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HomeMy WebLinkAbout1999-0840.Group Grievance.01-04-18 Decision o NTARI 0 EMPLOYES DE LA CO ['RONNE CROWN EAIPLOYEES DE L 'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB#0840/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ProfessIOnal Engmeers and ArchItects of the OntarIO Pubhc ServIce (Group Gnevance) Gnevor - and - The Crown m RIght of Ontano (Mimsm of TransportatIon) Employer BEFORE F ehcI~ D Bnggs Vice-ChaIT FOR THE Lam Robms, Counsel GRIEVOR Labour Consultant FOR THE Kelh Burke, Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING October 30 1999 March 29 2000 March 30 2000 and September 25 2000 DECISION In the expIred collectIve agreement between the partIes artIcle 13 stated. 131 Employees shall be credIted for mmlstry-authonzed TIme spent m travellmg outsIde of workmg hours to work locaTIons. 132 When an employee IS reqwred to travel on hls/her regular day off or a pmd hohday hsted m Artlcle 40 (Hohdays), he/she shall be credited With a rmmmUffi of four (4) hours. Gnevances were filed dlmng the hfe of that collectIve agreement regardmg the Issue of tIme credIts while travelhng beyond normal hours of work (heremafter referred to as "travel credIts" or "travel pay") In November of 1998, the partIes entered mto a memorandum of settlement regardmg ArtIcle 13 of the collectIve agreement. That memorandum stated. In the matter of PEGO's gnevance over the ImplementaTIon of Artlcle 13 Time Credits While Travellmg, the parnes have agreed to the followmg tenus as full and final settlement m respect of all employees whose pOSITIOnS are were m the PEGO bargmnmg umt smce the 1996-1998 ColleCTIve Agreement was raTIfied: 1 Artlcle 13 of the 1996-1998 ColleCTIve Agreement shall be re-worded as follows: 131 Ehgible employees shall be credited for lllirustly-authonzed TIme spent m travellmg (SIC) over and above 36.25 workmg hours per week. 13.2 When an employee IS reqwred to travel on hls/her regular day off or a pmd hohday hsted m Artlcle 40 (Hohdays), he/she shall be credited With a rmmmUffi of four hours. 133 All TIme credits shall be taken as a redUCTIon on a strmght TIme basIS to the employee's workmg hours, at a TIme to be mutually agreed upon, and at the latest by the end of the quarter follOWing the quarter that the travel occurred. 2. In all mmlstnes except for the Mirustry of TransportaTIon, where the Employer has recogruzed an employee's ehgibihty and made an accommodaTIon for the TIme m queSTIon, the Employer IS saved harmless from mterpretaTIon and ImplementaTIon of the 2 pnor wordmg of tlllS Arttcle m ways that dtd not conform to the amended language m paragraph 1 3 Employees who are ehgible for TIme credtts pnor to the date of tlus agreement shall be nOTIfied that they are enTItled to a) a credtt of half a day where no proof of TIme spent IS reqwred (Mimstly of TransportaTIon only), or b) where proof IS presented, a credit the employee and the Mimstly agree to (all rmmstnes), or c) a determmaTIon of the credits owed to that employee by the lllimstly PEGO - Management COffilllittee where agreement under b) has not been acmeved. d) All credits taken Wltlun twelve weeks of the date of nOTIficaTIon, so schedulmg shall take operaTIonal conSIderaTIons mto account. 4 Tills IS a full and final settlement of PEGO's asSOCIaTIOn gnevance. Any and all gnevances relatmg to the mterpretaTIon or ImplementaTIon of tlus Arttcle pnor to the Slgnmg of tlus settlement are Wlthdrawn. 5 Employees retam the nght to gneve to detennme ehgibihty, e.g. whether travel IS an mherent part of theIr pOSITIOn. If successful, the gnevor shall be ehgible for the settlement m paragraph 3 The gnevor shall conTInue to record clmms until the gnevance IS resolved. 6 By March 31, 1999 at the latest PEGO shall be nOTIfied of the Employer's determmaTIon of whether or not pOSITIOnS are ehgible for TIme credits while travellmg (SIC) m the Mimstnes of TransportaTIon, MumClpal Affmrs and Housmg, and Ontano Clean Water Agency The partIes mserted artIcle 13 as set out above mto the present collectIve agreement Subsequent to the sIgmng of the above memorandum of settlement a large number of chsputes arose regardmg whether certam PEGO members workmg m the MinIStry of TransportatIOn were "ehgible" for the travel allowance proVided by artIcle 13 1 and 13.2 At the hearmg, It was common ground that the gnevances mIght have dIffenng results That IS to say that It IS possible for some grIevances succeed wIllIe others fail. Accordmgly, the partIes agreed that I would hear four speCIfic fact SItuatIOns 3 and Issue a deCISIOn that hopefully would provIde guIdance to the partIes allowmg them to resolve the other outstandmg matters The Employer's posItIOn IS set out m a letter It sent to Mr DavId Manmng, one of the gnevors, dated March 30, 1999 It stated. Further to the Agreement between PEGO and the Employer dated November 20, 1998, thIS IS to adVise that the lllimstly has detenmned that travel IS mherent to the work of your pOSITIOn. Consequently, your pOSITIOn IS mehgible for TIme credtts while travellmg (reference Term 6 of the Memorandum of Agreement). SpeCIfic to your pOSITIOn, some examples of travel to perform the dUTIes of your pOSITIOn are to attend meetmgs With Mimstly staff m Queen's Park, RegiOns and DIStnCt and to attend meeTIngs With extemal stakeholders. Such travel may also mclude field SIte ViSItS. Travel IS also reqwred for trammg seSSiOns and conference/selllinar attendance. Although It has been detenmned that your pOSITIOn IS mehgible for travel TIme credits, there may be occasiOnal CIrcumstances where the nature of travel differs from that travel IS mherent to the nmcTIon of your pOSITIOn. These types of tnps will be reViewed on a case by case basIS With your supeMsor If you have any queSTIons or concems, please do not heSItate to contact me In large measure, the partIes agreed on the facts Each of the gnevors gave addItIonal eVIdence, but It IS faIr to say that there was no SIgnIficant dIspute regardmg the facts I will set out the facts that were agreed and the relevant Vlva voce eVIdence Ms. Mana BIaDChm 1 Ms BIanchm IS a Concrete Engmeer at the PBE 8 Level, workmg out of the DownsVlew Complex m the Matenals Engmeenng and Research Office 2 The maJonty of her work IS related to supportmg the constructIOn prograIll Her dutIes mvolve momtonng concrete constructIOn and repaIr actIVItIes to ensure conSIstency With speCIficatIOns, advIsmg regIOnal staff, 4 IdentIfymg any problem areas or qUalIty Issues that would reqmre changes m specIficatIOns In the wmter months, most of her work IS m DownsvIew, With occasIOnal travel to St