HomeMy WebLinkAbout1983-0596.Pool.84-08-15
DEC I S.l,ON.'
..
. liMIt VAN lit:
SETTLEMENT
BOARD
wa CVDA5 STREU \\'1!,~', Ton<"J~ro. O!flNlIO. Jl5G 'lB' !,WIrE mQ
TfL.G~XOHEI 415/~g8' O~8S
596/83
IN THE MATTE~ Or AN A~I~RArlON
under,
T~E CROWN EMPLOYEBS COLL~CTlVE BAR~INING ACT
Before
THE G~IEVANCE SETTLE~mNT aO~RD
netween:
.
OPSEU'(Christopher Pool)
Gr.ievor
- and -
~he crown in Right of ontario
(Ministry of co~reotional, Se~vic~$)
Employe):."
BeforG:~
R.J. Roberts
T.J. Kearney
M. ol'l'oole
, . ,
Vice Chairman
Member
Member
Por the Gr~evo~
I. Roland
Counsel
GO\-/ling & Henderson
Oa~r~GterB & Solioit.ors
For the Employer~
J.P. Denediot
Managa~, statf RelationB
Per~onnel aranoh
Ministry of c~rrectlonal ServiceH
!!.earinc;n,
April 27, 1984
. v'
Neverthele8~, the grlavor claimed that b~cau5e he Was on
truvel status at the POIJ.ce Colle,9'e" in the sense' or being
. ,
absent from home on government business, he W~5 entitled
unde.r
Art i cl e
23
to payment at
his regular'
, ,
hourly rate
for all hours :~om 4J30 p.m. to 11:00 p.m.
.,. I'
''-
.tn a previous Awa.rd oi this Vice-chairman I ~?yd and'
Ministry of Corre ction&.1 ,Services, ,G. S.. B.
Roberts', i.t was sa~d in dictUIll~'
No. 105;a3 ('R,J.
AS to section 17.2.2, there was a submission
by the Employer at th~ hearing that in order to
qua 1 Hy as an lJempl.oyee ... travelling on government.
business" under this 1?t:ovi~ion of the collective
agreement the employee had to be travel1in9 from
pIa ce to place and not stl\ying in one place which
nevEl;rt.heless was dista,nt ~l'om hi s home. We think
this is a strained version of the word "travelling".
The most ~ppropriate interpre~ation of this word
seem5 to us to be one that includea an employee
who .i. s required l)y the 90vernment temporari ly to
locate at a .place distant from his home area, whether
for. 2~ hours or a m&tter of weeks. .... ld. at 6-7.
....-
It wasurqed by the Union on behalf of the grievor th~t upon
the same re.:lsoning the word If travelling II I as used in f'}t'ticle
23, is rnos~ appropriately interpreted a~ re(e~rin9' to the
p~atus of being located at, a place distant from borne.
It
is not,
however,
always possible to take' an
interpretation of a word, within '0"0 .provision
in the
Boyd ca se I Article 17 regarding meal. allowance -- and apply
it wholesale to another ~rovision in which the same word
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m.ight appear. 'The conte;-{t. of 'the, provision Hell might indica.te
th~t. the parties intended to use' th~ . word i!l a different.
sense.
this seems to be the case with respeat. to the use of
the word "t:t:'avclling" in Articles 1'7 and 23. A:ct.ic1e 17 does
not focus l.l.pon the .act of physic~ l. movement.
In Articl.e
17, t.he word "travE"11UJ'lgll appeClrs onlY',onoe, in s.17.2.2.
Unoer s .17.2.2, a.n employee is permitted' to claim the c'ost
of a meal consumed during a. meal period if at the time: he
or, $he was "tra.velling on government business. II', 'X'his. gener~l
ph;r;ase,
"travelling
on
government
business",
does' not
intrinsically provide any b,asis fo~ distinquiGhing between
a meal consumed ~ 10ute and a meal consume~ at the
destination.
No~ doss t.he vording of A~ticle 17 provide
any such basia~
Moreove~t B.17.4( raquiring a $howin~ of
th~ "total cost of mea 1$ for each day, II tends to indica.te
that "the focus 01; $ .17.. 2.2. most likely .:i,s thGl broader onG\
of having the s"tatus of being a.bsent. from home on gove'rnmsnt
bua.f.n~sa.
~:
'rh;l.s is not so wi tn. respeot to Artie,Ie 23. '!'he!' "!~tire
focuv o~ ArticlG 23 appears to be upon
the. physical act
of movement from home to dostination,' and vice-~ersa.. 'For
example, s.23.2 d~als with the method of oalculating time
cred:i t$ when the physical movement of t~e ecmployea is
I?d ~.ld8r: TO 0l0Z 60 'qa.:j
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accomplished by public carr~er.
