Loading...
HomeMy WebLinkAbout1990-0045.Rutherford.90-08-21 : ¡-, ~ " ,~ . ,'- C, ONTARIO EMPWYES DE LA COURONNE CROWN EMPWYEES DEL'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 780 DUNDAS STREET WEST. TORONTO, ONTARIO. M5G 1Z8 - SUITE 2100 TELEPHONEITÉLÊPHONE 180. RUE DUNDAS OUEST, TORONTO. (ONTARIO) MSG 728- BUREAU 2100 (476) 598-0688 0045/90 IN THE MATTER OF AN ARBITRATION Under THE' CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before . THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rutherford) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer - and - B. Keller Vice-Chairperson J. C. Laniel Membe r· H. Roberts Member FOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & solicitors FOR THE J. Gallagher EMPLOYER Staff Rel?tions Advisor Human Resources Branch Ministry of Transportation HEARING: July 17, 1990 . . - 2 - , j , AWARD . The grievor claims pay of overtime rates for time he spent trav- eling as a passenger in a Ministry vehicle between his headquar- ters and Fort Erie and back outside his regular working hours. The facts as they relate to the inc~dent in dispute, and the grievor's normal job duties, are not in dìspute. Mr. Rutherford is an Enforcement Officer - Vehicle Inspector with headquarters in Hamilton. He is responsible for enforcing legislation and applying industry standards to commercial motor vehicles, trail- ers, buses, school purpose vehicles, physically disabled passen- ger vehicles, automobiles, motorcycles and light commercial vehicles. He is also a Provincial Offences O~ficer with respon- sibility for enforcing approximately 10 pieces of legislation such as the Highway Traffic Act, the Dangerous Roads Act and the Fuel Tax Act. Mr. Rutherford's duties are performed at Truck Inspection station (T.l.S.), on the premises of vehicle owners or roadside in the case of random checks. He has a cruiser, wears a uniform and is supplied with, and responsible for, a tool kit. The cruiser is I . ,t:, - 3 - , l k\ , I used to get to and from T.I.S.'s and headquarters an~ from one site to another in the case of visits to vehicles owners. It is also used to get to and from the location of roadside inspections. Although the use of the vehicle is not expressly - spelled out in the grievor's job specification it is implicit in the way it is worded. It is also the way it was described by the . concurred in by his supervisor, grievor and both of whom testified. On January 27, 1~90 the Ministry was conducting a blitz at the Fort Erie T.I.~. and Queenston Harrington Gateway. The grievo-r . and two colleagues were scheduled at the Fort Erie T.I.S. from 3 p.m. - 11 p.m.. The three took one vehicle rather than had ,- driving separately. Mr. Don Ryerson's vehicle was chosen because it was the largest and most comfortable. They left their headquarters prior to the commencement of Mr. Rutherfb'rd's scheduled shift and returned after it ended. While in Fort Erie - they each performed their normal job duties. Although more than one tool kit was taken on the trip, including that of the grievor, only one was required. The characterization of the issue to be determined by the Board - 4 - , ! was shared by the parties. If the grievor. fits within the tests enunciated in past decisions for entitlement to overtime he will be so paid. If not, then only travel time was due as paid by the employer. - There is a clear distinction in the collective agreement between "working hours II and "time spent in traveling". The former attracts pay as overtime and the later as traveling pay. In its jurisprudence, the Board has clearly, carefully and expressly recogniz~d the two situations where an employee traveling out~ide normal hours of work is "at workll and entitled to an overtime . rate of pay. The first circumstance, as expressed in Marcotte 54/78 (Adams) and Clements 370/84 (Sa~uels) for example, is where the employee has a continuing responsibility towards the employer during the course of a trip. The second, as expressed in Anwyll 406/83 (Samuels) is where travel is an inherent and substantial part of the job. - In the instant case, counsel for the grievor submitted that the facts were on all four with those in Anwyll, supra. In that case the grievor, Mr. Anwyll, an Electronics Technician 2 was scheduled to work from 8 a.m. to 4: 30 p.m.. His work on the day €, - 5 - ( ¿\ in question was not completed until 7:15 p.m. . He then had . dinner until 8 p.m. and drove back to his place of employment arriving at 9 p.m.. He was not responsible. for the vehicle, nor did he drive. He was paid overtime until 8 p.m. and travel time from 8 p.m. until 9 p.m.. One third of Mr. Anwyll's time was spent traveling from one job site to another, he regularly used a Ministry vehicle and carried all the parts and equipment required for his job in the vehicle. The Board determined that Mr. Anwyll was entitled to overtime pay for the whole period. with regard, in particular to whether Mr. Anwyll was !fat workll they said. . a. Travel is an inherent part of the grievor's job. While his job description does not refer expressly to travel or driving Ministry vehi- cles, it is obvious that he can't perform any of the functions mentioned unless he does travel. He cannot fulfill the purpose of his position without going from place to place in a specially equipped and stocked vehicle. Indeed, the grievor's uncontradicted evidence is that he travels one-third of his· regular working hours. The Ministry relies on the cares 'of Churchill et al 232/86 (Springate) and Rverson 2"141/87 (Knoph). The former dealt with whether there was entitlement to overtime pay as a passenger. - 6 - ~ The Board held there was not ~nd distinguished it from Anwyll, noting that: "Mr. Stonehouse (the representative grievor), however, does not travel during his regular hours of work. Rather, he spends his day working at a single location". In the Ryerson Case, the issue was whether the grievor was enti- tled to overtime pay for the half hour period required to drive from his home to his place of work because he was required to be in uniform. The union conceded the grievance when, during the hearing, the Ministry indicated that it would not oppose a declaration that there are no restrictions ön the grievor until he starts his shift. . In the instant case, as well as relying on the above Board deci- sions, the Ministry also argued that while it was prepared to concede that site-to-site driving was required as part of the grievor's normal duties, it was not so in the case of going to and from T.r.5s. although it agreed that the use of a vehicle was required to get there and back. The Ministry analogized going to and from Fort Erie the same as going to and from a T ..r. s. . In this instant case, it is obvious that the grievor, as part of -' r;" - 7 - (,; \ . i~ his regular duties, travels. This is equally truè whether he goes from site-to-site or to a T.I.S.. His work is not performed at headquarters nor is it performed at anyone set location: the grievor is, by the very nature of his job, forced to travel. - That is, and always has been, considered by the Ministry to be an inherent part of the job. The requirement, on the day in question, to go to Fort Erie was no different then his normal everyday reqUirements to go to a T.S.I. or a vehicle owner. Once in Fort Erie, he did the job he normally does. In fact, the only distinction between that day and any other day was the distance and time required to get to and from the locationof his work. And that is, in our view, a distinction without a difference. . The facts in this case ,are much on all four with those in Anwyll. We adopt the reasoning in that decision. By way of contrast the facts in the cases relied only the Ministry, as earlier decision in this decision, are 'clearly distinguishable from the facts in this case. - 8 - , \ , The grievance succeeds. The grievor is entitled to overtime as claimed. We remain seized in the event that there is any diffi- culty with the implementation of this decision. Nepean this 21st ~ay ~f August, 1990 ~ '~~~ M~ Ke~ler, Vice-Chairperson , ' /J ~~ J. c. Laniel, Member t-;-' JI., r ~ > ,. . I \ \.~,\.)...l(JV>-i' H. Roberts, Member I