Catharmes, regIOnal offices and to conferences and semmars 3 Dunng the summer months, she travels from tIme to tIme to work sItes to mvestIgate, observe, or momtor a varIety of constructIOn projects She may VISIt more than one sIte on any gIven tnp In some cases the work mvolved IS durmg the evemng, mght or weekends, e g dunng a concrete pour 4 In her case most of the travelmvolved IS to work sItes TIns travel was mostly WItlnn the Central, Southwest and Eastern regIOns of the provmce Some of tlns travel takes place outsIde nonnal workmg hours 5 A hst of her recorded tune for the penod from June to September/99 IS attached together With the relevant tune sheets Travel outsIde nonnal hours of work IS generally recorded on these tune sheets Travel regularly occurs durmg nonnal hours of work. 6 She mnnally uses her own car, but on occaSIOn will use a mImstry velncle In most cases, she travels alone 7 She receIved a sImilar letter to the one sent to Mr Manmng and filed a gnevance Ms BIanchm testIfied that VIrtually all of her travel for the penod June to September of 1999 hsted was outsIde of nonnal workmg hours and for VISItS to varIOus work sItes Most travel was from her home to a work sIte and return to her home She usually has some eqmpment With her mcludmg a cell phone, dIgItal camera, hard hat, flashhght, safety boots and occasIOnally a lap top computer In her cross-exammatIOn she conceded that travel was necessary to perfonn certam aspects of her work. Further, she agreed that momtonng constructIOn sItes was a core part of her summer work and that she could not perfonn that work If she dId not travel 5 Ms. Lynda Boyd 1 Ms Boyd IS a GeoteclmIcal Engmeer, Soils at the PBE 8 Level, workIng out of the Northern RegIOnal Engmeenng Office, OperatIOns DIVISIOn m North Bay 2 In that posItIOn she IS responsible for Pavement Management (revIew of the road system and development of an appropnate rehabIhtatIOn strategy) and Project Management (Innng and selectIOn of consultants to do field mvestIgatIOns, pavement selectIOn and desIgn) She supervIses some staff who do field work and deals With problems that anse m constructIOn. 3 She IS responsible for an area whIch mcludes 4700 km of hIghways m the Northern regIOn extendmg from Elhot Lake m the west on Highway 176, Hornepayne Highway m the north on Highway 11, the Severn RIVer m the south along Highways 11 and 400 and Chalk nver m the east along Highway 17 4 Travel IS reqmred for the purpose of meetmgs, most of wInch take place m the Toronto area. The meetmgs are mostly With VarIOUS MIO commIttees and usually take place m the DownsvIew complex. In some cases, Ms Boyd attends meetmgs m the place of her supervIsor, the Head of Geotechmcal 5 OccasIOnally, there are sympOSia (bramstonnmg seSSIOns on varIOUS Issues) and trammg seSSIOns, whIch usually take place m the Toronto area. 6 Ms Boyd would nonnally make one such tnp to Toronto per month on average The tnps are usually for 1 or 2 day meetmgs There are VarIOUS travel optIOns available to her, however she would mostly dnve, usmg eIther a Mimstry velllcle whIch IS available about 50% of the tnne, her own velllcle, or a rented one She would normally travel alone 7 Travel to attend these meetmgs occurs both wItllln and outsIde her normal hours of work. 6 8 ApproxImately 40% of her travel would be project sIte specIfic, to examme a problem anywhere m the Northern regIOn, such as a constructIOn problem, or a slope failure (sIde of a road falhng down), etc She would go to the sIte, make an assessment and decIde whether any further mvestIgatIOn IS reqUIred. The other 10% of her travel would be m connectIOn wIth her Pavement Management functIOn, whIch mcludes mspectmg/observmg sectIOns of pavement from a movmg or statIOnary velllcle 9 There would normally not be any such trIpS dunng the wmter months (Dec - Mar ) but from April to November she would have one or two such tnps per month. The shorter tnps would nonnally take place WIthm nonnal hours of work. However, the longer tnps may reqUIre some amount of travel outsIde of nonnal hours of work. These tnps could take her anywhere m the Northern regIOn. For example, It'S about an 8 hour dnve from North Bay to Hearst 10 For sIte tnps, she would nonnally take some eqUIpment wIth her, such as a straIght edge to look at ruts, a smart level, a rod for depth of rock falls, a cham, a computer, some pamt, safety eqUIpment, and a camera. 11 Part of her Job responsibIhtIes reqUIres that she observe and remam VIgilant of pavement condItIons dunng any road trIp On the longer sIte VISIt tnps, she would typIcally VISIt a nUInber of sItes on one trIp 12. If Ms Boyd does not travel, she will be unable to cany out the pnmary dutIes of her Job as a GeoteclmIcal Engmeer, Soils 13 A hst of her recorded travelm 1999 IS attached, together With monthly tune sheets 14 She receIved a sImilar letter to Mr Mannmg and filed a gnevance Accordmg to Ms Boyd, approxImately fifty percent of her claIm results from travel to and from Toronto, most of whIch m dunng the evemng hours She estImated that about five percent of her travel IS outsIde nonnal workmg hours In cross-exammatIOn she agreed that she must travel sometImes m order to do her Job and she estImated that she IS out of the office two days 7 per week. There was some dIscussIOn about why Ms Boyd always dnves to Toronto rather than flymg It was her understandmg that It was expected of her to take the most economIcal travel optIOn. Mr Mantha IS Ms.Boyd's supervIsor and he was of the VIew that the restnctIOns on travelhng were that travel should be Via the most practIcal and economIcal method. Further, he was unaware of any pohcy that mdIcated such travel was to be Via automobile However, he could not contradIct that she was once told to use a car for travel to Toronto Mr Dan Conte 1 Mr Conte IS a Semor Structural Engmeer at the PBE 8 level out of the DOWllSVIew complex m the Structural Engmeenng SectIOn of the Central RegIOn Engmeenng OffIce 2 He IS responsible for the management of VarIOUS pre-engmeenng and haIson on constructIOn projects, mcludmg makmg recommendatIOns With respect to the hInng and selectIOn of consultants, and revIewmg theIr work on an ongomg basIs These projects deal almost exclusIvely WIth structures, mcluchng bndges, culverts, retaImng walls, and lngh mast hghtmg foundatIOns 3 He also admImsters the work of consultants who do detailed structural condItIon surveys, whIch are done to assess the condItIon of a structure, and to determme the appropnate methodology of any repair reqmred. 