The URL can be used to link to this page

Home My WebLink About1978-0071.Tomasini.78-07-06CROWN Between: iN ~TtiE MATTER OF AN ARBITRATiON Before: Under The EMPLOYEES.COLLECTIVE BARGAINING ACT i32fore THE GRIEVANCE SETTLEMENT BOARD Mr. L. Tomasini T!ie Grievor and Ministry of 'Transportaticn and The Employer Communications Professor i. W. Adams - Chairman Mrs. M. Gibb - Member Mr. ii. Simcn - Member For the Grievor Mrs. L. Stevens, Grievance Officer Ontario Public Service Employees Union 1901 Yange Strfet Toronto, Ontario For the Employer Hearing Mr. N. il. Pettifor, Staff Relations Supervisor Personnel Branch Ministry of Transportation & Communications Downsview, Cntario June Znd, 1978 Suite 2100~, 18~3 3undas St. Nest, Toronto, Ontario i +-. -3 -2 - In this case, the grievor, Mr. Tomasini, requests compensation for time spent travelling on a regular day off in accord with Article 23. Article 23 provides: ARTICLE 23 - TIME CREDITS WHILETFAVELLING 23.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the Ministry. 23.2 When travel is by public carrier, time will be credited from one (1) hour be- fore the scheduled time of departure of the carrier until one (1) hour after the actual arrival of the carrier at the destination. 23.3 When travel is by automobile and the employee travels directly from his home or place of employment, time will be cred- ited from the assigned hour of departure until he reaches his destination and from the assig"ed hour of departure from the destination until he reaches his home or place of employment. 23.4 When sleeping accommodation is provided, the hours between eleven 111:OO) p.m. and .the regular starting time of the employee shall not be credited. 23.5 When a" employee is required to travel on his regular day off or a holiday listed in Article 9 of the Employee Benefits Agreemnt, he shall be credited with a minimum of four (4) hours. 23.6 All travelling time shall be paid at the employee's basic hourly rate or where mutually agreed, by compensating leave. Mr. Tomasini is employed as a Municipal Super- visor, a position allocated to the class of Technician 1, Mu- nicipal Engineering, in the Bancroft District of the Ministry of Transportation and Coaanunications. His job duties include attending meetings at various municipal offices responsible for highway constructionand/or maintenance to explain Ministry policy or procedures or to provide technical assistance. To attend those meetings, he is required to'travel; On October 8, 1977, a Saturday, land therefore -3- a scheduled day off for the grievor, Mr. Tomasini attended a meeting of the McKenzie Lake and Madawaska Local Roads Board. This assignment required him to travel for a total of three hours and to be in attendance at the meeting for four and one- half~ hours. The, dispute between the parties is in respect of the compensation to which Mr. Tomasini is.entitled for the duties carried out on this date. The grievor claims he is entitled under Articles 23.5 and 23.6 to payment for a minimum of four hours, plus four and one-half hours of compensating time off under Article 19.6 of the same agreement. Article 19.6 pro- vides: 19.6 Notwithstanding anything in Article 19, employees who are in classifications assigned to, Schedule 6, who are required to work on their day off or on a holiday included in Article 9 of the Employee Benefits Agreement, shall receive equivalent tire off. 1.t is the .position of the Ministry that Mr. Tomasini is occupying a position which is allocated to the class of Technician 1, Municipal Engineering, which class is alloca- ted to Schedule 6, to which Article 7.3 of the Working Condi- tions Agreement applies. This article specifies that the hours of work for these employees shall be a minimum of thirty- six and one-quarter hours per week, with no maximum set. Because there are no fixed hours per week to be worked by these employees and because their salary rates are set in the collective ag- reement in terms of weekly and annual amounts, the Ministry contends that there is no computation possible of the "basic hourly rate" referred to in Article 23.6 of the Working Condi- tions Agreement. Thus, the Ministry has taken the position that the grievor is entitled only to compensation for seven and one-half hours under Article 19.6. Alternatively, the Ministry states the grievor was performing duties on this occasion which were identical to those performed on a normal work day, including -4 - the time spent travelling. Accordingly, all the time spent on Ministry business on the occasion in-question was work on a day off, and therefore subject to compensation only in accord- ance with Article 19.6. A summary of the grievor's duties and re-. sponsibilities were also introduced into evidence and they'.' read: 3. SUMMARY OF DUTIES AND RESPONSIBILITIES - Under the direct supervision of the Assistant to the Municipal Engineer, performs such duties as: 1. Assists in the office administration by: - assisting in checking and processing nor- mal municipal allotments and road programs, requests for supplementary allotments, interim and annual returns for compliance with regulations and arithmetical correct- ions. - reviewing, as directed, requests for des- ignation of development roads and connect- ing link construction projects; preparing recomndations for approval of municipal engineer. - assisting municipalities in the preparation of equipment specifications. - reviewing proposals for equipment storage building construction and making recommend- ations to supervisor. - assisting in checking contract documents, drawings, progress reports, etc., pertain- ing to development roads, consultant con- tracts, payment certificates, consultant accou"ts, and preparing money requests on forms D.4, D.4.S and BA.3 for work orders. -5 - - checking, as directed, design cri- teria to comply with standards and also ctimplying with mOst recent traf- fic count*. 