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HomeMy WebLinkAbout1977-0159.Union.78-06-30159177 iN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINIXG ACT Before THE GRIEVANCE SETTLEMEN? BOARD Setween: The Canadian Union of Pl?blic Employees, Local 767 And Ontario Housing Corporation Before: Professor G. W. Adams Chairman Mrs. Mary Gibb Member Nr. Harry Simon Member For the Grievor: Mr. P. J. O'Keefe Assistant Director (CUPE (Ontario Region) Suit2 531, 212 King St. W. Toronto, Ontario For the Employer: Mr. A. P. Tarasuk Central Ontario Industrial Relatisns Institute Suite 200, 35 Richmond St. W. Toronto, Ontario Hearing: Suite 2100, lB0 Dundas St. W. Toronto, Ontario Kay Bth, 1978 -2- In this case the Union challenges the propriety of the Employer’s policy with respect to its treatment of "travel time" spent by employees "outside of their normal working hours" for the purposes of compensation. This policy was .spelled out in- a memorandum ,-: dated August 25, ICI77 and bearing the signature of H. E. Stimpson. The policy provides: I'... it is the Employer's position that the collective agreement only provides for payments when an employee actually performs work outside of his normal working hours. In those instances where employees travel to a location other than their normal work location for meetings that are intended to enhance their knowledge and thus enable them to better perform their assigned duties, they are Of CoUzse, reimbursed for all reasonable travel expenses incurred. However, when such travel OCCUIS outside the normal work hours, the travel time spent either driving an automobile or riding on a public carrier cannot be considered as performing work." The Union came forward with the case of Mrs. Barbara Newson to demonstrate how this policy had adversely affected employees in the bargaining unit and, consequently, why the policy "flew inthe face" of the mandatory overtime provision. of the collective agreement. The overtime provision provides,in part: 16.01 Each full-tinrz employee shall be paid by the Employer at the rate of tire and one half for all time worked by such employee on any scheduled working days in excess of his regular hours for such day, and at the rate of tine and one-half for all time worked by the said employee on any day in any calendar week other than a scheduled working day. -3- 16.04 All overtime, except emergency overtime, shall be authorized in advance. zmerqency overtime shall be reported to the appropriate supervisor within two days for approval. The regular hours of work for employees in the bargaining unit are set out in the collective agreement at article 13.01 which provides: 13.01 The normal week of all full-time employees of the Employer shall consist of: (1) For maintenance employees five (5) days of eight (8) hours per day; (2) For administrative employees the present hours of work shall continue until September 1, 1975 OR which date they shall become five (5) days of seven (7) hours per day; provided that such an employee whose normally scheduled work day is in excess of the aforementioned hours or whose normally scheduled work week exceeds five (5) days, shall not be required by the Employer to work (as part of his normal work schedule) in excess of an average of eighty (80) hours for maintenance employees or seventy (70) for administrative employees, per two-week period over a reasonable period of time. Mrs. Newson works and lives in Niagara Falls. Her home is located three miles from her work location and she travels this distance, one-way, daily in approximately fifteen minutes. She is a Bookkeeper, Clerk 4 and works for the East Niagara Housing Authority. She has been employed since December, 1974 and her regular hours of work are from 8:30 a.m. to 4:30 p.m., Monday to Friday. On October 26, 1977 she was required to attend a payroll seminar -4- in Hamilton. The Office Manager picked her up at her home at 7:00 a.m. that morning and, together, they drove to Hamilton for the seminar. Following the conclusion of the seminar.that day, they arrived back at her home in Niagara Falls at 7:00 p.m. The seminar terminated at 5:15 p.m. and the remainder of the time until 7:00 p.m. was spent in travelling back to Niagara Falls. The grievor received pay for only her regular hours of work that day,despite a request for four additional hours of pay at the overtime rate. Mrs. Newson told the Board that she has two children who are cared for by a babysitter when she is at work. On the day in question, the sitter had to come to.her home earlier than was usual and remain there until her return at 7:00 p.m. Mrs. Newson advised the Board that on some seven previous occasions,dating from November 1976,she had received overtime pay in similar situations. The Union contended that Mrs. Newson was at work within the . meaning of the agreement when travelling to and from Hamilton, just as she was working when actually participating in the seminar. The impact on her family life was identical to that when she was performing her usual job duties in Niagara Falls for the Employer and, because this work fell outside her regular hours of work, she should be compensated at overtime rates for the four hours in ,question. The Union also asked the Board to address its mind to the hypothetical situation where employees are required to attend a seminar on a weekend and their attendance requires remaining overnight at a seminar location remote from their homes. The fact situation hypothesized also,included necessary travelling to the seminar location the day before -'5 - and the day after the seminar. 