4 Part of Ius responsibihty IS to do routme mspectIOn of bndges and other stnlctures Over the course of a year, he will observe approxImately 50 such stnlctures 5 A sIgmfIcant portIOn of hIS travel IS for the above mspectIOn of structures He would normally make about 7 tnps per year, and on each tnp would carry out a VISUal assessment of between 5 and 9 structures WhIle he generally travels dunng normal hours of work, on rare occaSIOns, he may 8 also travel outsIde those hours Mr Conte may also VISIt more than one constructIOn sIte on the same tnp 6 Much of Ins travel IS m the Niagara RegIOn, and most would be day trIpS For the above vIsual mspectIOns of structures, usually two engmeers would travel together Mr Conte could eIther be the dnver or the passenger 7 Mr Conte also SItS on a number of commIttees (e g Beanngs CommIttees, and Bndge Management Systems CommIttee) At these meetmg'), he would typIcally meet WIth other mImstry employees, and sometImes consultants, m St Cathannes These meetmgs nonnally take place once or twIce a month, and they may last for several full consecutIve days He would nonnally elect to commute home a the end of each day whIch IS less costly to the mImstry than staymg overnIght m St Cathannes 8 On rare occaSIOns, he may be also be reqUIred to travel outsIde of nonnal hours of work for emergency sItuatIOns, e g where a crack IS dIscovered m a structure In one case he was recently reqUIred to mspect such a structure on a Sunday, and spent three hours domg so 9 OccasIOnally, he IS also reqUIred to travel for sIte VISItS or for courses and semmars 10 ASIde from the mspectIOn trIpS described m paragraph 5 and 6 above, he would nonnally travel alone He also nonnally uses Ins own velncle and the expenses mcurred are charged back to the mImstry In some cases, If a mImstry velncle IS available and It'S convement, he may use a mImstry velncle for the mspectIOn trIpS 11 On the mspectIOn trIpS described m paragraph 5 and 6 above, he would normally have more than one stnlcture to mspect on a gIven tnp, and would travel from one structure to the next 12. He receIved a snnilar letter to Mr Manmng and filed a gnevance In hIS case, there IS no specIfic claun for travel tune wInch has been demed m 1999 He sImply gneves because he receIved the letter declanng l111n mehgible for tIme credIts while travellmg. 9 Mr Conte testIfied that he spends approXImately nInety percent of Ius tune m Ius office He made seven day tnps m 1999 When he makes Ius mspectIOn tnps he travels With another teclmIcal employee Once at the sIte, he would Issue mstructIOns regardmg the work needed to be done at that tune, however, he does not supervIse that employee In cross-exmmnatIOn he testIfied that he travelled m excess of 4000 kilometers dunng the penod April of 1999 and February of2000 Mr David ManDlng 1 Mr MannIng IS a ConstructIOn Engmeer at the PBE 10 level, workmg out of the mInIstry's head office m St Cathannes 2 In that posItIOn he IS responsible for the recommendatIOn of pohcIes through wInch the mInIstry's CapItal Program IS dehvered, whIch covers some $500 milhon annually m constructIOn projects across the prOVInce 3 His regular place of work IS at Ins office m St. Cathannes 4 The maJonty of hIS travel IS for meetmgs whIch take place outsIde of St. Cathannes From tIme to tIme he has meetmgs With Industry ASSOCiatIOns such as the OntarIO Road Builders ASSOCiatIOn and the Ready Mix Concrete ASSOCiatIOn of Ontano, both of whIch are m MissIssauga. 5 He also has meetmgs at the DOWllSVIew Complex from tIme to time With Ius colleagues m the mInIstry, or meetmgs at Queen's Park to see the AssIstant Deputy MinIster 6 He also meets monthly wIth the 5 RegIOnal Managers of ConstructIOn. These meetmgs are usually held at DOWllsvIew, but can be elsewhere He may attend at regIOnal spnng constnlctIOn meetings m each regIOn. 7 From time to time he also attends at meetmgs and conferences whIch are held outsIde the provmce (e g ChIcago and Washmgton) He attended one course on Value Engmeenng m 1999, wluch was held m North York. 10 8 As part of Ius Job responsibihtIes he IS reqmred to reVIew apphcatIOn of new teclmologIes, mvestIgate concerns/problems and to momtor effectIveness of pohcIes and procedures 9 A hst of Ius recorded travel from January to July 1999 IS attached, together With five of lus monthly time sheets Mr Manmng's supervIsor sIgned the May and July 1999 tune sheets Management has not sIgned the ones from January to March 1999 Tune sheet for April and June/99 are not mcluded. 10 He nonnally uses Ius Owll car for travel, but he may also use pubhc transportatIOn mcludmg Go Tram. His trIpS to the Umted States are by air In most cases he travels on Ius Owll, but on occaSIOn he may get a nde wIth someone or gIve someone a nde 11 On March 30/99 he receIved a letter from the Employer declanng lum mehgible for time credIts while travellmg. As a result, he filed a gnevance Mr Manmng testified that he spent less than ten percent of Ius tune outsIde Ius office He attended only one work sIte m 1999 and one m 2000 He said that many meetmgs he attended were useful but not essential to Ius work. When he travels he takes whatever paperwork IS necessary for Ius busmess He does not take a cell phone or other Implements UNION SUBMISSIONS Mr Robbms, for the ASSOCiatIOn, remmded the Board that the grIevances outhned above are representative of many filed by other engmeers It IS hoped that the four mstant fact sItuatIOns are vaned enough to allow the Board to make a decIsIOn that will provIde sufficIent gmdance to the partIes as to when, If ever, transportatIOn allowance IS to be paid. Clearly thIS IS a fundamental dIsagreement between the partIes There IS presently no Junspnldence regardmg tlus matter at the Board from the PEGO collective 11 agreement However, the matter of overtIme versus travel pay has been consIdered by the Board for members of the Ontano Pubhc ServIce Employees' Urn on m a varIety of CIrCUlnstances In the collectIve agreement at hand, artIcle 9 contemplates hours of work Without any reference to payment of overtIme, eIther m money or m compensatIng tune off m heu of compensatIOn. TIns fact IS Important and It IS a sIgnIficant dIstmctIOn between tlns collectIve agreement and the collectIve agreement for OPSEU employees These grIevances all result from the partIes' chsagreement concernmg whIch employees are "ehgible" for the transportatIOn allowance It was the Urnon's posItIOn that artIcle 13 has cntena. FIrst, the tune spent must be authonzed. Second, It has to be m excess of 36.25 hours m a week. Fmally, entItlement IS only for "ehgible" employees The partIes addressed the Issue of ehgibIhty when they settled gnevances filed under the first collectIve agreement The partIes