HomeMy WebLinkAbout1981-0529.Fox and Bunda.86-07-07SETTLEMENT
IN THE MATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between OPSEU (W. Fox & D. Bunda) Grievers
- and -
The Crown in Right of Ontario
(Ministry of Transportation & Communication)
Before:
P.M. Draper
I. Freedman
G. Peckham
For the Grievers: M.I. Rotman
COUllSel
*Rotman, Zagdanski
Barristers & Solicitors
For the Employer: M. Fleishmati
Counsel
Crown Law Office, Civil
Ministry of Attorney General
Hearing May 14, 1986
Employer
Vice-Chairman
Member
Member
DECISION
The Grievers, Wayne Fox and Daniel Bunda, grieve that they have
wrongfully~been denied a travelling time credit of four hours as
provided by Article 23.5 of the Collective Agreement.
Article 23.5 reads:
When an employee is required to travel
on his regular day off or a holiday -
listed in Article 47 (Holidays), he shall
be credited with a minimum of four (4)
hours.
An Agreed Statement of Facts was filed by the parties, the critical
points in which are the following.
The Grievers are Schedule 4 employees who normally work an eight-hour
day and a forty-hour week. Both worked out oE the same designated head-
quarters and, on July 1, 1981, a holiday listed in Article. 47, both were assigned
to inspection duties at the same job site. They were supplied with Ministry vehicles
. . . . 2
-2-
for the necessary travel between the headquarters and the job site. They were
requested to work a total of eight hours each and were authorized to travel
thirty minutes within the eight hours, that being the time required for the round
trip. Both left and returned to the headquarters within the eight hours they were
scheduled to work. In fact, due to inclement weather, they were not required to
remain on the job site for more than a few hours. They received holiday pay in
accordance with Article 19 (as it then provided) amounting to twelve hours’ pay
and eight hours’ compensating leave. Their claim for a travelling time credit of
fiur hours under Article 23.5 was denied.
We are of the view that underirticle 23.1 “travel” is effectually defined
for the purposes of Article 23 as authorized travelling time outside of working
hours. Article 23.5 is not a “notwithstanding” provision and the word “travel”
as it appears therein can only mean travel within the terms of the definition.
To concrude otherwise would mean that travelling time credits not only under
Article 23.5 but under Articles 23.2, 23.3 and 23.4 would be determined without
reference to the definition, a result that would render it futile and cannot have
been intended.
Viewed from another perspective, Article 23.5 does not create a new
category of, or a new entitlement to, travelling time credits as such. Rather,
it simply contains a guarantee that if it is necessary for an employee to travel
on his regular day off or on a holiday, outside the hours he is to work, he will
receive at least the stated minimum travelling time credit. In this, the article
is akin to reporting, or call-in, or stand-by provisions commonly found in
collective agreements under which employees are guaranteed a minimum payment
. . . . 3
-3-
of wages as compensation for personal inconvenience or the disruption of what would
otherwise be free time.
We cannot subscribe to the argument Tade by counsel to the grievers that the
travel in question here was outside of working hours because it occurred on a
holiday and was therefore outside their normal hours of work as Schedule 4 employees.
As counsel to the Ministry pointed out, the term “working hours” in Article 23.1
is not qualified by a word such as “normal”, or “regular”, or “scheduled”. We incline
to the opinion that the term means actual hours spent at assigned work, regardless -
when that work is performed.
There is, as well, the clear implication in Article 23.1 that payment for
working time and payment for travelling time are mutually exclusive. Whet’her, in a
particular case, time is properly classified as “working” or as “travelling” will
depend on the surrounding circumstances.
Counsel referred us to a number of cases in which Article 23.(and its predecessor)
was considered by the Board with rather divergent outcomes. We do not believe that
it would be constrtictive to review them here. We do, however, record our concurrence
with the line of reasoning to the effect that the sections of the article are integral
parts of the whole and no*= of them can be construed in isolation. As an illustration,
the conditions invariably applicable to all travelling time are found in Article 23.1
and the basis invariably used to calculate all travelling time pay is found in
Article 23.6.
..a.4
-4-
In the result, we find that on July 1, 1981, a holiday, the grievers
did not engage in authorized travel outside their working hours so as to qualify
for the minimum travelling time credit available under Article 23.5.
The grievances are accordingly dismissed.
Dated at Toronto, this 7th day of J"lY > 1986.
P.M. Draper, Vice-Chairman
I. Freedman, Member
G. Peckham, Member