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HomeMy WebLinkAbout1990-1888.Wang et al.92-05-01 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEE$ DE L 'ON TARIO GRIEVANCE CQMMISSlON'DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MS(~ ~18 TELEPHONE/T~LEPI.~C',N.,E /~";E.) 32~-I.?$~ .~80. RUE DUNDAS OUEST, BUFIEAL] 2100, TORONTO (ONTAF~]O). MSG 1Z8 FACSIA41LE/TELFJCOPIE (4 lei .t28-;39d 1888/90, 1889/90, 1890/90, ::[898/90 ZN THE ~TTER OF AN ~BZTI~T~ON Un,er THE CROWN EHPLOYEE$ COLLECTIVE B~I~tlNIN~ &CT Be£o~e THE ~RIEV~NCE SETTLEMENT BOarD BETWEEN OPSEU (Wang et al) ~rievor - &ltd- The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) Employer BEFORE: J. Samuels Vice-Chairperson J. Carruthers Member M. O' Toole Member FOR THE K. Whitaker GRIEVOR Counsel Ryder,'Whitaker, Wright & Chapman Barristers & Solicitors FOR THE L. Thomson EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HE]tRING April 8, 1992 The grievors are the four people in the province responsible for inspecting amusement park rides and construction hoists. They are classified as Elevator Inspector 1. Their office is. in Toronto. They work variable hours and,. at the material time, were "Schedule 6" employees under the Public Service Act. They claimed travel time, pursuant to Article 23 of the collective agreement, for the time they spent in transit outside of the period 8:30AM to 4:30PM when they had to travel outside Toronto in the period after October 1, 1989 through March 1990. In our award dated August 7, 1991, we allowed the grievances and reserved our jurisdiction to determine any issue of compensation that arose as a result of the decision. Following our decision, the gfievors were c. hanged from Schedule 6 employees to a category which permits them to claim overtime, and we understand that there is an overtime grievance now before another panel of this Board. Three issues did arise out of our original decision. The Ministry had three problems, which we will now determine. Firstly, Article 23.1 of the collective agreement provides for travel time credits "outside of working hours", and the grievors did not have regular working hours. For the grievors, what hours were "outside of working hours"? The Ministry suggests that, as Schedule 6 employees, the grievors were, in effect, on duty 24 hours per.day. Secondly, Article 23.6 of the collective agreement provides that travelling time shall be paid at the employee's basic hourly rate, but there is no basic hourly rate for Schedule 6 employees. They are paid a weekly or annual rate. By what number is the weekly rate to be divided in order to determine their hourly rate? 3 Thirdly, the principle on which the original award was based was stated as follows: "Travelling outside normal working hours is not "work", unless during the travel the employee has some responsibility towards the Employer" (the bold was in the original). And we gave as an example-- When the grievors in our case go to Thunder Bay to inspect a site, and then, when day is done, board a commercial aircraft for the trip home, they are not "working" in any sense of the term while the pilot and crew take them back to Toronto. They do not have the responsibilities that Anwyll had when he had to get his specially- equipped vehicle back to base safely. And it is no different if their out-of-normal-hours travel is on a bus, in a taxi, or in their own vehicles. The gfievors do not have work-related responsibilities during this transit. ~They are not "working" during this time. But are the grievors responsibility-free when they are on the way to a worksite? The Ministry argues that they do have a responsibility at that time--to get to the worksite on time. To each of these issues in mm. Firstly, in our view, it is simply not reasonable to suggest that the grievors were, in effect, on duty 24 hours per day. While they may not have had regular working hours, they did have "working hours" and periods "outside of working hours". We do not have to determine precisely when they were "working" and when they were "not working" each day, because this .issue was not put before us. All we have to determine is whether their travel was "outside working hours" when it took place before 8:30AM or after 4:30PM. There may have been "non- working" hours between 8:30AM and 4:30PM, but we were not asked to determine whether the grievors were entitled to travel time with respect to such hours. On the particular days in question here, we find that the grievors were travelling "outside of working hours" before 8:30AM and after 4:30PM. Their "work" on those days started at or after 8:30AM and ended by or before 4:30PM. Secondly, the collective agreement gives stone guidance to establish a "basic hourly rate" for the grievors, though the agreement provides for their compensation in terms of a weekly or annual rate. Article 7.3 of the collective agreement provides for the HoUrs of Work of Schedule 6 employees and says that "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". In our view, absent any evidence to the contrary (and there was no such evidence), we can reasonably assume., that the grievors worked 36 1/4 hours per week. Therefore, their weekly rate ought to be divided by 36 1/4 to arrive at their "basic hourly rate" for purposes of the calculation in Article 23.6. We are comforted in this conclusion by the fact that, during the period before the grievance when the Ministry did pay travel time to the grievors, the Ministry's calculation was based on 36 1/4 working hours per week. Thirdly, what about time spent travelling to a worksite? In the example we gave in our original award, would it have made any difference if the grievors had been on their way to Thunder Bay by air? We think not. Once the grievors have boarded the plane, what can they do to fulfill their responsibility to the Ministry? They will sit passively on the plane, hoping that the pilot and crew will get them to the!ir destination on time and in one piece. They have no active responsibility akin to the responsibilities of Mr..Anwyll (in Anwyll, 406/83, referred to extensively in our original award), who had to take care of his specially-equipped vehicle and its contents every moment of the trip to and from a worksite. And, in our view, the situation is not much different for the 'gr~evors when they go to a worksite in their own vehicles. The grievors have an over-arching obligation to get to work on time throughout their period of employment, but there is no particular active responsibility in the period that they are actually travelling to a worksite. Again, while they are travelling, they do not have to care for Ministry property, they do not have to mull over Ministry problems, they do not have to do Ministry activities .they are free to do whatever they'wish, provided that they show up at the worksite on time, unless they are prevented from doing so by circumstances beyond their control. They are not "working" during this time on the way to the worksite. In conclusion, we find that each of the grievors ought to be compensated for the travel time claimed--for Mr. Steele, this is 42 hours; for Wang, 4.5 hours; for Campbell, 71 hours; for Purdy, 31.5 hours. And the grievors ought to be paid interest on the amounts which ought to have been paid, calculated at 8% compounded annually from the date on which they ought to have been paid to the date on which they are actually paid. In order that there be no confuSion about the amounts we are awarding, we will set out the formula for calculation of the compensation owing to the grievors. T~e formula is: 1. Number of hours claimed in 1989, multiplied by the weekly ram of pay applicable in 1989, divided by 36.25 2. Plus: the number of hours claimed in 1990, multiplied by the weekly rate of pay applicable in 1990, divided by 36.25 3. The sum of these two calculations will be the "Basic Compensation", which ought to have been paid by September I, 1990, being twenty days before the grievances were filed. 4. Take the Basic Compensation and multiply it by 1.08 to arrive at the amount of' compensation with interest payable to August 31, I991, which is one year after the Basic Compensation ought to have been paid. 5. Establish the date of final payment of the compensation owing according to this order, and count the number of days from August 31, 1991 to this date of final payment (this number will be referred to hereafter as "DAYS"). 6. Finally, take the amount arrived at in Step 4, and multiply it by 1+(.08 x DAYS~ 365 7 We will reserve our jurisdiction t° determine any other issues that arise as a result of our decisions. But we hasten to add that we have every expectation that the parties will now have no difficulty whatsoever agreeing on a full and final resolution of these grievances. Done at London, Ontario, this ~st day of 1,lay , 1992. j//Carmthers, Union Member M. O'Toole, Employer Member