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HomeMy WebLinkAbout2019-0347.Stuber.20-02-25 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2019-0347 UNION# 2019-0649-0015 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Stuber) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Marilyn A. Nairn Arbitrator FOR THE UNION Avril Dymond Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel HEARING February 19, 2020 (teleconference call) - 2 - Decision [1] This grievance claims 15 minutes of overtime premium pay. There is no dispute that on January 14, 2019, the Grievor received an unpaid lunch break that was 15 minutes less than the unpaid lunch break provided for by the collective agreement. There is also no dispute that the Grievor received straight time pay for the 15 minutes in question. The grievance amounts to a claim for $3.14. However, the Union has pursued the grievance based on its assertion that the Employer has misinterpreted the overtime and travel time provisions of the collective agreement. [2] The grievance went to mediation but was not resolved. A hearing was held via conference call. The Employer submitted that, as the grievance had been brought under Article 22.16 of the collective agreement, this decision should issue with no reasons. The Union did not agree, citing the need for clarification as to the proper interpretation of the collective agreement. I see no appropriate basis for not providing reasons when the matter was fully argued and it is an issue of interpretation with ongoing relevance. [3] The parties filed an agreed statement of fact and further clarification was provided on agreement at the outset of the hearing. The agreed statement provides as follows: 1. Mx. Riese Stuber, the Grievor, is a full-time, permanent Court and Client Representative (CCR) who is headquartered at the Timmins OCJ Courthouse, Court Services Division, in the Ministry of the Attorney- General (the Ministry). They are designated as a Schedule 3.7 employee under the Unified Collective Agreement’s Classification rubric. 2. The Grievor works a 36.25-hour work week, at 7.25 hours a day. Their normal hours of work are 8:30am-5:00pm and they are entitled to a 1.25-hour unpaid lunch break. 3. On 14 January 2019, the Grievor was assigned at a satellite court in Gogama. The Grievor was assigned a Ministry vehicle, and drove to Gogama Court, Community Centre, Hwy 661, from the Timmins OCJ Courthouse, 38 Pine Street North, Ste 127, Timmins. 4. A breakdown of the Grievor’s day on 14 January 2019 was as follows: • 7:30am-8:30am – The Grievor leaves the Timmins Courthouse. The Grievor travels from Timmins Courthouse to Gogama Court outside of their regular working hours. - 3 - • 8:30am-9:00am – The Grievor continues to travel, but now travels during their regular working hours. • 9:00am-10:00am – The Grievor arrives at Gogama Court and begins their pre-court set up. • 10:00am-1:00pm – Court begins. • 1:00pm-2:00pm – Court recesses for one (1) hour. The Grievor takes a one (1) hour lunch instead of one and a quarter hour (1.25) hour lunch. • 2:00pm-2:15pm – The Grievor returns to Court and prepares for the afternoon’s proceedings. • 2:15pm-3:30pm – Court resumes. • 3:30pm-3:45pm – Court adjourns. The Grievor finishes their post- court duties, takes down the courtroom, and repacks the vehicle. • 3:45-5:00pm – The Grievor travels from Gogama Court back to Timmins Courthouse, within their regular working hours. • 5:00pm – The Grievor arrives at Timmins Courthouse. • 5:00-5:15pm – The Grievor unloads the vehicle and concludes the day. 5. On or about 28 January 2019, the Grievor completed a timesheet. It included a request for 0.25 hours of overtime for working through a portion of their lunch break. The timesheet is appended at Appendix “A”. 6. Shortly thereafter, the Grievor received an email saying they were not entitled to claim the overtime, and that in order to claim overtime, they were required to work 7.25 hours of work in a courtroom or the office. 7. On or about 13 February 2019, their timesheet was altered by management to remove the overtime. However, the Grievor was paid 1.50 hours as travel time. This is reflected at Appendix “B”. [4] The Grievor received 7.25 hours pay at the straight time rate reflecting their regular hours of work for the day. As noted in paragraph 7 above, they also received straight time pay for 1.5 hours, paid as travel time. The Employer confirmed that this 1.5 hours was attributable to the periods between 7:30-8:30am (1 hour); 5:00-5:15pm (.25 hour); and the .25 hour missed lunch break. The Union, while not conceding - 4 - agreement, is not taking issue in this grievance with the amount of pay for the period between 5:00-5:15pm. [5] There is no dispute that all of the travel completed by the Grievor on January 14, 2019 was authorized by the Employer. There is also no dispute that daily overtime is payable in accordance with Articles 8.2.2 and 8.3.1 of the collective agreement. [6] Although I was referred to additional provisions, the pertinent provisions of the collective agreement provide: ARTICLE UN 8 - OVERTIME UN 8.1 The overtime rate…shall be one and one-half (1½) times the employee’s basic hourly rate. … UN 8.2.2 In this Article, “overtime” means an authorized period of work calculated to the nearest half-hour and performed on a scheduled working day in addition to the regular working period, or per-formed [sic] on a scheduled day(s) off. UN 8.3.1 Employees in [Schedule] 3.7… who perform authorized work in excess of seven and one-quarter (7¼) hours…shall be paid at the overtime rate. … ARTICLE 14 - TIME CREDITS WHILE TRAVELLING (FXT, SE, FPT, RPT) 14.