stated at paragraph 5 of tlle memorandum of settlement resolvmg those gnevances Employees retam the nght to gneve to detennme ehgibihty, e.g. whether travel IS an mherent part of theIr posItion. If successful, the gnevor shall be ehgible for payment under paragraph 3 The gnevor shall continue to record clalms until the gnevance IS resolved. The memorandum of settlement SIgned m November of 1998 clanfied a number of matters regardmg travel credIts However, they failed to agree on what constItutes an "ehgible employee" The ASSOCiatIOn urged tllat ehgibihty must be mterpreted m a purpOSIve manner that makes sense m tenns of tlns bargammg urnt It must be read so as to proVide a meamngful benefit The 12 Employer's posItIOn would render the artIcle wIthout benefit because vntually every bargammg umt member would be dIsentItled. Indeed, presently the Employer pays tlus allowance only to employees who VIrtually never travel It makes no sense that the partIes would msert a benefit that no one would receIve It was conceded by Mr Robbms that It IS dIfficult to ascertam what the partIes meant m the wordmg of the memorandum. If work IS Itself the travel to the extent that It cannot be dIstmgUIshed from travel then It IS mherent However, there IS a dIfference when travel IS done to get to the work. That IS the case m the mstant matter The most ObVIOUS example of tlus would be a bus drIver In that mstance, the work and the travel cannot be separated. In these gnevances we know that tlle work IS engmeenng work, not travelhng It IS true that the gnevors have to travel because they are gomg to a semmar or there IS work to do at a locatIOn other than tlleIr office In all of the eVIdence provIded, the travel was not the work at hand but the means of gettmg to tlle work to be done The Umon rehed upon tlle Random House Unabndged 2nd EdItIOn DictIOnary that defines "mherent" as "eXIstmg m someone or somethmg as a pennanent and mseparable element, quahty or attribute" The attribute has to be part and parcel of the posItIOn so as not to be able to separate out the travel That IS not the mstant case Here the gnevors are professIOnal engmeers There IS no dIspute that they have to travel to enable them to perfonn some aspects of theIr Jobs However, It B not the essence of theIr 13 work, but mCIdental to the work. That dIstmctIOn must find tlus Board to allow the gnevance Witll tllat defimtIOn m mmd, a reVIew of the eVIdence IS helpful Ms BIanchIll traveled more than tlle other gnevors but her travel was confined to the summer months, III large measure She traveled to constructIOn sItes to reVIew the work bemg done by outsIde contractors Her work was not travehng to those sItes Rather, her work was perfonned after she arnved at her destmatIOn. Ms Boyd works m a regIOnal office and travels to VarIOUS work sItes and to Toronto for regular meetmgs All of her clauns for travelm 1999 were for her travehng to Toronto Mr Conte travels less tune than other engmeers His smgle claun was for tune spent travelhng to a work sIte on a Sunday Fmally, Mr Mannmg has vIrtually no sIte VISItS dunng the course of Ius employment HIS travel IS for meetmgs held at the head office and other locatIOns It IS sImply ludIcrous to suggest that any of these engmeers are domg work durmg theIr travels It was conceded by the ASSOCiatIOn that Ms Boyd who IS responsible for pavement management sometImes uses her vehIcle to observe the qUalIty of the pavement. However, the travel needed to take her to the area of pavement that she will observe IS not mherent to her work. The ASSOCiatIOn provIded me wIth re The Crown III RIght of Ontano (Ministry of CorrectIOnal Services) and OPSEU (Dymond) (April 19, 1983), unreported (Roberts), re The Crown III Right ofOntano (Mimstry of TransportatIOn and CommunicatIOns and OPSEU (Fawcett) (May 1, 14 1984), unreported (Draper), re The Crown III RIght of Ontario (Ministry of CorrectIOnal Services) and OPSEU (Buchanan) October 29, 1980), unreported (Kennedy), re The Crown III RIght of Ontario (Ministry of CorrectIOnal Services) and Cowie (May 3, 1979), unreported (Adams), re The Crown III RIght of Ontario (Ministry of TransportatIOn and CommunicatIOn and OPSEU (Eaton) (July 12, 1984), unreported (Samuels), re The Crown III Right of Ontario (Mimstry of TransportatIOn) and OPSEU (Churchill) (April 22, 1988), unreported (Spnngate), re The Crown III Right of Ontario (Ministry of Consumer and CommercIal RelatIOns) and OPSEU (Wang et all (August 7, 1991), unreported (Samuels), and re The Crown III RIght of Ontario (Ministry of TransportatIOn and CommunicatIOns) and OPSEU (Tomasllll) (July 6, 1978), unreported (Adams) Mr Robbms suggested that the Board's Junsprudence for the members of OPSEU IS helpful and can be taken mto account but must be consIdered m context Members of OPSEU are entItled to overtIme at the rate of tune and one half for hours worked m excess of theIr nonnal hours There IS also a travel allowance provIded m theIr collectIve agreement Much of the Junsprudence consIders whIch of these two allowances IS appropnate m certam cIrcumstances In most mstances, OPSEU members were gnevmg that they were entItled to overtIme and not travel pay that IS compensated at a lessor rate However, It IS fair to say that gnevors receIved eIther travel tune or overtIme 15 The Dmon urged me to find that notlung turns on the Issue of the velucle's ownershIp, whether eqUIpment was m the gnevors' posseSSIOn, whether the gnevor was alone or what Issues were dIscussed dunng the tnp If s/he was accompanIed by another person EMPLOYER SUBMISSIONS Ms Burke, for tlle Employer, suggested that m detennImng tlle Issue of ehgibihty tlle Board must look to the fifth paragraph of the MemorandUIn of Settlement for guIdance That provIsIOn, m part, states, "employees retam the nght to gneve to detennme ehgibihty, eg whetller travel IS an mherent part of theIr posItIOn" Therefore, the relevant consIderatIOn IS whether travel IS mherent to the work of the gnevors The agreed facts and eVIdence clearly reveal that travel IS sIgnIficant and essential Accordmgly, the gnevances must be demed. The Employer asserted that travel IS an mtegral element of the grIevors' work. A reVIew of the defimtIOn of "mherent" that was [fovIded by the Dmon IS helpful There can be no doubt after consIdenng the agreed statement of facts and the eVIdence that travel IS a "pennanent and mseparable element" of the engmeenng work at Issue Mr Manmng testified that If he dId not travel he would not be as effective Ms Bmclun's eVIdence was clear that many of the core duties of her work reqUIred travel Ms Boyd testified that she travels one to two days per