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HomeMy WebLinkAbout1982-0275.Fawcett.84-05-01180 Dundas STREET ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD WEST. TORONTO. ONTARIO. M5G lZ8 -SUITE 2100 TELEPHONE 416/598- 0688 275/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (James H. Fawcett) Grievor and The Crown in Right of Ontario (Ministry of Transportatation and Com municat ions ) Employer P.M. Draper Vice Chairman R. Russell Member E.R. O'Kelly Member For the Grievor: P. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: J. Zarudny Counsel, Crown Law Office Civil Ministry of the Attorney General Hearings: January 18, 1984 January 24, 1984 -2- DECISION The Grievor, James Fawcett, grieves that he has been denied credits for time spent in travelling in contravention of Article 23(1) of the collective agreement, and requests that he be given credits in accordance with that article for time so spent. The grievance was filed on April 14, 1982, so that the matter comes before us under the collective agreement in force on that date. The issue to be determined has not previously been considered by the Board. The relevant articles of the collective agreement are the following: ARTICLE 7 - HOURS OF WORK 7.1 7 .2 7.3 7.4 SCHEDULE 3 and 3.7 The normal hours of work for employees on these schedules shall be thirty-six and one-quarter (36- 1/4) hours per week and seven and one-quarte (7 1/4) hours per day. SCHEDULE 4 and 4.7 The normal hours of work for employees on these schedules shall be forty (40) hours per week and eight (8) hours per day. SCHEDULE 6 The normal hours of work for employees on this schedule shall be a minimum of thirty-six and one- quarter (36-%) hours per week. SCHEDULE A Averaging Hours of Work - see Appendix 3 attached. -3- 7.5 7 -6 7.7 Where the Employer adjusts the number of hours per week, on a schedule, the employee’s weekly salary based on his basic hourly rate shall be adjusted accordingly. The adjustment will be discussed with the Union prior to such adjust- ment being made. It is understood that other arrangements regard- ing hours of work and overtime may be entered into between the parries on a local or ministry level with respect KO variable work days or variable work week. The model agreement with respect to compressed work week arrangements is attached as Appendix 4. Where the Employer intends to transfer employees or an employee from one schedule to another schedule, the Employer will discuss the transfer with the Union prior lo such transfer. When the transfer occurs, the employee’s weekly salary based on his basic hourly rate shall be adjusted acccordingly . ARTICLE 8 - DAYS OFF 8.1 There shall be two (2) consecutive days off which shall be referred to as scheduled days off, except that days off may be non-consecutive if agreed upon between the employee and the ministry. ARTICLE 13 - OVERTIME 13.1 The overtime rate for the purposes of this Agree- ment shall be one and one-halE(1-1/2) times the employee’s basic hourly rate. 13.2 In this Article, *‘overrtime” 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 performed on a scheduled days off. 13.3.1 Employees in schedules 3.7 and 4.7 who perform authorized work in excess of seven and one- quarter (7-%) hours or eight (8) hours as applic- able, shall be paid at the overtime rate. Overtime shall be paid within two (2) months of the pay period within which the overtime was actually worked. 13.3.2 -4- 13.4 Employees in Schedules 3 and 4 who perform authorized work in excess of seven and one- quarter (7-%) hours or eight (8) hours as applic- able, shall receive compensating leave of one and one-half (I-½) hours for each hour of overtime worked, at a time mutually agreed upon. Failing agreement, the ministry shall reasonably deter- mine the time of the compensating leave. 13.5 Where there is mutual agreement, employees may receive compensating leave in lieu of pay at the overtime rate or may receive pay at the overtime rate in lieu of compensating leave. 13.6 Compensating leave accumulated in a calendar year which is not used before March 31 of the following year, shall be paid at the rate it was earned. Effective March 1, 1978, the March 31 date may be extended by agreement at the local or ministry level. 