties agree that the Board has applied two tests to determine whether ' or not an employee is "working" or "travelling" within the terms of the CollectiVe Agreement. 1. Is travel during.the employee's regular hours of work an inherent (i.e. substantial) part of her job? In this case the answer is "yes". 2. Is there a ~:ontinuing responsibility on the part of the employee during the period of travel to care for Ministry property (vehicle, equipment) or other personnel (inmates, co-workers)? In this case the answer is "no". The problem here lies in determining the result where the answer to the questions are as we have here, one "yes" and one "no". Clearly, where the answers are both yes, the time is characterized as "work". Also, clearly when both the answers are no, the answer is "travel". In the course of this case, we reviewed a large number of Grievance Settlement Board cases involving the determination of whether the time was characterized as "work" or "travel". Attached as Appendix "A" to this decision is an analysis of those cases in chart form. The cases with 'Yes, Yes or No, No give us little insight into whether the test is "either/or" or "both". However, ah examination of the Yes, No cases should give us some insight. In Marcotte, the grievor was responsible for returning a Ministry vehicle and his co-workers to the place of work. He was held to be working even though travel was not an inherent part of the job. Similarly, in Churchill, the driver of a Ministry vehicle carrying co-workers was held to be working while the passengers were merely travelling. In Pileggi, travel was held to be an inherent part of the grievor's job and it was therefore work even though he drove his own car and carried no Ministry equipment. However, in Fawcett, the grievor.was given travel credits when he drove his own vehicle, even though travel during his regular hours was an inherent part of his job. However, in Pingue, it was noted that "numerous subsequent decisions of the Board -3- clearly depart from that view". It seems ,that in Fawcett a major consideration was that as the grievor was a Schedule 6 employee and if the time was characterized as work he would not have been paid for it, as Schedule 6 employees do not earn overtime. In the case before us, the grievor is compensated for overtime if his accumulated hours exceed 1,885 per year.. Also in Eaton, the grievor appears to have had his time count as travel even though he was driving a Ministry vehicle. Eaton was written by Vice-Chairman Samuels, the author ofAnwyll, Stahl and Cle. ments, which are the cases most often cited by the later decisions. Eaton might seem distinguishable on its facts because although the. grievor was responsible for a Ministry vehicle, he neither carried any passengers or equipment. However, in Stahl, Samuels characterized the time as "work" even though the grievor had no passengers nor was he carrying any Ministry equipment, but travel was an inherent part of his job. We seem, therefore, to have a clear split in the cases, with three of the cases seeming to say that both elements are necessary in order for the time to be · characterized as work and two cases which seem to say that if either element is present then it is work. Which ihen is the Board to choose? It cannot be said that either line of cases is patently wrong, nor will the outcome.of this case "harm" either the employee or the Union because each of the parties routinely switch sides depending on whether or not the individual grievor will benefit. Some grievors desire overtime, others want travel time, depending on their individual schedule classification. Certainty in labour relations is an important goal. Sometimes, it is more important to have a clear and definite decision, one way or the other, rather than to continue a series of confusing and contradictory arbitral decisions. If the parties want -4- to change the roles, they can do so at the bargaining table, but at least they should have a clear understanding, where possible, of what the rules are today. This Board therefore determines the appropriate rule should be as in the Marcotte, Pileggi and Churchill cases, in other words, that the time is properly characterized as "work" if either: a) travel during the employee's regular hours of work is an inherent part of his job, or, b) there is a continuing responsibility on the part of the employee during the period of travel to care for either Ministry property or other personnel. The grievance is therefore dismissed. Dated at Toronto, this 18 th day of June t~arry B. ~sher, v'~ce chairperson ~ (Addendum attached I ~' Thomsou'~N[¢mber D. Ulari{, Metal>er File N~nber Hours Inherent For ~ or People? Travel or Work? Vice Chairperson Part of Job? Marcotte No Yes Work 54/78 Cowie No No Travel 99/78 Buchanan No No Travel 34/78 .Anwyll Yes Yes Work 406/83 ' Samuels Fawcett Yes No Travel 275/82 Eaton No Yes Travel 646/83 Samuels Clements Yes Yes Work 370/84 Samuels Mallette Yes Yes Travel 379/86 Forbes-RDberts Le Blanc No No Travel 2416/86 Forbes-Roberts Stahl Yes Yes Work 45/87 Samuels Pin~ue Yes Yes Work 1355/87 -2 - Case Trave. l During Work Oontirmin~ Responsibility Found To Be File Number Hours Inherent For Property or People? Travel or Work? Vice Chairperson Part of Job? Pilec~i Yes No Work 922/86 Forbes-Roberts Churchill a) No No Travel 232/86 b) No Yes Work Springate ~DDENDU~ 0249/89 Grievance of R. Wright I have reviewed the Chairman's award in this matter and feel that certain additional comments are necessary. The facts are not in dispute. The Grievor is an. Inspector who spends considerable time travelling in the course of his job, usually in his own vehicle, although in this case by commercial air carrier. The issue is whether or not time spent travelling should be regarded as hours of work and treated in accordance with Appendix 3, or travel time and treated in accordance with Article 23 of the Collective Agreement. In deciding whether or not the time should be characterized as work or travel the Union has argued for a two-fold test and the Employer for a single test. I am uncomfortable with the fact that no matter how the Board addresses the