week. Tlus represents a sIgnIficant percentage of her tune and It must be very apparent that travel IS mherent m what she does Fmally, Mr Conte testified 16 that he IS responsible for many bndges around the provmce In order for hun to perfonn that fundamental aspect of Ius work he must travel Mr Conte travelled 4260 km m a en-month penod. Agam, tlus IS so SIgnIficant that It must be seen to be mherent to the posItIOn. Indeed, all of the gnevors' eVIdence mdIcated that travel IS an mseparable component of theIr work. In support of ItS posItIOn the Employer provIded re The Crown III RIght of Ontano (Mimstry of Government Services) and OPSEU (Anwyll) (January 19, 1994), unreported (Samuels), re The Crown III RIght of Ontano (Ministry of TransportatIOn) and OPSEU (Churchill et all (April 22, 1988), unreported (Spnngate), re The Crown III Right of Ontano (Ministry of TransportatIOn and CommunicatIOns and OPSEU (Clements) (June 11, 1984), unreported (Samuels), re The Crown III RIght of Ontano (Ministry of Labour) and OPSEU (EllIOt) January 4, 1991), unreported (DIssanayake), re The Crown III RIght of Ontano (Mimstry of Revenue) and OPSEU (Gabnel et all (November 10, 1993), unreported (Fm1ey), re The Crown III RIght of Ontano (Ministry of Environment) and OPSEU (McColl) (July 12, 1993), unreported (Fm1ey), re The Crown III RIght of Ontano (Mimstry of Environment) and OPSEU (Malette) (July 5, 1988), unreported (Forbes-Roberts), re The Crown III RIght of Ontano (Mimstry of TransportatIOn) and OPSEU (Rutherford) (August 21, 1990), unreported (Keller), re The Crown III RIght of Ontano (Ministry of Labour) and OPSEU (Wnght) (June 18, 1990), unreported (FIsher) 17 Ms Burke suggested that the language of the OPSEU collectIve agreement vIrtually mrrrors the mstant agreement and therefore that body of JUrIsprudence IS of much ffisIstance TIns IS partIcularly true of those cases that consIder gnevances filed by employees who were " schedule 6" employees The Board has estabhshed a two-part test m detennmmg the Issue of whether travel pay IS owmg ThIS test can be found at Gabriel (supra), at page 12 The Gnevance Settlement Board Junsprudence has arnved at two cntena to be used m determmmg whether tlme spent travellmg outsIde normal workmg hours IS work. These are 1 Travel dunng the employee's regular hours or work must be an mherent part of hIS or her Job, and/or 2. There must be a contlnwng responsibihty on the part of the employee dunng the penod of travel to care for eIther Mimstry property or personnel. ThIS Board accepts the conclUSiOn m the Wnght DecISIon, that only one of these cntena need be satIsfied for the tlme spent to be conSIdered work. (emphasIs not mme) It was later stated at page 14 of the Gabriel deCISIOn The evaluatlon of responsibihty to the Employer for MinIStry property dunng tIme spent travellmg must take mto account the level of responsibihty, and asSIgnment of the responsibihty It IS the lmkmg of the posseSSiOn of the property to the asSIgnment of responsibihty wmch must be evaluated to detennme whether or not, and f so, to what degree, the posseSSiOn of Mimstry property creates a responsibihty m the employee to the Employer winch m ItS turn constltutes work. The slgnmg out of a Mimstry vemcle, the dnvmg of such a vemcle and the supeMSlon of personnel have all been found to create a responsibihty to the Employer and consequently to be work. The ongomg posseSSiOn and use of a Mimstry vehIcle have been distmgwshed from the tlme-Illmted use of a vemcle for speCIfically asSIgned dutles. The value of the property has not been a determmmg factor The computers are, m the opmlOn of tlns Board, m thIS sltuatlon, analogous to the "company car" sltuatlon. They do not create a responsibihty whIch can be charactenzed as work. The Employer dIrected the Board's attentIOn to the Churchill deCISIOn that estabhshed when a gnevor travels With another employee they are not responsibihty free Each of the gnevors m the mstant matter occasIOnally 18 travel wIth others It IS not necessary to find that the gnevors are responsible for the supervIsIOn of those they travel wIth m order to find that the travel IS work. In closmg, the Employer agreed wIth a conjecture made by Mr Robbms that the affect of ItS posItIOn IS that only four or five of the members of the entire PEGO bargall1lllg urnt will be elIgible for travel pay In reply, the ASSOCiatIOn stated that the Issue of elIgibilIty IS narrow It depends on whether the gnevors meet the reqUIrements of the collective agreement The two-part test relIed upon by the Employer makes no sense m these CIrcumstances because there will never be an mstance when a member of the bargammg umt IS Without some mImstry eqUIpment The partIes chd not agree that the two-prong test as the appropnate consIderatIOn. It must be remembered that the OPSEU junsprudence was establIshed With Boards detennImng whether employees should receIve travel payor overtIme In the mstant case, tlus Board will decIde between travel pay and no compensatIOn or credIt of any sort That context IS essential to the Board's detennmatIOn. DECISION ThIS Issue for thIS Board to determme IS whether time spent travellIng outsIde the regular hours of work for the gnevors attracts the travel credIts as provIded at artIcle 13 of the collective agreement. All of the jlIDSpnldence provIded flows from the collective agreement between the Employer and 19 Ontano Pubhc ServIce Employees Umon. While that case law IS mterestmg, and I will turn to It shortly, I agree With the Umon that It IS Important to remember that there are some fundamental and Important dIstmctIOns between the two collectIve agreements The first chfference IS that the "nonnal hours of work" are "a mImmum of 36 'l4" m tlus collectIve agreement, while m the OPSEU collectIve agreement hours are specIfically quantIfied for all employees except those classIfied as "schedule 6" employees The second dIfference IS that for members of the OPSEU bargammg umt there IS a provIsIOn for overtIme to be paId at premmm rates for all hours spent outsIde regular workmg hours for employees other than "schedule 6" employees OPSEU members, mcludmg schedule 6 employees are also entItled to travel pay m certam CIrcumstances The JUrIsprudence must be read m tlus context Generally speakmg, the GSB decIsIOns are a consIderatIOn of whether the work at Issue IS properly "overtIme" or "travel pay" m a vanety of dIfferent fact sItuatIOns Certamly overtIme IS a more lucratIve premmm than travel pay, but travel pay attracts a fonn of compensatIOn that would not otherwIse be owmg to the employee One of the leadmg cases at the Gnevance Settlement Board that