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HomeMy WebLinkAbout1989-1544.Elloit.91-01-04'~ ':..' ./ ' .½] ONTARIO EMPLOY~'S DE LA COURONNE , ~ ' ../ CROWN EMPLOYEES OE L 'ONTAtRIO GRIEVANCE C,OMMiSSION DE. SETTLEMENT REGLEMENT BOARD DES GRIEFS ..... 190 OUNOAS STREET WEST, SUITE 2;00, TORONTO~ ONTARIO, M5G 1Z8 TELEP'HONE /TEL~PHONE: [476) 326-1388 190, RUE DUNDAS OUEST, BUREAU2100, TORONTO (ONTARIO). M:~G 1Z8 FACSrMILE/T~t.~COPJE : (476) 326-1,.196 15'44/89 IN THE I~TTER OF AN~tBITI~TION Under THE CRO~N EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Elliot) Grievor The Crown tin Right of Ontario (Ministry of Labour) Employer BEFORE: N. Dissanayake Vice-Chairperson j sky G. Ma e R..Scott Member FOR THE J. Ford GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE W. Kenny EMPLOYER Counsel Hicks Morley Hamilton Stewart Storie' Barristers & Solicitors HEARING: April 18, 1990 DECISION The griever, Mr. Ronald Elliot, grieves that the Employer has contravened article 23 of the collective agreement by failing to credit him for travel time incurred on November 21, 1989. At the relevant time the griever was a Health and Safety Inspector, working out of the Ministry's London, 'Ontario office. The thrust of his job responsibility is the investigation of possible violations of the Occupational Health and Safety Act in the industrial sector. As a Health and Safety Inspector, the griever was a schedule 6 employee as defined in the collective agreement. 'The~hours of work °f a Schedule 6 employee are defined in the collective agreement as follows: Article 7 - HOURS OF WORK 7.3 SCHEDULE 6 The normal hours of work for employees on this schedule shall be a minimum of thirty six and one-quarter (36 1/4) hours per week. As a schedule 6 employee, the griever is not entitled to overtime pay except for forest-fire fighting. If he works on a scheduled day-off, he gets lieu time off. The griever testified that his work was mostly in the field. On a typical work. day he travelled from his home to one or more locations where investigation work was required and returned home. He testified that his "normal hours" are from 8:30 a.m. to 4:30 p.m. in that on a "normal day" he left home at 8:30 a.m. and returned at 4:30 p.m. He estimated that these "normal hours" occurred 80 percent of the time. However . on 20 percent of work days his hours are longer. He conceded that his hours are unpredictable on any given day. For instance, if there is a work refusal at a workplace he may be required work well beyond 4:30 p.m. He makes the decision as to how long he should .stay on an investigation depending on a number of factors.~ Also, he may be required to attend at a workplace outside of his "normal hours", if for example, a work refusal occurred during a night shift. The grievor drove his own vehicle when travelling for purposes of ~is work. He had been an inspector for over three years. During the year or I 1/2 years preceding the filing of the grievance the Employer routinely paid him travel time, if he spent time on work related travel .outside the 8:30 a.m. to 4:30 p.m. period. At some prior date the grievor had.issued a stop- work order against an employer. On November 21 1989, the grievor~s supervisor Mr. Collin Wilson instructed him to meet with the employer who had been upset about the stop-work orders. At 7:45 a.m. he set out from his · home. He went to the Ministry.office in London, where another inspector, Mr. Baker joined him. The grievor felt it was prudent to have Mr. Baker accompany him, because the employer in question was reputed to be potentially violent. The two of them drove their own vehicles in convoy to the employer's place of business in St. Thomas, Ontario. Having attended to that matter, they drove back in their vehicles to London. As pre-~ arranged, they stopped over on the way at a coffee shop, where the grievor had something to eat and also made some work related notes together ~ith Mr. Baker. Then they returned to the Ministry's London Office and spent a few minutes there. From there, the grievor proceeded to the Ford plant in Talbotville, Ontario, where a work refusal had been reported. That matter took a considerable period of time. The grievor did not get home till 10:15 p.m. Thus his work day on November 21, 1989was from 7:45 a.m. to 10:15 p.m., a total of 14 1/2 hours. The grievor, as already noted, is-not, entitled to overtime pay. He therefore claims travel pay for travel time incurred during his work-day on November 21, 1989. A sheet indicating the travel times claimed was filed in evidence. Article 23 provides: ARTICLE 23 - TIME CREDITS WHILE TRAVELLING 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 before 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 credited from the assigned hour of departure until he reaches his destination and from the assigned 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 (11:00) p.m. and the regular starting time of the employee shall not be credited. 23.5 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. 