HomeMy WebLinkAbout1987-1355.Pingue et al.88-11-24j EMPLOY.% DE U CO”~ONNE
DEL’ONTARIO
COMMISSION DE
RkGLEMENT
DES GRIEFS
1355187, 1565187, 15aala7,
IN THE MATTER OF AN ARBITRATION
Under
i5a9/87, 1590/87
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievers:
For the Employer:
Hearing:
OPSEU (Pingue et al)
Grievors
and
The Crown in Right of Ontario
(Ministry of the Environment)
Employer
E. Ratushny Vice-Chairperson
.T. Traves Member
G. Peckham Member
T. McEvan
Counsel
Gowling & Henderson
Barristers and Solicitors--
T. Sergeant
Counsel
Central Ontario Industrial Relations Institute
February 19, 1988
DECISION
As Vice-Chairman Samuels observed recently in OPSEU
(Stahl) and Ministry of Health GSB 0045/87:
This case gives the Board yet another opportunity to comment on the distinction
between "travelling time" and "overtime" and the application of these concepts to a situation where an employee is driving a Ministry vehicle outside of his regular working hours.
The five grievances before us, which have been consolidated into
one, relate to travel time which occurs outside of normal working
hours. The issue is whether, in the absence of specific
authorization by the Ministry, such time should be treated as
travelling time under Article 23 of the Collective Agreement or
as hours "built up" and, therefore, subject to "averaging"
pursuant to Schedule A of Appendix 3.
In most of the earlier grievances dealing with this
issue, the grievors sought to have such time excluded from the
application of Article 23 and, therefore, subject to the higher
"overtime" rate. However, here such potential "overtime" is
subject to elimination through "averaging " by virtue of Schedule
A and the Grievors seek to have this time treated 'separately as
"trdvelling time" compensable under Article 23.
The facts are not in dispute. All of the Grievors are
Investigators in then Investigation and Enforcement Branch of the
Ministry of the Environment. Their duties parallel those of
police officers as they investigate and assist in the prosecution
of possible transgressions of environmental laws. Their job
description includes the following passage in the Summary of
Duties and Responsibilities:
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. ..locating. interviewing (occasionally outside working hours) and taking statements from witnesses, complaints, industry representatives, etc.
Other duties requiring travel would include serving documents,
surveillance, "spot checks" and court appearances. Ministry
vehicles, considerable equipment which is kept in the vehicles
and Ministry credit cards for fuel are supplied.
Under the Collective Agreement, these employees are
subject to Schedule A of Appendix 3 which provides for the number
of hours of work per week to be computed as a weekly average over
one year. Their work week is based on a 36 l/4 hour week with
recognised "core" hours from El:15 a.m. to 4:30 p.m. daily. Thus
the annual requirement for each employee is 1885 hours and any
excess hours at the end of the averaging period are considered as
overtime. Schedule A also provides that when an employee's
accumulation of hours worked "is becoming excessive", he or she
may be required to take time off on an "hour-for-hour basis" in
order to reduce that accumulation. This mechanism, in effect,
permits the employer to control the amount of overtime which must
be compensated at the end of the averaging period.
Article 23.1 provides that:
Employees shall be credited with time
spent in travelling outside of working hours when authorised by the ministry.
However, such time is not treated as contributing to the
employee's annual accumulation under Schedule A. It is simply
compensated, pursuant to Article 23.6,. at the employee's basic
hourly rate or by compensating leave through mutual agreement.
The evidence of the Grievors indicated that prior to
1986, their hours outside of the "core" working period of a:15
a.m. to 4:30 p.m. were treated consistently. Any time spent
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travelling was claimed and compensated under Article 23. Any
other time was added to the accumulation under Schedule A.
Moreover, the accumulation of hours was considered to be
"excessive" only where it exceeded 36 l/4 hours.. However, for
the fiscal year 1984-85, the employees were told that limited
financial resources required that overtime be reduced to "zero".
This change in policy in relation to accumulated overtime
was grieved successfully on the basis that adequate notice had
not been provided. However, this Board ruled that the change in
policy was entirely within the authority of the employer. The
issues of reasonable notice or estoppel are not before us in the
present case.
The Assistant' Director of the Investigation and
Enforcement Branch testified that, when the Branch was formed in
1985, different policies related to travel time were being
applied in different regions of the province. Exhibit Six
indicates that one supervisor required prior approval for any
travel or other hours beyond the "core" working day. Thus,
employees were being treated differently and there were
complaints about the absence of a clear written policy. As a
result, the Assistant Director undertook to develop a uniform
policy and met personally with supervisors and some
investigators. The. policy which was ultimately~ adopted was
distributed to all Managers and Supervisors within the Branch by
memorandum dated August 12, 1986.
