HomeMy WebLinkAbout1984-0370.Clements.85-06-11IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EhlPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Alan Clements)
and
Grievor
The Crown in Right of Ontario
(Ministry of Transportation and Communications) Employer
Befoce: 3. W. Samuels Vice-Chairman
W. Walsh Member
D. Gray Member
For the Grievor: L. Rothstein
Counsel
Cowling dr Henderson
Barristers EC Solicitors
For the Employer: L. Kolyn
Counsel
Crown Law Office Civil
Ministry of the Attorney General
Hearing: May 8, 1985
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This is yet another case involving the question of whether time spent
moving in a Ministry vehicle after regular hours is to be considered as
‘travelling time- or ‘overtime’. Under Article 23.1, employees are ‘credited
with all time spent in travelling outside of working hours when authorized
by the ministry‘, and this time is paid at the employee’s basic hourly rate
(Article 23.6). On the other hand, Article 13.2 defines ‘overtime’ as ‘an
authorized period of work’, and the overtime rate is one and one-half times
the employee’s basic hourly rate (Article 13.1). Our case involves 139 l/4
hours during the years 1981 to 1984.
This matter began as an individual grievance on the part of Mr. A
Clements, but became a Union grievance by agreement of the partles. It Is
to be decided, however, on the basis of Mr. Clements’ situation.
Mr. Clements is a Party Chief, Soils, He works in the Ministry’s
Northwestern Region out of .ThunUer Bay. A si.gnlflcant part of hts job 1s
organizing and leading soils tests in the field. These tests are necessary,to
determine the soils on which highway construction is to take place. During
ihe ‘season’, from roughly mid-April to mid-November, he is out in the
region (which runs some 1400 kilometen from the Manitoba border to the
Elliott Lake cut-off), with a crew of four casual summer employees, and a
full-time heavy equipment operator. The latter is in charge of the truck
carrying the power auger, while Mr. Clements is entrusted with a Ministry
vehicle for the season in which he carries the casual employees and all the
equipment and clothing necessary for the job (safety jackets, lanterns,
shovels, sampling bags, soil samples, road-signs, etc.). It is agreed that Mr.
Clements is responsible for the vehicle and all its contents, and the safe
journey of the casual employees. He checks over the vehicle thoroughly on a
daily basts.
The hours involved here were all spent out of regular working hours
on the way to a work site from the local motel where the crew were
staying, or from the work-site to the motel. There was no dispute that ‘it
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was necessary for Mr. Clements and his crew t0 be at the Site during all Of
the regular working hours, and that it was then necessary for Mr. ClementS
to drive the vehicle and crew out of these regular hours.
While Mr. Clements’ Position Specification does not mention ‘driving’
specifically, there is no doubt that, when the vehicle is put under his
responsibility, and when he is charged with the supervision of the field
investigations, his job necessarily involves’the care, custody, and safe
driving of the vehicle, with the equipment and crew. Indeed, his Position
,
SoeClflCatlOn sneaks of carrying out -related duties... as aSSlgneb, and we
have no difficulty in finding that driving the vehicle in this case is such a
duty. Counsel for the Ministry acknowledged at the outset that Mr. ClementS
had responslblllty for the vehicle, contents, and crew. Mr. R. Girard, Head of
the Geotechnical Section in the~Northwestern Region during the relevant
period, was in charge of three Units, among them the Soils ,Uni t. He
acknowledged readily that Mr. Clements was responsible-as described here.
Now, the jurisprudence is relatively clear in this area. It was
revtewed entirely In the latest decision of this Board on the potnt--
Anwy//, 406/83 The distinction between ‘travelling time’ and
‘overtime’ has always rested on whether or not the employee was ‘working’
at the time. Article 23.1 does not provlde for~credit fOru travelling time,
but only for such time spent ‘outside of working hours’. And ‘working
hours’ include the regular hours of work plus ‘overtime’. The jurispmdence
indicates that ‘work’ involves continuing responsibility towards the
employer. If an employee has continuing responsibility during a journey,
then the time is characterfzed as ‘overtlme’, and not.‘traveiling tlme-.
It has been established since Marcotte, S/76: that where an
employee is the driver of a Ministry vehicle, and responsible for that
vehicle, the driver Is entltled to ‘overtime’ for travel outside regular
working hours. There appear to be no cases which suggest otherwise, and
we agree with this award. Until the journey is over, the employee is not
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.
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released from responslblllty to the employer, and 1s ttWefOre still ‘at
work’.
