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HomeMy WebLinkAbout1990-1888.Wang et al.91-08-07 ONTARfO EMPLOYES DE LA COuRONNE '" CROWN EMPLOYEE$ DE L'ONTAF~IO GRIEYANCE COMMISSION DE SETTLEMENT R :GLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST, E~E 21~, T~ONTO, ONTAR~. M5~ fZ8 TELEPHONE/TELEPHONE: (4 r~] 32~ 13a$ 180, RUE OU~DA50UEST, ~U~EAU 2~, TORONTO (ONTARIO), MSG 1ZE ~ACSfMrLE/T~LECO~E : ~ ~51 ~5-~396 1888/90, 1889/90 1890/90, 1898/90 IN THE MATTER OF AN ARBITRATION Under TEE CROWN EMPLOYEES COLLECTIVE BAR~AININ~ ACT Before THE GRIEVANCE SETTLEMENT BO~RD BETWEEN OPSEU (Wang et al) Grievor - a~ - The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer BEFORe: J. Samuels Vice-Chairperson J. Carruthers Member M. O'Toole Member FOR THE K. Whitaker GRiEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J.L. Thomson EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING' July 25, 1991 The grievors c2, im travel time, pursuant to Article 23 of the collective agreement, for the time they spent in transit outside of normal working hours' (8:30AM to 4:30PM) when they had to travel outside Toronto in the period after October 1, 1989. Their claims vary from 10 hours per year to 200 hours per year. They are the four people in the province responsible for inspecting amusement park rides arid construction hoists. They are classified as Elevator Inspector 1. Their office is in Toronto. They work variable hours and are "Schedule 6" employees under the Public Service Act. When they travel, they use their own vehicles, public bus, public aircraft, or taxis. Each man carries the necessary equipment in a briefcase tachometer, measuring tape, government seat and stopwatch. As well, they have hard hats and safety boots. They carry pagers, which are used from time t6 time. All this is government property, except for the boots. They keep the equipment at all times when at home, the equipment is usually stored in the trunk of the employee's car. The grievors spend most of their time away from their of, fice, travelling to and from their work sites all around the province. About 50% of the worksites are outside Toronto. Around 20% of their time is spent in transit. In 1987, a precisely similar grievance was filed by the then inspectors, and management decided to pay the claims. But the payments stopped at the end of September 1989, after management changed its practice in light of several decisions of the Grievance Settlement Board involving other employees and the issue of travel time. Article 23.1 of the collective agreement says that "Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry" (emphasis added). 3 The issue here is whether the grievors are "working" when they axe travelling outside Toronto to and from work sites outside the hours of 8:30AM to 4:30PM? This Board has dealt 'a number of times with the issue of travel and whether it is "working hours" or "outside of working hours". For most employees, if the travel is "working hours", and is outside the normal hours of work, ~e employee will get overtime. But Schedule 6 employees cannot get overtime, so the grievors here can get nothixtg if their travel is considered to be "working hours'~. The distinction between "work" and "outside of work" hinges on the matter of responsibility. This Board said long ago that "work" involves responsibility and the corollary of this is that an employee is not working when the time is responsibility-free (see Cowie, 99/78; Buchanan, 34/78; Anwyil, 406/83, at page 6). As it was put in Anwyll at page 6, "In our view, this jurisprudence leads to the conclusion that, in principle, the issue of whether an employee is entitled-to overtime pay or travel pay depends on whether or not the employee is undertaking responsibilities during the course of the journey". In Anwyll, the Board dealt with the case of a fire alarm inspector, who travelled to work sites in a Ministry vehicle, loaded With special equipment. For the following masons, the Board found that the employee was "working" while travelling (from page 7): Travel is an inherent part of the grievor's job. While Nis job descr!ption does nos refer expressly to trave! or driving Ministry vemicles, it is oDvious that he can't perfcrm any of the ~unc%ions mentioned unless he does travel. He carina% fulfil the pucS,~se of his position withou~ going from place to place in a s~eciall.y equipped and stocked vehicle. Indeed, the griever's uncontradJcted evidence that he travels one-third of his regular working hours. b. Whether driving or not, the griever is ctearly responsible to the M~nistry for the vehicle and its contents. Whether driving or not, the griever bears a certain responsibility to get the vehicle back safely. ~f the griever