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HomeMy WebLinkAbout1983-0596.Pool.84-08-15 DEC I S.l,ON.' .. . liMIt VAN lit: SETTLEMENT BOARD wa CVDA5 STREU \\'1!,~', Ton<"J~ro. O!flNlIO. Jl5G 'lB' !,WIrE mQ TfL.G~XOHEI 415/~g8' O~8S 596/83 IN THE MATTE~ Or AN A~I~RArlON under, T~E CROWN EMPLOYEBS COLL~CTlVE BAR~INING ACT Before THE G~IEVANCE SETTLE~mNT aO~RD netween: . OPSEU'(Christopher Pool) Gr.ievor - and - ~he crown in Right of ontario (Ministry of co~reotional, Se~vic~$) Employe):." BeforG:~ R.J. Roberts T.J. Kearney M. ol'l'oole , . , Vice Chairman Member Member Por the Gr~evo~ I. Roland Counsel GO\-/ling & Henderson Oa~r~GterB & Solioit.ors For the Employer~ J.P. Denediot Managa~, statf RelationB Per~onnel aranoh Ministry of c~rrectlonal ServiceH !!.earinc;n, April 27, 1984 . v' Neverthele8~, the grlavor claimed that b~cau5e he Was on truvel status at the POIJ.ce Colle,9'e" in the sense' or being . , absent from home on government business, he W~5 entitled unde.r Art i cl e 23 to payment at his regular' , , hourly rate for all hours :~om 4J30 p.m. to 11:00 p.m. .,. I' ''- .tn a previous Awa.rd oi this Vice-chairman I ~?yd and' Ministry of Corre ction&.1 ,Services, ,G. S.. B. Roberts', i.t was sa~d in dictUIll~' No. 105;a3 ('R,J. AS to section 17.2.2, there was a submission by the Employer at th~ hearing that in order to qua 1 Hy as an lJempl.oyee ... travelling on government. business" under this 1?t:ovi~ion of the collective agreement the employee had to be travel1in9 from pIa ce to place and not stl\ying in one place which nevEl;rt.heless was dista,nt ~l'om hi s home. We think this is a strained version of the word "travelling". The most ~ppropriate interpre~ation of this word seem5 to us to be one that includea an employee who .i. s required l)y the 90vernment temporari ly to locate at a .place distant from his home area, whether for. 2~ hours or a m&tter of weeks. .... ld. at 6-7. ....- It wasurqed by the Union on behalf of the grievor th~t upon the same re.:lsoning the word If travelling II I as used in f'}t'ticle 23, is rnos~ appropriately interpreted a~ re(e~rin9' to the p~atus of being located at, a place distant from borne. It is not, however, always possible to take' an interpretation of a word, within '0"0 .provision in the Boyd ca se I Article 17 regarding meal. allowance -- and apply it wholesale to another ~rovision in which the same word Ld j,jelL:' TV 0IDe 5@ "F'.:J 6[[CLccLD81 'eN xu.:! Lln:>J-/ m.ight appear. 'The conte;-{t. of 'the, provision Hell might indica.te th~t. the parties intended to use' th~ . word i!l a different. sense. this seems to be the case with respeat. to the use of the word "t:t:'avclling" in Articles 1'7 and 23. A:ct.ic1e 17 does not focus l.l.pon the .act of physic~ l. movement. In Articl.e 17, t.he word "travE"11UJ'lgll appeClrs onlY',onoe, in s.17.2.2. Unoer s .17.2.2, a.n employee is permitted' to claim the c'ost of a meal consumed during a. meal period if at the time: he or, $he was "tra.velling on government business. II', 'X'his. gener~l ph;r;ase, "travelling on government business", does' not intrinsically provide any b,asis fo~ distinquiGhing between a meal consumed ~ 10ute and a meal consume~ at the destination. No~ doss t.he vording of A~ticle 17 provide any such basia~ Moreove~t B.17.4( raquiring a $howin~ of th~ "total cost of mea 1$ for each day, II tends to indica.te that "the focus 01; $ .17.. 2.2. most likely .:i,s thGl broader onG\ of having the s"tatus of being a.bsent. from home on gove'rnmsnt bua.f.n~sa. ~: 'rh;l.s is not so wi tn. respeot to Artie,Ie 23. '!'he!' "!~tire focuv o~ ArticlG 23 appears to be upon the. physical act of movement from home to dostination,' and vice-~ersa.. 'For example, s.23.2 d~als with the method of oalculating time cred:i t$ when the physical movement of t~e ecmployea is I?d ~.ld8r: TO 0l0Z 60 'qa.:j 6n::zrZ2L08T 'ON Xtl.~ ~.mL:I 6. accomplished by public carr~er. Articl~ 23.3, provides a d~eteren~ method of calculati9n of time c4edita where the employefl uses an automobilQ to move fr::om', e. 9., hi's or hEn' ,0:,- ho:ne to the destinAtion. ~>Section 4'3 - 4 reliltlves the Minigt.