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry. … 14.6 All travelling time shall be paid at the employee’s basic hourly rate or, where mutually agreed, by compensating leave. [7] At the hearing the parties agreed that the Employer’s practice with respect to CCRs had been to credit overtime for each 15 minute period. After this grievance was filed, the Employer advised employees that, further to Article UN 8.2.2 of the collective agreement, overtime would be calculated to the nearest half-hour. The parties agree however that, should the 15 minutes in issue otherwise properly attract the overtime premium, it is appropriately recognized in this grievance. * [8] The issue, argued the Union, was whether time spent in authorized travel during one’s regular work hours was work. It was the position of the Union that time spent on behalf of the Employer during regular working hours is authorized work, including time spent travelling. In this case, it argued, the Employer had incorrectly determined that the - 5 - travel done during the Grievor’s regular working hours did not constitute work and had thereby excluded that time when calculating whether the Grievor had worked in excess of their regular working period that day and was therefore entitled to overtime for the missed lunch break. [9] The Union argued that the Employer had inappropriately superimposed the framework for dealing with travel time spent outside of regular working hours found at Article 14 of the collective agreement onto time spent travelling during regular hours. The Union argued that Article 14 of the collective agreement, read as a whole, dealt only with time spent travelling outside regular work hours. Article UN 7.1 of the collective agreement also underscored the obligation to maintain regular work hours, including rest breaks, argued the Union. [10] The Union argued that the Grievor had worked their regular hours of work from 8:30 am to 5:00pm but had received only a one-hour lunch. The Grievor had been required to work for 15 minutes during what was otherwise their lunch break and therefore, the Union argued, had worked in excess of their regular hours of work that day. The Grievor was entitled to overtime pay for that excess period of time, argued the Union. The fact that some of those regular hours had been spent travelling to the Timmins Courthouse was irrelevant, argued the Union. That time was still work time and counted, it argued. Time spent travelling outside the regular hours of work was irrelevant to this grievance, argued the Union. [11] The Union referred me to the decisions in Wiberg and Canada (Treasury Board), 1970 CarswellNat 547 (Weatherill); CUPE, Local 767 and Ontario Housing Corporation, decision of the Grievance Settlement Board dated June 30, 1978 (Adams); and OPSEU (Pool) and The Crown in Right of Ontario (Ministry of Correctional Services), decision of the Grievance Settlement Board dated August 15, 1984 (Roberts). * [12] It was the position of the Employer that the Grievor did not meet the threshold number of hours of work to qualify for overtime (in excess of 7.25 hours). The Employer noted that the Grievor had spent only 5.75 hours at the courthouse performing work. The rest, it argued, was travel time, paid at the straight time rate. The Employer noted that employees falling within different schedules or those covered by Appendix 32 of the collective agreement may be treated differently than the Grievor with respect to hours of work and overtime and urged that any decision rendered make that clear. [13] The Employer acknowledged that travel time outside regular hours of work was not in issue in this grievance. [14] The Employer argued that the Grievor’s lunch break was effectively regulated by the sitting judge in the circumstances, such that the implications of any decision would likely be limited. It also argued that any decision could not constitute a precedent, having proceeded to hearing by way of Article 22.16 of the collective agreement. - 6 - [15] Although recognizing that they dealt with travel time outside of regular hours of work, the Employer relied on a series of cases to argue that travel time was not work. In that regard I was referred to the following decisions: OPSEU (Daye) and The Crown in Right of Ontario (MNR), decision of the Grievance Settlement Board dated March 17, 2008 (Dissanayake); OPSEU (Gabriel et al) and The Crown in Right of Ontario (Ministry of Revenue), decision of the Grievance Settlement Board dated November 10, 1993; Professional Engineers and Architects of the Ontario Public Service (Group) and The Crown in Right of Ontario (MOT), decision of the Grievance Settlement Board dated April 18, 2001 (Briggs); and OPSEU (LeBlanc) and The Crown in Right of Ontario (Ministry of Skills Development), decision of the Grievance Settlement Board dated July 5, 1988 (Forbes-Roberts). * * * [16] The Grievor was performing their regular court duties during the 15 minutes in issue. At the very least, that time cannot be characterized as travel time, as it was characterized by the Employer. There was no travel completed during those 15 minutes. There can be no proper conclusion other than that those 15 minutes was time spent working. However, that does not resolve the issue, as there is no dispute that the Grievor was entitled to, and did receive straight time pay for that work. The only issue is whether that 15 minutes amounted to overtime, attracting premium pay. [17] The Employer subtracted time spent travelling during regular hours from the Grievor’s regular hours, treating that as travel time but not work time. As such, it determined that the Grievor had only worked 5.75 hours on January 14, 2019. For the following reasons, I am satisfied that this conclusion does not accord with the terms of the collective agreement and that the 15 minutes in issue is properly treated as overtime, attracting the overtime premium payment. [18] A review of the caselaw relied on by the Employer might, at first blush, appear to support its assertion that time spent in authorized travel during regular working hours does not constitute work. However, none deal with time spent engaged in