issue, the results will be uneven because the terms of this and previous collective agreements continue to allow for a variety of different schemes for hours of work and overtime, even where employees are performing similar functions. For example, Schedule 3'and 4 employees qualify for oYertime in the usual way. Schedule.A .employees are eligible for overtime, but their claims are restricted by the fact that their overtime is calculated using an averaging principal for'work in excess of 1885 hours per year. Schedule 6 employees are not entitled to overtime. - i - I find it incomprehensible that some classifications are assigned to Schedule A, and some to Schedule 6 when there is no apparent difference in their duties to j~stify this differential treatment. Why for example are employees in Mr. Wright's classification of Environmental officer 3 in Schedule A while a Scientist 4 working in the Occupational Health & Safety Branch of the same ministry is in Schedule 6? Both employees have a nominal headquarters and both are involved in jobs that require extensive travel to perform on- site inspections. The difference in Schedules gives rise to very different pressures on both employee and employer with respect to the characterization of travel. An employee in Schedule A, like the grievor, will usually find it advantageous to count travel as work and thus bring him more quickly to the point of overtime entitlement over the averaging period. In contrast, the interest of an employee in Schedule 6 is to treat travel under Article 23, as approved in the Fawcett decision, since workers in Schedule 6 are not entitled to overtime. In this case, we were told that the employer will not authorize overtime in excess of·1885 hours, although employees in Schedule A would otherwisebe eligible. GiYen our decision in this case that the grievor's travel should be treated as work, this means that the actual time spent on inspections will be reduced if the grievor is to keep within the limit Of 1885 hours per year. It will clearly be important for the employer to take this into consideration before comparing the productivity of inspectors whose assignments - Z - may entail different amounts of travel. It would be unfair, for example, if all inspectors were being pressured to achieve a standard number of inspections per year without regard for the differing amounts of travel time required in Southern Ontario as compared to Northern Ontario. I further believe it is important for this Board to comment on the ramifications of its decision with respect to Schedule 6 employees. The Chairman's stated intention to resolve confusing and contradictory decisions is laudable, but I am concerned this decision will be seen by the employer as permission to do an end run on the Board's previous decision in Fawcett, 275/82. By deciding that persons are "at work" when they meet either one of the two tests traditionally applied to resolve disputes over work and travel, the employer may be tempted to reject travel time claims filed by any Schedule 6 employees for whom travel is an inherent part of the job. I think it is important to remind the parties that in Blake, GSB #1276/87, the Board held that one panel should not reject the reasoning of another, unless there are exceptional circumstances. The decision in Fawcett, 275/82 states at page 9, "Article 23 - time credits while travelling, is addressed to all employees. It makes no distinctions amongst employees on the basis of Schedules or regularly scheduled hours. It contains no "in lieu" provision for employees on Schedule 6. It .does not define time spent in travelling as a period of work. It provides credits for time spent in travelling outside of working hours." At page 13, "Under present practice the grievor has already paid for time spent in travelling on days off and on holidays, since the employer classifies it as "work". The practical effect of this decision, therefore, is that the grievor is also eligible for credits for time spent daily during his normal work week in travelling outside the greater of 7-1/4 hours or the number of hours actually spent in performing his job duties, when authorized by the Ministry." I think it is important to emphasize that the views adopted here in Wright do not alter those expressed in Fawcett. The chairman here properly notes that it is the cases with "yes,.no" answers to the two fold test that give us an insight into the work-travel issue. It is significant that of the five cases cited, only Fawcett concerns an employee in Schedule 6. Marcotte, Churchill, Eaton and Pilea~i all concern employees who were entitled to overtime in appropriate circumstances. In Wright, we are again dealing with an employee in Schedule A which can be conveniently accommodated into this pattern without contradicting Fawcett. If, however, the employer were to apply the single test approved in this case to an employee in Schedule 6, the result would conflict with Fawcett and the Board could then be called upon to choose between an apparent conflict in the application of Fawcett and Wright. - 4 - In Bressette, GSB #1682/87, the Board found that the necessity of choosing between two squarely conflicting decisions in Beresford, GSB #1429/86 and Hicks, GSB #2563/87, constituted the type of exceptional circumstances foreseen in Dlake that would justify a panel from disregarding or rejecting the reasoning of an earlier decision. I think it is important to stress that a Fawcett-Wright conflict would not be of the same order of magnitude as that found in Hicks- Beresford, because there are very significant differences which govern the results here, namely the allocation of the grievors to Schedule 6 and Schedule A respectively, whereas no similar differences in fact or law existed to distinguish the Hicks and Beresford cases. In short, there should be no need to choose between Wright and Fawcett, but the limitations of Wright implicit in these comments need to be stated now, before another Schedule 6 cases arises for hearing, if the clarity sought by the Chairman for the guidance of the parties is to be fully achieved. D&TED at ~onto, this /~~L~ day oE ~une, ~990 · Thomson