contemplated the Issue of travel pay was Anwyll (supra) almost twenty years ago That decIsIOn consIdered whether the gnevor, a FIfe Alarm MechanIc, was entItled to overtIme or travel pay for tIme he spent travelhng outsIde hIS regular workmg hours In that case the gnevor spent one thud of hIS regular workmg hours travelhng from one Job sIte to another He always used a 20 Mimstry velucle that was "specIally eqmpped and stocked" Mr Anwyll had actually worked four and a quarter hours of tune beyond Ius regular hours of work and he was paid overtIme for the first three and a quarter hours He receIved travel pay for the last hour that was spent travelhng home He argued that he should have receIved overtIme for the entIre penod. It was the Employer's posItIOn that overtIme was not appropnate because the gnevor was not dnvmg and so was "responsibihty-free" The Board decIded that the gnevor was entItled to overtIme pay It was Said, at page 6 In our Vlew, tlns Junsprudence leads to the conclUSiOn that, m pnnclple, the Issue of whether an employee IS entltled to overtlme payor travel pay depends on whether or not the errployee IS undertakmg responsibihtles dunng the course of the Joumey And tlns would accord With the collectlve agreement. Artlcle 13.2 defines "overtlme" as a "penod of work" Under Artlcle 23 1, travel tlme IS spent travellmg "when authonzed by the lllimstly" In each partlcular case, the Issue becomes what IS the "work" of the employee mvolved. However, we have no doubt that the gnevor here, even though a passenger, was still at work from Sarma to London on Apnl 7, 1983 We have come to thIS conclUSiOn for a number of reasons: a) Travel IS an mherent part of the gnevor's Job While hIS Job descnptlon does not refer expressly to travel or dnVlng Mimstly veillcles, It IS obVlous that he can't perform any of the functlons mentloned unless he does travel. He cannot fulfil (SIC) the purpose of hIS posltlon Without gomg from place to place m a specIfically eqwpped and stocked veillcle. Indeed, the gnevor's uncontramcted eVldence that he travels one- tlnrd of ills regular workmg hours. b) Whether dnVlng or not, the gnevor IS clearly responsible to the Mimstly for the vehIcle and ItS contents. Whether dnVlng or not, the gnevor bears a certam responsibihty to get the veillcle back safely If the gnevor was a passenger and the dnver had a heart attack, obVlously the gnevor would have to get the vehIcle back to headquarters. At a gas statlon, or a coffee stop, the gnevor would have equal responsibihty to see that the vehIcle and ItS contents were safe. Surely the Mimstly would not want he gnevor to relax and turn a blmd eye "because he wasn't at work any longer, he was "responsibihty- free" His responsibihty would contlnue until the veillcle, eqwpment and parts were safely returned. 21 It IS one thmg to be travellmg on pubhc transport or m one's own vehIcle, when there IS no responsibihty towards the employer It IS another to be travellmg m a Mirustly vehIcle, engaged on the employer's busmess, domg a necessary part of one's Job, and havmg a measure of responsibihty for the employer's property In the latter case, one would expect that normally the employee IS still "at work" and enTItled to overtlme pay The gnevor was not a passenger m a chauffeur-dnven vemcle, where the chauffeur bore the sole responsibihty for the vehIcle. He happened to be the passenger, but he was part of a two-man team at work With a vehIcle necessary to the work, and both men had a measure of responsibihty for the vemcle and ItS contents. The Employer was ordered to pay the grIevor the dIfference between the overtIme that he was entItled to and tlle travel pay that he was InItIally paId. It IS mterestmg to note that the Board found travel was an mherent part of the grIevor's Job because "It IS ObVIOUS that he can't perfonn any of the fimctIons mentIOned unless he does travel" (emphasIs mme) It was also Important to the deCISIOn that the velncle the gnevor used was "speCially eqmpped and stocked" and that VIrtually none of hIS work could be performed WIthout travel Such IS not the case m the case at hand. In the mstant matter, the Employer also argued that I should apply two tests An analYSIS of the JlIDspnldence m that regard was undertaken by VIce ChaIr FIsher In Wnght (supra), the gnevor was an OccupatIOnal Health TechnIcIan. The tnne clanned by the gnevor occurred while he was travelhng by a pubhc carner and was therefore "responsibihty - free WIth respect to government eqmpment under hIS care" In ItS analYSIS the Board stated, at page 1 Both parnes agree that the Board has apphed two tests to determme whether or not an employee IS "workmg" or "travellmg" Withm the tenus of the ColleCTIve Agreement. 1 Is travel dunng the employee's regular hours of work an mherent (i.e. substanTIal) part of her Job? In thIS case, the answer IS "yes" 22 2. Is there a contmwng responsibihty on the part of the employee dunng the penod of travel to care for MinIStry property (vehIcle, eqwpment) or other personnel (inmates, co-workers)? In thIS case the answer IS "no" The problem here hes m detennmmg the result where the answers to the queSTIons are, as we have here, one "yes" and one "no" Clearly, where the answers are both yes, the TIme IS charactenzed 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 Gnevance Settlement Board cases mvolVing the determmaTIon of whether the TIme was charactenzed as "work" or "travel" Attached as Appendix "A" to tlns deCISIon m an analYSIS of those cases m chart form. The cases With Yes, Yes or No, No give us httle mSlght mto whether the test IS "eIther/or" or "both" However, an exammaTIon of the Yes, No cases should gIve us some mSlght. In Marcotte, the gnevor was responsible for retummg a Mirustry veillcle and hIS co- workers to the place of work. He was held to be workmg even though travel was not an mherent part of the Job SlIDilarly, m Churchill, the dnver of a MinIStry vehIcle canymg co-workers was held to be workmg while the passengers were merely travellmg. In Pileggi, travel was held to be an mherent part of the gnevor's Job and It was therefore work even though he drove hIS own car and carned no MinIStry eqwpment. However, m Fawcett, the gnevor was gIven travel credits when he drove ills own veillcle, even though travel dunng ills regular hours was an mherent part of ills Job However, m Pingue, It was noted that "numerous subsequent deCISIons of the Board clearly depart from that View" It seems that m Fawcett a major conSIderaTIon was that as the gnevor was a Schedule 6 employee and If the TIme was charactenzed as work he would not have been pmd for It, as Schedule 6 employees do not eam overtIme. In the case before us, the gnevor IS compensated for overtIme If hIS accumulated hours exceed 1885 per year Also m Eaton, the gnevor appears to have had ills TIme count as travel even though he was dnvmg a Mirustly veillcle. Eaton was wntten by Vice-Chmr Samuels, the author of Anwyll, Stahl and Clements, which are the cases most often CIted by the later deCISIons. Eaton lllight seem dtsTIngwshable on ItS facts because although the gnevor was responsible for a Mirustry vehIcle, he neIther carned any passengers or eqwpment. 