Articl~ 23.3, provides a
d~eteren~ method of calculati9n of time c4edita where the
employefl uses an automobilQ to move fr::om', e. 9., hi's or hEn'
,0:,-
ho:ne to the destinAtion. ~>Section 4'3 - 4 reliltlves the Minigt.~y
of 'its obl~gation to pay time creoits where the physical
movemen t: , of
the
employee
OCCU:J:S,
in who;l,e or in
pa.rtr
in
, ,
the period of time extending f:J:o[n 11:00 p.m. to the employee's
,
r~9ular start time, so long as sleeping accommodation for
the night in question is provided -- pl:esuroably on the means
of transporta tion Ie.. g " a ship or train 1 or at the
destination, e.g., a hotel.
Section 23.5 se~ms to, he a
"SCl,v;i.ng" provision for travel which may he required on a
day off or holidoy.
It requir~$ payment of a minimum 'of
q hours tims' cl'Q~it for tl:avel -- even if it takes les s than
that amount of time -- so loneJ as the trC\v~l is required
on a dny off o^ holiday.
Therlil does not appear to be iCIJ".1Y significant l:eason to antici.pate
. ,
t.hat the parties might have intended Article .23 to have any
b.roader focus than this.
Tho Union sUbmittad on behalf Of
the: grievor. that tho-te was rationale for giving Article 23
a b~oader construction.
It was submitted that the parties
might have .t.'egarded Article 23 AS p:roviding a middle ground
between
th~ interests of the Ministry and the employee,
i . e. I the inter~st of the Ministry' in requiring the employee
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to be away from home fo'/: ". p~,riod ?f time' and the,' int~rest of
th!;l emplQyee ; n not bein<] inconvenienoed ,-at the behest of
the employer during his or her no-called free tIme. This
middl€.! ground was achieved, it was suomi tted, by provic;'\ing
in Articlo 23 that employees should receive time cred~ts
at straight time I ~nd not on an overtime ba.si s t for thog~
hours falling' oetwesn the employee's re,g\lla~ stop time and
l1~OO p.m.
I t does not seem to us, howeve#;,1 ",,!~at the ~~r,~i'?s
con t.emplated that the inconvenience' to an employee' of being
. I . . ..
aHflY from home would warrG1.nt being pa~d his or her regular
rate during his or her free time. 'lis w~s noted by ~nother
pa.nel of this Board in He C.U.P.E., Local 767 and Ontario,'
Housing Co:r:e,oration f G. S. B. No. ],59/77 (Adams), "These periods
,
of time are not u.sually subject to the Employer I s direction
and the employeefs freedom ia much lass restricted than while
tra.veling or participating in a seminar.
Admitt~dlYi when
t.he:;;e activitifllS muat occux- away from -tha emp'loyee's home,
the impact on ~is or her family and social life is ~imilar,
if not identical, to the impact of actual work hours. Howev~rf
except for returl'l.ing to his or her h~m~,
the amp;I.oyee is
~ . I ~...
fr&e to do anything he or she cares to. The inconvenienoe
to the employee might be better characterized as only
incidental to worx
, '
.. . In light of these considerations,
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it would ~eem that if tbe parties. ha~ intended employees
to be paid the.ir regular' rat'e d\\l:in~' their free. ~time 'tl'hile
~ ~" .
on trnvel status they would 'havs done so in' a clear and
succinct manner, and not in the ~nferential manner tor ~hich
the Union contended.
In SU,m,
it must be
. .
"
/"1;'
conclud~d' that Article .23
Bol.e.ly
during which employees are engaged ~n the physical
contemplat.es payment of t~tne, oredits for the pariod of t~me
act of
, '
movement from one plac~ to. a;T,lothe:r: on 9~vernmeJlt business.
... '" "J t ~ 001. .... .. ..... " ',~
" It does not contemplate payment of t~m~ oredits f~r tll'7 entire
perioc;'\ of time that an employee is on trnvel status, subjeot
,
only to the p~oviso of 5.23.4.
Because the grievanc~ of
the grievor did not claim payment ~or any time ,spent in
physj,c:~.lly moving from his home to his destination, or
vice-versa, hIs claim was not oompensible l\nd$r Article 23'.
Accordingly I th~ grievance t1\\\st be diett\issed..
DATED AT London, ontario this 15th dny of August
1984.
#'oJ_..... _... '-
,
L'.'
,.r , ..~
Vice-Chairman
)
~'4 ~ ~ ....-,--.
,
T. lSea:r:n(!y, Member
Jl!. ~LJ::if. aJ.?U2 ~
M. ot olel Mambo]':
i~d kidS r : HJ maG SO ''l~ ~j
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