~y of 'its obl~gation to pay time creoits where the physical movemen t: , of the employee OCCU:J:S, in who;l,e or in pa.rtr in , , the period of time extending f:J:o[n 11:00 p.m. to the employee's , r~9ular start time, so long as sleeping accommodation for the night in question is provided -- pl:esuroably on the means of transporta tion Ie.. g " a ship or train 1 or at the destination, e.g., a hotel. Section 23.5 se~ms to, he a "SCl,v;i.ng" provision for travel which may he required on a day off or holidoy. It requir~$ payment of a minimum 'of q hours tims' cl'Q~it for tl:avel -- even if it takes les s than that amount of time -- so loneJ as the trC\v~l is required on a dny off o^ holiday. Therlil does not appear to be iCIJ".1Y significant l:eason to antici.pate . , t.hat the parties might have intended Article .23 to have any b.roader focus than this. Tho Union sUbmittad on behalf Of the: grievor. that tho-te was rationale for giving Article 23 a b~oader construction. It was submitted that the parties might have .t.'egarded Article 23 AS p:roviding a middle ground between th~ interests of the Ministry and the employee, i . e. I the inter~st of the Ministry' in requiring the employee C;j l,ld8; :8 E1Ti3G 60 'q::Jj 6[[cTGGi.08 r : 'ON Xl;J.:! : t.10~..:I 7. ~ to be away from home fo'/: ". p~,riod ?f time' and the,' int~rest of th!;l emplQyee ; n not bein<] inconvenienoed ,-at the behest of the employer during his or her no-called free tIme. This middl€.! ground was achieved, it was suomi tted, by provic;'\ing in Articlo 23 that employees should receive time cred~ts at straight time I ~nd not on an overtime ba.si s t for thog~ hours falling' oetwesn the employee's re,g\lla~ stop time and l1~OO p.m. I t does not seem to us, howeve#;,1 ",,!~at the ~~r,~i'?s con t.emplated that the inconvenience' to an employee' of being . I . . .. aHflY from home would warrG1.nt being pa~d his or her regular rate during his or her free time. 'lis w~s noted by ~nother pa.nel of this Board in He C.U.P.E., Local 767 and Ontario,' Housing Co:r:e,oration f G. S. B. No. ],59/77 (Adams), "These periods , of time are not u.sually subject to the Employer I s direction and the employeefs freedom ia much lass restricted than while tra.veling or participating in a seminar. Admitt~dlYi when t.he:;;e activitifllS muat occux- away from -tha emp'loyee's home, the impact on ~is or her family and social life is ~imilar, if not identical, to the impact of actual work hours. Howev~rf except for returl'l.ing to his or her h~m~, the amp;I.oyee is ~ . I ~... fr&e to do anything he or she cares to. The inconvenienoe to the employee might be better characterized as only incidental to worx , ' .. . In light of these considerations, 0d \.Jd81: 18 Of0c 60 'qd.:J GiTGf:GGL08~ '(IN Xl::l.:J \.-IO~.:J . ~ ... it would ~eem that if tbe parties. ha~ intended employees to be paid the.ir regular' rat'e d\\l:in~' their free. ~time 'tl'hile ~ ~" . on trnvel status they would 'havs done so in' a clear and succinct manner, and not in the ~nferential manner tor ~hich the Union contended. In SU,m, it must be . . " /"1;' conclud~d' that Article .23 Bol.e.ly during which employees are engaged ~n the physical contemplat.es payment of t~tne, oredits for the pariod of t~me act of , ' movement from one plac~ to. a;T,lothe:r: on 9~vernmeJlt business. ... '" "J t ~ 001. .... .. ..... " ',~ " It does not contemplate payment of t~m~ oredits f~r tll'7 entire perioc;'\ of time that an employee is on trnvel status, subjeot , only to the p~oviso of 5.23.4. Because the grievanc~ of the grievor did not claim payment ~or any time ,spent in physj,c:~.lly moving from his home to his destination, or vice-versa, hIs claim was not oompensible l\nd$r Article 23'. Accordingly I th~ grievance t1\\\st be diett\issed.. DATED AT London, ontario this 15th dny of August 1984. #'oJ_..... _... '- , L'.' ,.r , ..~ Vice-Chairman ) ~'4 ~ ~ ....-,--. , T. lSea:r:n(!y, Member Jl!. ~LJ::if. aJ.?U2 ~ M. ot olel Mambo]': i~d kidS r : HJ maG SO ''l~ ~j 6[[Z[ZZL88T : 'ON X~j : ~,JOC:lj