23 However, m Stahl, Samuels charactenzed the TIme as "work" even though the gnevor had no passengers nor was he canymg any Mirustry eqwpment, but travel was an mherent part of ills Job We see, therefore, to have a clear spht m the cases, With three of the cases seemmg to say that both elements are necessary m order for the tIme to be charactenzed as work and two cases whIch seem to say that If eIther element IS present then It IS work. WhIch then IS the Board to choose? It cannot be smd that eIther lme of cases IS patently wrong, nor will the outcome of thIS case "hann" eIther the employee or the Uruon because each of the parnes roUTInely sWitch SIdes dependmg on whether or not the mdiVldual gnevor will benefit. Some gnevors deSIre overtIme, other want travel TIme, dependmg on theIr mdiVldual schedule classIficaTIon. Certmnty m labour relaTIons IS an Important goal. SomeTImes, It IS more Important to have a clear and defirute deCISIon, one way or another, rather than to conTInue a senes of confusmg and contramctOlY arbItral deCISIons. If the parnes want to change the rules, they do so at the bargmnmg table, but at least they should a clear understanmng, where possible, of what the rules are today ThIS Board therefore determmes the appropnate rule should be as m he Marcotte, Pileggi and Churchill cases, m other words, that the TIme IS properly charactenzed as "work" If eIther a) travel dunng the employee s regular hours of work IS an mherent part of hIS Job, or, b) there IS a contmwng responsibihty on the part of the employee dunng the penod of travel to care for eIther Mirustty property or other personnel. VICe ChaIT FIsher referred to the Fawcett deCISIOn and noted that "a major conSIderatIOn was that as the gnevor was a Schedule 6 employee and If the tune was charactenzed as work he would not have been paid for It, as Schedule 6 employees do not earn overtIme" A reVIew of the Fawcett deCISIOn IS useful The gnevor was a QUalIty Assurance Officer WIth the Mimstry of TransportatIOn and responsible for concrete InSpectIOns He VISIted plants and constructIOn SItes From the penod November to March, 24 thIrty eIght percent of Ius tune was spent In the field and nInety-eIght percent of the tune dunng the rest of the year It was saId at page 9 It IS Important to note that thIS IS not a case m winch the Issue IS whether an employee, who IS ehgible for both, IS enTItled to pay at the overtlme rate or compensatmg leave under Artlcle 13, or to credtts for TIme spent m travellmg under Artlcle 23 Here they are not available as altemaTIves; under artlcle 13 the Gnevor IS not ehgible for overtlme pay or compensaTIng leave m any CIrcumstances, and IS ehgible for eqwvalent TIme off only, for work performed on a day off We see no authonty m the colleCTIve agreement for the charactenzaTIon of TIme spent by the Gnevor m travellmg as overtlme work. And later at page 13 Under the present praCTIce the Gnevor IS already pmd for TIme spent m travellmg on days off and on hohdays, smce the Employer classifies It as "work" The pracTIcal effect of tlns deCISIon, therefore, IS that the Gnevor IS also ehgible for credtts for TIme spent daily dunng hIS normal work week m travellmg outSIde the greater of 7 1J4 hours or the number of hours actually spent m performmg ills Job dUTIes, when authonzed by the ffillliStly Another deCISIOn that conSIdered "Schedule 6" employees was Wang et al The gnevors were elevator Inspectors and theIr claIms for travel pay ranged from ten to over two hundred hours per year The gnevors travelled In theIr own cars as well as VIa pubhc tranSIt. They carrIed VarIOUS eqmpment, tachometer, measunng tape, safety boots and pagers Most of theIr tIme was spent away from theIr office The Board stated at page 6 Travel IS not ''work'' merely because the employee m queSTIon does a lot of travellmg. Tills IS where the Mirustly went wrong when It changed Its practlce. The Mirustly Issued a bulletm staTIng, among other thmgs, that "when travel IS an mherent part of the employee s Job, travel outSIde of normal workmg hours IS conSIdered work, not travel, and IS compensated as such. ThIS statement obViously comes from the first part of the reasons m Anwyll quoted above (from page 7). But the Board m Anwyll dtd not say that the fact that travel IS an mherent part of an employee s Job IS suffiCient on ItS own to clasSIfy a penod of travel as "workmg hours" The central pomt IS that there must be some Job-related responsibihty dunng the penod of travel. The Board m Anwyll was clear that the gnevor s travel was "work" because of hIS responsibihTIes relaTIng to the Mirustly vehIcle and Its contents. Travelling outside normal hours is not "work", unless during the travel the employee has some responsibility towards the Employer When the gnevors m our case go to Thunder Bay to mspect a SIte, and then, when day 25 IS done, board a commemal mrcraft for the tnp home, they are not "workmg" m any sense of the term while the pilot and crew take them back to Toronto They do not have the responsibihtles that Anwyll had when he had to get ills specIally - eqwpped vehIcle back to base safely And It IS no different If theIr out-of-normal-hours IS on a bus, m a taxi, or m theIr own vehIcles. The gnevors do not have work related responsibihtles dunng thIS transIt. They are not "workmg" dunng tlns tlme. (emphasIs not mme) I found thIS decIsIOn to be the most helpful and persuaSIve SpeCIfically I agree that "travelhng outSIde normal hours of IS not "work", unless dunng the travel the employee has some responsibihty towards the Employer" Indeed, I would go further and say that the responsibihty towards the Employer has to be somethmg more than bemg m posseSSIOn of certam nommal "tools of the trade" I cannot agree wIth the Employer that because travel IS sometImes needed to get to the work, It follows that travel IS mherent to the work. I also concur wIth the above comments that travel IS not work merely because an employee does a lot of travelhng In the mstant case, the Employer IS attemptmg to convert travel from the transportatIOn to and from a locatIOn