1t”was the Union's view that to the ex- tent this time fell outside regular hours of work, the employees would be entitled to overtime pay and that this,pay would apply to time expended in the actual participation in the seminar; travelling to and from the sem- inar location; as well as all time spent at the seminar location, including time spent eating and sleeping. The Union's theory was identical to that argued on behalf of Mrs. Newson's claim for overtime. The Employer's position was short and simple.. In its view, time spent travelling, eating, or sleeping outside of an employee's regular hours of work did not constitute work within the meaning of the collective agreement. In support of this proposition, the Board was referred to central h'ospital Corp. (1975), 10 L.A.C. (Zd) 412 (Weatherill); Canadian Industries Ltd. (1974), 7 L.A.C. (2d) 110 (Brown); and Toronto Jlectric Conmissioners (1968), 20 L.A.C. J9 (Krever). It is the Board's view that the Employer's policy violates the overtime provisions of the collective agreement between the parties. In our view, and we so find, the term "work" includes time spent by an employee in travel to a distant location for the purposes of carrying out an assignment, whether that assignment is the employee's participation in a seminar or the performance of the employee's usual job duties. The rationale for this holding was well put by the adjudicator in Wiberg and the treasury Board (Public Service Staff Relations aboard, x6-2-286), in writing: "Generally speaking, when an employee travels to his work each day, he is not "at work" until he actually arrives at his office or plant or job site. If his residence is at some aistant location, that is his own affair. Once he does arrive at the office, however, he is said to be -6- at work even though,he may not actually be performing the particular tasks appropriate to his classification. He may simply be sitting at his desk waiting for an as- signment, and yet he is indeed "at work" end entitled to be paid. Likewise where, in the course of the day, he travels from one location to another for the purpose of performing his job, he is "at work" throughout that time. In the instant case, the essence of the employer's case is that the griever did not begin work on December 2 until he arrived in Collingwood at 7:30 a.m. that morning. The underlying assumption is that his getting to work at Collingwood that day was the griever's own business, just as his getting to work in Toronto on any other day was his own business. Luckily for the griever, he was not asked to report in Vancouver or Halifax that day:. Merely to state this assumption is surely sufficient. It is obviously false. When the griever drove to Collingwood in the early hours of December 2, end returned that evening, he was not just driving to end from work in the usual sense, he was travelling on the employer's business, at the employer's particular request, et some inconvenience to himself and on an assignment for which special permission had to be obtained." Mrs. Newson, therefore, is entitled to be compensated at the overtime rate for the four hours in question as she requested and the Board so directs. As for the Union's hypothetical, any adjudicative body should hesitate giving opinions with respect to hypothetical situations. Without the real life implications being present in the context of an adjudication, the decision-makers may be deprived from seeing -7- the real impact of their decision on the parties before them. Thus, we are extremely hesitant to provide the "assistance" requested of us by the Union. However, the Board does want to be helpful where possible and a few tentative observations might be made. In the hypothetical put forward, there is some difficulty in concluding that an employee is working on behalf of the Employer .when eating or sleeping outside that employee's regular work hours, despite the fact that such eating and sleeping is removed from the employee's home. These periods of time are not usually subject to the Employer's.direction and the employee's freedom is much less re- stricted than while travelling or participating in a seminar. Admit- tedly, when these activities must occur away from the employee's home, the impact on his or her family and social life is similar, if not identical, to the impact of actual work hours. However, except for returning to his or her home, the employee is free to do anything she or he cares to. The inconvenience to the employee might be better characterized as only incidental to work, but not work for the purposes of the agreement. It can be argued that if the parties in- tended these hours, (i.e. sleeping and eating) to be compensated for at overtime rates, they would have done so expressly. Travel time is essentially different. It is integrally related to work in most situations; often is very inconvenient and not responsibility-free to the employee who must get on the airplane or drive his car or simply ride in a car that can always become involved in an accident; and, while engaging in travel the -a- employee's freedom is extremely constrained. On the other hand, time spent travelling may not be as onerous on an employee as his regular job.duties and, in recognition of this fact, parties to collective agreements often negotiate distinct travel time compen- sation arrangements. This was the case in mrcotte 54178. However, the parties before us now have not done so. We might also add that, at least in the private sector, such a negotiated approach to travel time is not free of difficulties, given the mandatory provisions of the employment standards legislation. This fact is revealed in Canadian National Railway Company and Canadian Telecommmications Lhion, January 5, 1978 (Adams). As for time spent in participating in a seminar which is required by the Employer, this activity is as much in the nature of work as travelling time, if not more so, and it is unlikely that this Board would follow Toronto Electric Commissioners (1968). 20 L.A.C. 19 (Krever). While seminars may be of considerable benefit to the employees, when participation is required by the Employer the impact on the employee's family life is substantial and participation must be characterized as work. The Board retains jurisdiction to resolve any difficulties encountered in implementing the decision relating to Mrs. Newson. Dated at Toronto this 30th day of June, 1978. G. W. Adams, Chairman I concur Mary Gibb, Member I concur Harry Simon, Member