40% - assisting, as directed, in organizing local roads boards by attendiny meetings and providing all relevant information. - obtaining notes and estimates relative to local roads boards, statute labour boards and submitting to supervisor for approval. - answering correspondence, as directed by supervisor, to various municipalities, boards, consultants, etc. - assisting in the updating of mileage charts on township roads in municipali- ties throughout the District. - providing information to various author- ities by telephone. - assisting in reviewing final tender awards submitted by municipalities for subsidy eligibility. - attending meetings at various municipal offices to explain Ministry policy or'pro- cedures, or providing technical assistance. - recommending staff requirements for season- al jobs. - other related 'duties as assigned. 2. As assigned by supervisor carries out field duties such as: - viewing or inspecting on site, construct- ion for compliance to standards (road construction, bridges, culverts. surfac- ing, fencing, etc.). -conducting road inspection with municipal representatives and viewing conditions; recoimnending solutions and proposals to municipal representatives and supervisor. - supervising M.T.C. survey work on munici- pal roads. - supervising day labour and statute labour groups (not supervised by Statute Labour Boards) engaged in~municipal work, day labour projects, etc. - arranging day labous assignments of foremen as rec&wended by supervisor. - recommending hiring of seasonal staff. 50% - arranging for the hiring of seasonal staff and equipment for day labour projects. - ensuring that safety regulations and pro- visions are complied with. - ensuring that concrete, asphalt and ayyre- gate samples are provided and that miter- ials meet M.T.C. standards. I - 6 - - instructing municipal employees in the techniques of taking tests and samples, and the administrative methods for gravel and surface treatment contracts. - assisting others in establishing de- sign criteria by making on-site visits. -taking photographs of existing conditions of roads, etc. - checking elevations, profiles and cross- sections in the field. - inspecting projects throughout construct- ion'and upon completion. - other related duties as assigned. 3. Supervises activities of day labour foremen by: - reviewing and approving work assignments and duties. 10% -providing technical guidace and resolv- ing problems. - approving time sheets and checking ex- penses. - acting for supervisor during his absence. - updating personal knowledge by reading all related circulars, publications, and attending or taking prescribed courses, reading publications and extracting advertisements. - as assigned. The Board is of the opinion that the grievance must succeed. The wording of the collective agreement is quite specific, and makes, no exception for Schedule 6 employees. When an employee is required to travel on his regular day off, and the grievor was so required, he is to be credited with a min- imum of fourhours. The fact that 23.1 may have no application to Schedule 6 employees who are required to travel on a regular working day because there is no maximum number of weekly hours that applies to them is no reason to conclude that the entire ar- ticle has no application to them. Similarly, the fact that there is some difficulty in making a compilation under Article 23.6 is an insufficient reason for concluding that no compilation can be made. In our view, the parties should be able to agree to a reasonable period of work time preceding the regular day off (i.e. a monthly) providing .his representationon which travel occurs for the purposes of calculating the employee's average number of weekly hours from which a compilation under Article 23.6 can be made. Moreover, a review of the grievor's duties and responsi- bilities convinces us that he is not employed to drive as I -?- would be a driver but rather, such travelling as occurred on, October 8, 1977 wasp incidental to his primary job duties and well within the kind of travel intended by Article 23. For example, Article 23.3 refers to travel aimed at taking the employee to a "destination", where presumably, his principal job duties would be exercised. This is exactly the kind of travel undertaken by the,grievor on October 8, 1977. The grievor in "Marcotte" was not engaged in responsibility-free travel but was engaged in the performance of a specific job duty. For all of these reasons, the grievor is upheld and the Ministry is directed to compensate the grievor as requested. The Board retains jurisdiction to entertain and resolve any diffi- culties with respect to the necessary computation should the parties be unable to agree on an appropriate procedure. DATED at Toronto this '6th day of July 1978. G. W. Adams Chairman M. Gibb Member H. Simon Member