where work IS perfonned to the actual and real engmeenng work that IS perfonned and I do not tlunk that VIew, once scrutImzed, can be sustamed. Travel tune outSIde nonnal workmg hours IS not work unless there IS a real Job responsibihty that IS bemg dIscharged. Merely transportmg oneself from one locatIOn to another IS not sufficIent The vast maJonty of the travel at Issue m these gnevances IS, as referred to by VIce Chair Adams m TomaslDl, "mcIdental" to pnmary Job dutIes The partIes submItted the Job speCIficatIOns for each of the four engmeenng posItIOns The Employer suggested that a reVIew of tlus documentary 26 eVIdence would reveal that travel IS a sIgmficant percentage of the work. I consIdered that matenal and I must dIsagree One of the pnmary sectIOns of each Job specIficatIOn IS entItled "statement of major responsibihtIes" The number of major responsibihtIes ranged from five to mne for the varIOUS posItIOns None of the four Job specIficatIOns had more than two references to a task that would reqmre travel For example, for semor structural engmeer the second hsted major responsibihty was Inspects and mvestlgates eXistlng structures and prepares mamtenance contract packages by Visltlng sItes, evaluatlng eXistmg conditlons, assessmg capabihty, potentlal usefulness and degree of detenoratlon and defects, reportmg on findmgs and recommendmg correctlve measures, and by desIgllmg repmrs to structures and actlng as a project manager for the preparatlon of constructlon contracts. NotwIthstandmg Ins Job specIficatIOn, It was Mr Manmng's eVIdence that he had only one SIte VISIt m 1999 and one m 2000 The Employer contended that I am obhged to apply the two tests set out m OPSEU JlIDspnldence m determmmg thIS matter Unlike much of that case law, I am not decIdmg wInch of two premnuns properly apply Accordmgly, I am not convmced that an apphcatIOn of the two tests IS necessary to deCIde the matter of travel crechts for members of thIS bargaImng umt I do however have to consIder the first questIOn gIven the wordmg of the November 1998 memorandum of settlement that IS whether travellmg IS an mherent part of the work. In my VIew, thIS Issue IS not a questIOn of law but a questIOn of fact. In my VIew, for the most part, travel IS not an mherent part of the work. The travel merely got the gnevors to theIr work. Accordmg to the eVIdence travel IS not a core duty It IS a means of transportmg the gnevors to and from a worksIte where they perform theIr work. Travel IS an mherent part of the 27 work (and therefore not subject to travel credIts) If there IS an actual component of work bemg perfonned at the same tune The Employer asserted that the fact engmeers carrIed VarIOUS pIeces of eqmpment With them or travelled wIth other employees IS sufficIent reason for the grIevances to fail I tIunk not It IS true that the grIevors have some eqmpment wIth them m theIr cars like safety boots, hard hats or perhaps laptop computers However, tape measures and paper documents m the trunk of eIther a Mimstry velucle or a personal velucle cannot magically change travel mto work. The canymg of Implements IS not adetennmabve cntena for these grIevances I am of the View that If an engineer travels wIth someone they supervIse then the Journey IS work, not travel. However, tIle engineer would have to have actual supervIsory responsibIhty for the passenger, not merely a co-worker they assIgn usual tasks at the worksIte It mIght be useful If I reView the VarIOUS fact sItuatIOns of each gnevors and mchcate If they are successful m theIr claim for tIme credIts resultmg from travel Generally speakmg, as mentIOned above, travel tIme should be consIdered work performed and therefore not ehgible for tIme credIts If there was actual responsibihtIes or tasks dIscharged dunng the travel Mr Manmng's claim was for travel to VarIOUS meetmgs All of that travel should attract tIme crechts He performed no actual work dunng hIS travelhng He dId not work on an assIgnment or conduct busmess on a cell phone He 28 merely travelled to get to Ius work. In my VIew, tlus travel IS clearly mCIdental to Ius work. Ms BIanclun's claim was, m large measure, for travel to work sItes Some of her travel claim was for tune spent travelhng to or from meetmgs As stated above, m my VIew, her work was perfonned at those varIOUS work sItes Travel to those sItes was not "[Erfonnmg work. She was merely gettIng to (and from) her work. She was not responsible for momtonng certam road condItIons dunng that tune nor dId she supervIse employees or perfonn engmeenng duties Accordmgly, her claims are allowed. Ms Boyd IS somewhat chfferent She IS a geotechmcal engmeer WIth clearly specIfied responsibihtIes Accordmg to her eVIdence, Ms Boyd was responsible for pavement InSpectIOns for a large sectIOn of the northern regIOn. She was also responsible for momtonng pavement condItions dunng her travels m her desIgnated area even when that IS not the pnmary purpose of her Journey such as when she IS travelhng to meetmgs held m Toronto That momtonng and responsibihty IS, m my VIew, perfonnmg work. She was actually dIschargmg specIfic and certain duties as an employee while travellmg Therefore, when she IS travelhng outsIde her normal hours by car she would only be entitled to travel credIts when she IS travelhng outsIde her own desIgnated area or at mght when she cannot see the road to dIscharge that responsibihty Her claim IS allowed to that extent. Mr Conte dId not have a specIfic claim, he merely objected to the notion of bemg consIdered mehgible He also testified about certain responsibihtIes for 29 the momtonng of bndges while travelhng m certam areas In that regard, It seems to me that Ius sItuatIOn IS sImilar to that of Ms Boyd. However, any claim he mIght have m the future would be fact dependent The November 1998 memorandum of settlement stated that employees could gneve to "detennme ehgibihty, eg whether travel IS an mherent part of theIr posItIOn" The chctIOnary defimtIOn of "mherent" provIded stated that mherent IS "sometlung as a pennanent and mseparable element, qualIty or attribute" In my VIew, accordmg to the eVIdence I cannot find that travel for these gnevors IS "a pennanent and mseparable element" of the work at Issue While It IS true that they travel to get to theIr work, tlle travel IS not engmeenng wOlk. As charactenzed m some of the earher GSB decIsIOns, the gnevors' travel was, mlarge measure, mCIdental. In the result, the gnevances are allowed to the extent set out above I remam seIzed m the event that there are problems llnplementmg tlllS decIsIOn Dated m Toronto, thIS 18th day of April, 2001 F ehcIty D Bnggs, Vice-Charr 30