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HomeMy WebLinkAbout1983-0646.Eaton.84-07-12IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: J.W. Samuels I.J. Thomson H. Roberts Vice Chairman Member Member For the Grievor: M. Wysocki' Grievance Officer Ontario Public Service Employees Union For the Employer: D.W. Brown, Q.C., Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: May 28, 1984 OPSEU (W.P. Eaton) - And - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer 2. On May 31, 1983, the grievor attended.an area joint health and safety meeting in Cochrane. He works normally as a heavy equipment operator out of Porquis Junction, and Cochrane is roughly an hour's drive from Porquis. The grievor was scheduled to work on May 31 from 8:30 a.m. to 4:30 p.m., and had reported for work as usual. He drove to Cochrane in a Ministry vehicle. The meeting ended at 4:30, and he drove back to Cochrane. His day was done at 5:30 p.m. He claimed one hour overtime for the day, but received travel time instead for the hour after 4~30 during which he drove back to Porquis. He now grieves that he is entitled to overtime for the hour driving time. The relevant agreed and legislative provisions are found in the collective agreement and in the Occupational Health and Safety Act. In the collective agreement, Articles 13.1 and'13.2 provide for overtime of one and one-half times the employee's basic hourly rate.where there is an "authorized period of work.... performed on a scheduled working day in addition / to the regular working period, or performed on a scheduled day(s) off". Article 23.1 provides for credit for "all time spent in travelling outside of working hours when authorized by the ministry". This time is paid at the employee's basic hourly rate, pursuant to Article 23.6. Section 8 of the Occupational Health and Safety Act, R.S.O. 1980, c. 321, deals with the establishment of joint health and safety committees, and in subsection 12 provides: (12) A member of a committee is entitled to such time from h,is work as is necessary to attend meetings of the committee and to carry out his duties under subsections (8) and (9) and the time so spent shall be deemed to be work time for.which he shall be paid by his employer at his regular or premium rate as may be proper. 3. The Union argues that the grievor is entitled to the hour's overtime on the basis of section 8(12). The section deems time "necessary to attend meetings of the committee” to be work time for which the employee shall be paid his regular or premium rate as may be proper. It is argued that the time necessary to drive home from Cochrane to Porquis is time "necessary to attend" the meeting, and should be deemed work time. If it were work time, then it would attract overtime pay. On the other hand, the Ministry argues that this day should be treated the same way as any other work day for the grievor. He worked at the meeting, but he was engaged in travel time on the way home. The grievor had no work responsibilities on the way home, and this situation is to be distinguished from other cases at this Board, where it was found that the grievors did have certain responsibilities during the trip home, and therefore were entitled to overtime rather than travel time---see, in particular, Anwyll, 406/83. In our view, in these circumstances, if we had to consider only the collective agreement;it would be fairly clear that the grievor was not entitled to overtime pay. The real issue is.whether the legislation changes the situation. In Selvey, 140/82, and Montgomery, 569/82, this Board held that, where an employee is required to attend a meeting of the joint health and safety committee during hours in which the employee would otherwise not be scheduled to work, the employee is entitled to overtime pay. However, the Board has not yet dealt with the situation we have here, where the employee was scheduled to work at,the time of the meeting, and the only issue is his or her entitlement with respect to the time spent returning from the meeting. 4. In our view, section 8(12) of the' Occupational'Health and Safety Act is not entirely clear and unambiguous. In this we agree with the Board which decided Selvey, when it said, on page 8 of the award, "Subsection 8(12) may fairly be said to suffer from some lack of clarity". Its purpose is to enable employees to carry out their functions on the joint committee, and it accomplishes this in two ways. Firstly, the employee is entitled to the time from work necessary to attend meetings; and secondly, there should be no financial penalty incurred by the employee in carrying out his role on the committee. In short, meetings of the committee are to be treated as part of the employee's work. If this is so, then the grievor here should be treated in the same way as he would have been treated if he had been in Cochrane for some other work-related reason on May 31. Had he been there for some other reason, the hour spent returning home would have attracted travel time under Article 23. We think that the same treatment should be given.the grievor when his reason for being in Cochrane was the meeting of the area joint health and safety committee. For these reasons, the grievance is dismissed. Done at London, Ontario, this 12th day of July, 1984. .W. Samuels, Vice-Chairman "I dissent" (see attached) I.J. Thomson, Member H. Roberts, Member DISSENT I have no disagreement with the facts set out in the Award. However, I cannot agree with the majority decision in this matter. It seems to me that s.s.12 of Sec. 8 of the Occupational Health and Safety Act is quite clear. "A member of a Committee is entitled to such time from his work as is necessary to attend meetings of the Committee . . . .' The Grievor was scheduled to work that day and had commenced work. He then left in a Ministry vehicle and proceeded to Cochrane to attend the meeting. The Collective Agreement authorizes payment of time-and-one-half for "authorized periods of work" and s.s.12 of Sec. 8 of the Occupational Health and,Safety Act provides that time so spent in a meeting shall be considered work time. The evidence was that on a previous occasion the grievor was paid at the premium rate. On this occasion the grievor's supervisor and the next higher supervisor had approved the premium rate. I feel the grievance should have been allowed. Respectfully submitted, I.J. Thomson, Member