This Branch Policy on Travel Time provides: . .
Any claim made for payment of travel time will only be allowed where prior authorization has been obtained from a head office manager. The manager will use his discretion in approving such claims such as authorisation for payment of travel
time, etc.
-4-
The Assistant Director explained that the basic premise of this
policy was that travel is an integral part of the investigation
function and it would be artificial to separate travel related to
investigations outside of the "core! working day from travel
related to investigations within that working day. Moreover, the
requirement of authorization under Article 23.1 could hamper
investigators if they were required to seek prior approval.
Therefore, the approach taken was to allow travel claims for
matters falling outside of the investigative function such as
educational courses. Some flexibility was also envisioned in
permitting such claims for travel on week-ends in order to appear
in court on the following Monday and in giving the employee the
option of treating any travel times as part of the accumulation
of hours under Schedule A. There can be little doubt that the
desire to control total hours compensated was also a significant
factor in establishing the policy.
Under~ cross-examination by counsel for the Grievors, the
Assistant Director conceded that different' policies could ,be
applied to investigators and to abatement officers employed by
the same Ministry. However, he added that there. were
inconsistent policies eve'n amongst abatement officers from region
-to region. The Branch policy was an attempt to avoid such
internal inconsistencies within the Investigation and Employment
Branch.
Counsel for the Grievors argued that the Employer
"changed the rules of the game" after they had been clearly
established. He characterized this aPproach as attempting' to
modify the Collective Agreement through a Policy. He described
the inconsistency of treatment of some abatement officers as
being "blatant". He argued that travel falling outside of the
"core" working day is normally incidental to the investigative
- 5 -
role and merely involves driving to or from the site of the
investigative work. In any event, Article 23.1 specifically
refers to "time spent in travelling outside of working hours" so
that whether that time is integral or incidental to investigation
is not relevant.
Although counsel for the Grievors has put their case as
forcefully as possible, we are of the view that the weight of
decisions by this Board is clearly contrary to'their position.
The only decision which could be cited in their favour was e
(Fawcett) and Ministry of Transportation and Communications
G.S.B. 275/82. However, that grievance involved a Schedule 6
employee and the Board observed:
It is important to note that this is not
a case in which the issue is whether an employee, who is eligible for both, is entitled to pay at the overtime rate or compensating leave under Article 13, or to credits for time spent in travelling under Article 23. . ..the Grievor is not
eligible for overtime pay or compensating leave in any circumstances, and is eligible for equivalent time off only, for work performed on a day off. (p.9)
It is true that the Board also stated that:
We see no authority in the collective agreement for the characterisation of
time spent by the Grievor in travelling as overtime work. (p.9)
However, numerous subsequent decisions of the Board clearly ~_ depart from that view.
The Stahl decision which was cited at the outset, refers
to many of these decisions and isolates the two elements which
distinguish "travelling time" from "overtime". These are:
-6 -
. ..travel as a necessary part of the ;ob and the employee's responsibility for'the Ministry's vehicle." (p.6)
There can be little doubt that these elements are present in the
facts before us.
However, these decisions did not deal specifically with
the situation of Schedule A employees similar to the Grievors.
Such a situation was present in OPSEU (Malette) and Ministry of
the Environment GSB 379/86 which was heard on October 2, 1987 and
decided on July 5, 1988. Counsel provided written submissions on
the Malette decision. Counsel for the Grievors argued that it is
either distinguishable or wrongly decided. Counsel for the
Employer argued that it is consistent with the Stahl decision and
would be in direct conflict with a finding in favour of the
Grievors in our case.
In Malette, the Grievor also had normal daily hours of
work from 8:15 a.m. to 4:30 p.m. On the day in question, he left
at 7~00 a.m. and travelled for one and one quarter hours to a
meeting scheduled for 8:30 a.m. which was related to the regular
performance of his duties. The grievor was paid for "travel
time" pursuant to Article 23.
The Board applied the two criteria which are
well-established by'the case law and concluded that:
"Firstly, driving is an integral part of his job... Secondly, the grievor had responsibility for a Ministry otined vehicle." (pp.3,4)
The time in question was, therefore, "work" and the Employer was
directed to credit one and one-quarter hours of work to the
grievor for the relevant averaging period.
- 7 -
In view of these earlier decisions of this Board the
travel time which is the subject of the grievances before us also
must be treated as "averaging" hours subject to Schedule A rather
than as time credits while travelling under Article 23. The
grievances are, accordingly, dismissed.
We wish to thank counsel for their expeditious yet lucid
presentation of the evidence at the hearing.
Dated at Ottawa this 24th day of November, 1333.
T. Traves, Member
J-Q,
0. Peckham, Member
I