was a passenger and the driver had a heart attack, obviously the griever would have to get the vehicie back to headquar%ers. At a gas station, or a coffee stop, the griever would have equai responsibility tc see that the vehicle and its contents were safe. Surely the ~inistry would not want the griever to relax and turF~ a blind eye "because he wasn't at work any longer, he was responsibility-free" His responsibility would contlnue until Che.vehic!e, equipmen~ and parts were safeIy returned. The essential point in AnwytI was that the grievor was not simply moving from point A to point B, but had responsibilities towards the Employer during the trip. The primary responsibilities involved the Ministry vehicle and its contents. The Board concluded (at page 8i: The griever was not a passenger in. a chauffeur-driven vehicle, where the chauffewr bore the sole responsibi]ity for the vehicte. He happened to be the passenger, but he was part of a two-man team at work with a vehicle necessary to ~he work, and both men had a measure of responsibility for the vehicle and its contents. The Ministry kn. our case commends the reasoning in Aawyll to us, and says that we should do what the Board did in Elliot, !544/89. In Elliot, a Health and Safety Inspector claimed travel time in respect of hours he spent travelling between London and Talbowille to investigate a refusal to work. The day in question had lasted from 7:45AM to 10:15PM, and, like our grievors, this Inspector was Schedute 6 and not entitled to overtime. The Board held that the grievor was always at "work", and therefore not entitled to travel time. However, the basis of the Board's decision is not clear. The Board in Elliot quoted AnwyII, and appeared to apply the principle in Anwyll that "work" involves responsibility (see pages 7 and 8), and then concluded that the grievor was at "work" while travelling (at page 9): Travel to the various employer locations is necessarily an inherent part of his job. Eventhough he was driving his own vehicle, during the journeys in q?destion, he was carrying a Ministry provided pager. The Employer was in a position to contact him and give him directions on the pager. Besides, he was carrying with him a Ministry provided brief-case containing various forms, acts and regulations, all required in his day-to-day work. He also had with him Ministry provided s'afety equ'ipment such as safety glasses and hard hat. This evidence clearly indicates that the grievor was'still at work, when he was driving his vehicle from his home to the various work locations and.back to his home. But it is not clear from this passage wherein lay the grievor's responsibilities while travelling. In our view, the decision in Elliot ought to be confined strictly to its owh particular facts. Our facts differ, and we see no reason to fo/low Elliot. Travel is not "work" merely because the employee in question does a lot of travelling. This is where the Ministry went wrong when it changed its practifie. The Ministry issued a bulletin stating, among other things, that "When travel is an inherent part of the employee's job, travel outside of normal working hours is considered work, not travel, and is compensated as such". This statement obviously comes from the first part of the reasons in AnwylI quoted above (from page 7). But the Board in Anwyll did not say that the fact that travel is an inherent part of an employee's job is sufficient on its own to classify a period of travel as "working hours", The central point is that there must be some job-related responsibility during the period of travel. The Board in AnwylI was clear that the grievor's travel was "work" because of his responsibilities relating to the Ministry .vehicle and its contents. Travelling outside normal working hours is not "work", unless during the travel the employee has some responsibility towards the Employer. When the grievors in our case go to Thunder Bay to inspect a site, and then, when day is done, board a commercial aircraft for the trip home, they are not "working" in any sense of the term while the pilot and crew take them back to Toronto. They do not have the responsibilities that Anwyll had when he had to get his specially-equipped vehicle back to base safely. And it is no different if their out-of~normal-hours travel is on a bus, in a taxi, or in .their own vehicles. The grievors do not have work-related responsibilities during this transit. They are not "working" during this time. 7 We allow the grievances and will reserve our jurisdiction to determine any issue of compensation that arises as a result of this decision. Done at London, Ontario, this 7th day of August , 1991. ~~amu:is ~ X/ice-Ch,)ir'ers~fi ~ .~arruthers, Memu=~ M. O'Toole, Member