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HomeMy WebLinkAbout1981-0529.Fox and Bunda.86-07-07SETTLEMENT IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between OPSEU (W. Fox & D. Bunda) Grievers - and - The Crown in Right of Ontario (Ministry of Transportation & Communication) Before: P.M. Draper I. Freedman G. Peckham For the Grievers: M.I. Rotman COUllSel *Rotman, Zagdanski Barristers & Solicitors For the Employer: M. Fleishmati Counsel Crown Law Office, Civil Ministry of Attorney General Hearing May 14, 1986 Employer Vice-Chairman Member Member DECISION The Grievers, Wayne Fox and Daniel Bunda, grieve that they have wrongfully~been denied a travelling time credit of four hours as provided by Article 23.5 of the Collective Agreement. Article 23.5 reads: 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. An Agreed Statement of Facts was filed by the parties, the critical points in which are the following. The Grievers are Schedule 4 employees who normally work an eight-hour day and a forty-hour week. Both worked out oE the same designated head- quarters and, on July 1, 1981, a holiday listed in Article. 47, both were assigned to inspection duties at the same job site. They were supplied with Ministry vehicles . . . . 2 -2- for the necessary travel between the headquarters and the job site. They were requested to work a total of eight hours each and were authorized to travel thirty minutes within the eight hours, that being the time required for the round trip. Both left and returned to the headquarters within the eight hours they were scheduled to work. In fact, due to inclement weather, they were not required to remain on the job site for more than a few hours. They received holiday pay in accordance with Article 19 (as it then provided) amounting to twelve hours’ pay and eight hours’ compensating leave. Their claim for a travelling time credit of fiur hours under Article 23.5 was denied. We are of the view that underirticle 23.1 “travel” is effectually defined for the purposes of Article 23 as authorized travelling time outside of working hours. Article 23.5 is not a “notwithstanding” provision and the word “travel” as it appears therein can only mean travel within the terms of the definition. To concrude otherwise would mean that travelling time credits not only under Article 23.5 but under Articles 23.2, 23.3 and 23.4 would be determined without reference to the definition, a result that would render it futile and cannot have been intended. Viewed from another perspective, Article 23.5 does not create a new category of, or a new entitlement to, travelling time credits as such. Rather, it simply contains a guarantee that if it is necessary for an employee to travel on his regular day off or on a holiday, outside the hours he is to work, he will receive at least the stated minimum travelling time credit. In this, the article is akin to reporting, or call-in, or stand-by provisions commonly found in collective agreements under which employees are guaranteed a minimum payment . . . . 3 -3- of wages as compensation for personal inconvenience or the disruption of what would otherwise be free time. We cannot subscribe to the argument Tade by counsel to the grievers that the travel in question here was outside of working hours because it occurred on a holiday and was therefore outside their normal hours of work as Schedule 4 employees. As counsel to the Ministry pointed out, the term “working hours” in Article 23.1 is not qualified by a word such as “normal”, or “regular”, or “scheduled”. We incline to the opinion that the term means actual hours spent at assigned work, regardless - when that work is performed. There is, as well, the clear implication in Article 23.1 that payment for working time and payment for travelling time are mutually exclusive. Whet’her, in a particular case, time is properly classified as “working” or as “travelling” will depend on the surrounding circumstances. Counsel referred us to a number of cases in which Article 23.(and its predecessor) was considered by the Board with rather divergent outcomes. We do not believe that it would be constrtictive to review them here. We do, however, record our concurrence with the line of reasoning to the effect that the sections of the article are integral parts of the whole and no*= of them can be construed in isolation. As an illustration, the conditions invariably applicable to all travelling time are found in Article 23.1 and the basis invariably used to calculate all travelling time pay is found in Article 23.6. ..a.4 -4- In the result, we find that on July 1, 1981, a holiday, the grievers did not engage in authorized travel outside their working hours so as to qualify for the minimum travelling time credit available under Article 23.5. The grievances are accordingly dismissed. Dated at Toronto, this 7th day of J"lY > 1986. P.M. Draper, Vice-Chairman I. Freedman, Member G. Peckham, Member