When the employee is the passenger in the vehicle, the matter is less
certain. In Cow/e, 99/7t! a correctional officer was held not to be
entitled to overtime pay on the way to pick up certain inmates. And a
similar result was reached in Bvc&~an, 34/78: In Rich, 442/82 it
was not clear whether the grievor (a correctional off.icer) was the driver or
passenger, therefore the Board dismissed the MinistryS argument based on
COW/e. But In doing so, the unanlmous Board suggested (at page 5) that It
might have taken a different view of the law from the Board in tow/<
Finally, in Anwy/l, we dealt with a grievor who was not required to drive
the vehicle, nor was he responsible for It, though often he did drive It. He
claimed one hour’s overtime pay for time spent travelling from Samia to
London as a passenger in a Ministry vehicle outside his regular working
hours. Mr. Anwyll was a Fire Alarm Mechanic, and travelled his area to
install, inspect, service, modify and maintain these alarms in Ontario
Government bUlldIngS. He moved about as part of a two-man team in a truck
loaded with the parts and equipment needed for his operations. We held that
he was entitled to overtime pay because: (at page 7)
‘a.
.
b.
Travel is an inherent part of the grlevor’s job. While his job description does not refer expressly to travel or
driving Ministry vehicles, it is obvious that he can’t
perform any of the functions mentioned unless he does
travel. He cannot fulfil the purpose of his position
without going from place to place in a specially
equipped and stocked vehicle. Indeed, the grievor’s
uncontradicted evidence is that he travels one-third of his regular working hours.
Whether driving or not, the grievor is clearly
responsible to the Ministry for the vehicle and its
contents. Whether driving or not, the grievor bears a
certain responsibility to get the vehicle back Safely. If
the grievor was a passenger and the driver had a heart
attack, obviously the grievor would have to get the
vehicle back to headquarters. At a gas Station or collee
stop, the gr.ievor would have equal reSPOnSibility to see
that the vehicle and its contents were safe. Surely the
Win,istry would not want the grievor to relax and turn a
blind eye ‘because he wasn’t at work any longer, he was
responsibility-free’. His responsibility would continue
until the vehicle, equipment and parts were safely
returned.’
Thus, it would seem that it is less likely that a passenger would be
entftled to overtime pay for a journey made out of regular hours, than lt Is
for the driver: However, Anwyll demonstrates that if travel iS an inherent
and substantial part of the employee’s job (in Anwy/l, the grievor was on
the road virt.ually on a daily basis and spent one-third of his regular working
hours travelling), and where the grievor usesparts and equipment which are
carried in the vehicle and for which he hasa measure of responsibility, then
even a passenger may be entitled to overtime pay. As the Board concluded in
Anwyll (at pages 7-8):
‘It is one thing to be travelling on public transport or in one’s
own vehicle, When there is no responslbllfty towards the employer. it is another, to be travelling in a Minlstry vehicle,
engaged on the employer’s business, doing a necessary part of
one’s job, and having a measure of responsibility for the
emplOyer’S property. In the latter case, one would expect that
normally the employee is still .-at work’ and entitled to
overt ime pay.’
The Ministry’s argument in our case was essentially that Mr. Clements
is not employed as a driver. He is an expert soils technician, and is
employed as such. Therefore, he is not ‘at work’ after regular hours unless
he is engaged directly in soils analysis.
We don’t accept this argument. The overall purpose of his work, as
set out In his Position Specillcatlon, 1s To Organize and SUperViSe the Work
of soils field Party engaged in soil surveys...‘. This task involves morE ban
k?ndS-On work On the soils. The field work depends 3n the well-functioning
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of the Wlnlstry venlcle, all or the necessary clothlng and eCKJlDment, and the
crew. Mr. Clements is assigned the vehicle for the season.and he is
responsible for the vehicle, its contents and crew. It is Simply not
reasonable to say that he is not ‘at work’ during a period in which the
Ministry is holding him responsible for all of this property and a crew. He
Can’t just leave the work site at the end of his regular hours. He has to get
the vehicle, contents, and crew safely back to the motel.
In sum, we a‘llow the Union grievan&. An employee in Mr. ClementS’
SltUatiOn is entitled to overtime pay for the hours spent on theroad OUtSlde
of regular hours. We shall remain seized to determine the amOUnt of
compensation due to Mr. Clements, if the parties are unable to agree on this
themselves.
The parties agreed that, if we found that Mr. Clements was entitled to
overtime pay in respect of the 139 I /4 hours during the period I98 I
to 1984, then in the’future he would receive compensating leave of one and
one-half hours for each overtime hour, pursuant to Article 13.4 of the
COlleCtlVe agreement. With respect to the 139.1/4 hours, it was agreed by
the parties that he should receive pay at the overtime rate in lieU of
compensating leave, pursuant to Article 13.5.
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Done at London,.Ontario, this 11th day Of June, 1985.
J. W. Samuel& Vi&?-Chairman
"W. Walsh"
W. Walsh, Member
9. Gray"
0. Gray, Member