23.6 All travelling time shall be paid at the employee's basic hourly rate or, J where mutually agreed, by ~ompensating leave The parties are at odds on a nttmber of fronts in this grievance. They are in dispute as to whether article 23.1 (upon which the grievor relies) applies to points out that according to the grievor's own claim sheet, all of the travel time (except his final trip from the Ford plant to his home).occurred between 8:30 a.m. and 4:30 p.m., the period which the grievor himself claims to be his normal work hours. Thus the Employer contends that since under article 23.1 travel time is credited only for travel incurred outside of work hours, the grievor is not entitled to travel credits for that. travel. Finally, the Employer contends that travel credits are only for travel time and not for work time and contends that the travel undertaken by the grievor on November 21 was work time and not travel time. This grievance can be disposed of on the basis of the last of the issues in dispute set out in the foregoing paragraph. The Union relies heavily on Re Fawcett 275/82 (Draper), where the Board did not distinguish between "travel" and "work" time. However, as the Board in Re Pinque et al, 1355/87 (Ratushny) noted "numerous subsequent decisions of the Board clearly depart" from the decision in Re Fawcett. See, Re Stahl, 45/87 and Re Mallette 379/86, in Re Anwyll 406/83 (Samuels) the Board reviewed its jurisprudence and reached the following conclusion: In our view, this jurisprudence leads to the conclusion that, in principle, the issue of whether an employee is entitled to overtime pay or travel pay depends on whether' or not the employee is undertaking~ responsibilities during the course of the journey. And this would accord with the collective agreement. Article 13.2 defines "overtime" as a "period of work". Under Article 23.1, travel time is. time spent travelling "when authorized by the ministry". In each particular case, the issue becomes what is.they"work", of the employee involved. In that case the grievor had been 'paid for his travel time on the basis of travel pay under article 23. He grieved.claiming that he was entitled to be paid overtime (at premium rates) for that time. The Board concluded that article 23 does not apply-if the travel time is part of the grievor's work. Based on the evidence that the travel in'question was an inherent part of the grievor's job and that the grievor had responsibility to the employer during his travel,, the time was held to be work time and not travel time, eventhough the grievor was not driving, but merely a passenger in the Ministry vehicle. The grievance was allowed. Based on the case la~, it is now well established that article 23 only applies to travel which is not part of the grievor's work. In some cases (such as Re Anwyll supra) this test works to the advantage of the grievor because b~ having the time spent on travel characterised as work time, the grievor becomes entitled to be remunerated at the higher overtime rate. In the case at hand, the grievor, being a schedule 6 employee, has no entitlement to overtime pay. However, if he can establish entitlement to travel credits he gets some additional remuneration, albeit at straight time. Whether the time in question is to be properly characterised as travel time depends on whether the grievor could be said to have been "at work" during the periods that he was travelling on November 21. If he was, he is not entitled to travei, time credits for that time. There can be no doubt on the basis of the evidence that the grievor was at work when he was driving his vehicle on November 2!. The evidence indicates clearly that the travel incurred by the grievor was part of his work. As a general matter, it is obvious that in order to carry out his job duties the grievor must travel. Travel to the various employer locations.-.is necessarily an inherent Part of his job. Eventhough'he Was driving his own vehicle, during the journeys in question, he was carrying a Ministry provided pager. The Employer was in a position to contact him and give him directions On the pager. Besides, he was carrying with him a Ministry provided brief-case containing various forms, acts and regulations, all required in his day-to-day work. He also had with him Ministry provided safety equipment such as safety glasses and hard hat. This evidence clearly indicates that the grievor was still at work, when he was driving his vehicle from his home to the various work locations and back to his home'. Therefore, assuming that article 23.1 applies to .schedule 6 employees (we make no finding in this regard), =he travel incurred on November 21, 1989 does not qualify under that article. It was apparent from the grievor's testimony that what caused him to grieve was his sense of frustration that he is increasingly required to work long hours because the Ministry is short-staffed. Whatever the merits of that complaint, for the reasons set out above, the grievor has no right under the collective agreement to remedy that situation by claiming additional pay in the form of travel credits. This grievance is accordingly dismissed. Dated this 4th. day of January 1971 at Hamilton, Ontario. N. Dissanayake Vice-Chairperson " I DISSENT" (DISSENT WITHOUTWRITTEN ~SON) G. Majesky Member J. Scott .Member