authorized travel during one’s regular hours of work. The cases involve time spent outside regular hours or on a day off. In that regard, they all deal with characterizing the nature of the work involved - was it just travel time, or was it something more? If the time spent outside working hours or on a day off was simply travel time, it did not attract a premium payment. Thus the cases look to whether travel was an inherent part of the employee’s job and/or whether the employee had particular responsibilities to the employer while travelling, or alternatively, whether the employee was essentially in transit. If the former, it was held to be more than simply travel time; constituting work for purposes of attracting the overtime premium. If travel time, it resulted in a straight time payment. There was however no dispute in those cases that the travel time was compensable. [19] Pursuant to Article UN 8.3.1 of the collective agreement, overtime is payable to the Grievor if they performed authorized work in excess of 7.25 hours in a work day. That provision can be read in conjunction with Article 14 of the collective agreement. - 7 - [20] Article 14.1 is expressly limited to travel time outside of working hours, arguably imposing that limitation throughout the remainder of the provision. The only language suggesting a broader interpretation is found at Article 14.6, which speaks to “all” travel time as payable at the straight time rate or, where mutually agreed, by compensating leave. It might seem unintended that the parties would agree that an employee who engages in travel during regular work hours could be entitled to compensating leave off instead of their regular pay. However, it is not strictly necessary in this case to decide whether Article 14 deals only with time spent travelling outside of regular work hours. The provision recognizes all travel time as credited at the straight time rate. The fundamental purpose of Article 14 is to ensure that time spent travelling is paid at straight time rates rather than attracting the premium overtime rate. It speaks only to time spent travelling and confirms that travel time is credited as compensable. That is because the employee is engaged in authorized activity on behalf of the employer. That is, travel time constitutes work, although not work that attracts a premium payment. [21] This conclusion was reached in Ontario Housing Corporation, supra. The employer in that case took the position that time spent travelling outside regular work hours did not constitute ‘work’ and therefore attracted no compensation. The union in that case claimed overtime for travel time outside regular hours and was successful. This Board held at page 5: …the term “work” includes time spent by an employee in travel to a distant location for the purpose of carrying out an assignment…The rationale for this holding was well put by the adjudicator in Wiberg, [supra],…: Generally speaking, when an employee travels to his work each day, he is not “at work” until he actually arrives at this office or plant or job site…Once he does arrive at the office, however, he is said to be at work, even though he may not actually be performing the particular tasks appropriate to his classification. He may simply be waiting for an assignment, and yet he is indeed “at work” and entitled to be paid. Likewise where, in the course of the day, he travels from one location to another for the purpose of performing his job, he is “at work” throughout that time… [22] The collective agreement in the Ontario Housing Corporation case did not include a provision like Article 14, limiting payment of such ‘work’ to straight time rates. Vice-Chair Adams noted at page 8 of the decision that parties “often negotiate distinct travel time compensation arrangements” in recognition of the fact that “travelling may not be as onerous on an employee as his regular job duties”, a recognition consistent with the distinction drawn in the cases relied on by the Employer. These parties have negotiated Article 14 to deal with the appropriate level of compensation for time spent travelling. It is paid at straight time rates. But it is paid time. [23] Implicit in the fact of compensation is recognition that such time is “work” time. The Grievor attended at work on January 14, 2019 and completed their regular working period from 8:30am to 5:00pm engaged in authorized activity on behalf of the Employer. Some of that authorized activity during the regular work period involved travel for which - 8 - the Grievor was entitled to be paid their regular rate of pay. There is no basis for excluding that time from the Grievor’s ‘work’ day. [24] In addition, and in accordance with Article UN 8.3.1 of the collective agreement, the Grievor performed “authorized work in excess of 7.25 hours” on January 14, 2019. To the extent that some of the time in excess of 7.25 hours was travel time, the Grievor is not entitled to the overtime rate by virtue of the limitation created by Article 14 of the collective agreement. However, the Grievor also performed an additional 15 minutes of work in excess of 7.25 hours when they were called back to perform courtroom duties before they had received their full lunch break. That time worked in excess of 7.25 hours is overtime and payable at the premium rate. [25] I find therefore that the Grievor is entitled to receive the overtime premium for 15 minutes of work at the then applicable rate. I remit this matter to the parties to determine whether that premium amount is to be paid out or whether there is mutual agreement that it be taken as compensating leave as provided for in Article UN 8.5 of the collective agreement. I remain seized should there be any issue with respect to the implementation of this award. [26] This grievance is hereby allowed. Dated at Toronto, Ontario this 25th day of February, 2020. “Marilyn A. Nairn” Marilyn A. Nairn, Arbitrator