13.7.1 Employees who are in clasifications assigned to Schedule 6 and who are required to work on a day off, shall receive equivalent time off. 13.7.2 Notwithstanding 13.7.1 and Article 19.6 (Holiday Payment), employees who are in classi- fications assigned to schedule 6 and who are assigned to forest fire fighting or related duties, shall be paid one and orre-half (1-½) times the employee'., basic hourly rate, to be calculated on the basis of thirty-six and one- quarter (36-¼) hours per week, for all such work after eight (8) hours in a 24-hour period. ARTICLE 19 - HOLIDAY PAYMENT 19.1 Where an employee work or? a holiday included under Article 47 (Holidays), he shall be paid at the rate of two (2) times his basic hourly rate for all hours worked with a minimum credit of seven and one-quarter (7-¼), eight (S), or the number of regularly scheduled hours, as applicable. 19.2 In addition to the payment provided by section 19.1, an employee shall receive either seven and one-quarter (7-¼) or eight (8) hours pay as applicable at his basic hourly rate or com- pensating leave of seven and one-quarter (7-¼) or eight (8) hours as applicable, provided the employee opts for Compensating leave prior to the holiday. -5- 19.3 19.4 19.5 19.6 When a holiday included under Article 47 (Holidays) coincides with an employees sched- uled day off and he does not work on that day, the employee shall be entitled to receive another day off. Any compensating leave accumulated under sections 19.2 and 19.3 may be taken off at a time mutually agreed upon Failing agreement, such time off may be taken in conjunction with the employee's vacation leave or regular day(s) off. Any compensating leave accumulated under sections 19.2 and 19.3 in a calendar year which is not used before March 31 of the following year shall be paid at: the rate it was earned. Effective March 1, 1978, the March 31 date mag be extended by agree- ment at the local or ministry level. Notwithstanding anything in Article 19, employees who are in classifications assigned to Schedule 6 and who are required to work on a holiday included in Article 47 (Holidays) shall receive equivalent time off. ARTICLE 23 - TIME CREDITS WHILE TRAVELLING 23.1 Employees shall be credited with all time spent in travelling ourside of working hours when authorized by the ministry. 23.2 When travel is by public carrier, time will be credited from me (1) hour before the scheduled time of departure of the carrier until one (1) hour after the actual arrival of the carrier at rhe 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. -6- 23.5 23.6 The 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. All travelling time shall be paid at the employee’s basic hourly rate or, where mutually agreed, by compensating leave. Grievor has been employed by the ministry since May, 1956. Prior to 1980 he was classified Highway Construction Inspector and was on Schedule 4. He then worked an 8 hour day and a 40 hour week and received overtime pay or compensating leave for work, and credits for time spent in travelling, outside those hours. In September, 1980, he was reclassified Quality Assurance Officer, was transferred to Schedule 6, and received a salary increase. No change in his job duties occurred as a result of this reclassification and transfer. The schedules mentioned, among others, have been established by the Employer for wage and salary administration purposes. The Grievor is attached to the Northern Region of the ministry, whose headquarters is at North Bay. His territory runs north for 500 miles, east for 100 miles, south for 100 miles and west for 150 miles. He formerly drove himself to construction sites in a ministry car, but for the past year has been driving in his own car and receiving a mileage allowance. His duties have to do with concrete inspection. He visits ready -mix plants to check on aggregates and mix design, and construction sites to ensure that field inspectors are taking the necessary quality assurance tests and to take some of his own. The required testing equipment is kept at the sites. A concrete pour could take place at any time of the day or night and pouring could continue for several hours. -7- Construction continues year-round but at a lower level in the period November to March. Thirty percent of his time is spent in the field during those months and 98 percent during the remainder of the year. When he is not in the field he works at the region's headquarters, where his daily working hours are 8:15 a.m. to 4:30 p.m. He normally works a 5-day week, Monday to Friday. He is entitled to 2 consecutive days off, currently Saturday and Sunday, under Article 8, and to the holidays listed in Article 47. Under Articles 13.7.1 and 19.6 he is entitled to equivalent time off for work performed on days off and on holidays. He is not paid by the hour but receives an annual salary which is calculated as a weekly amount and is paid bi-weekly. A form maintained by the ministry as part of its personnel records shows the Grievor as a Schedule 6 employee, his base salary as a weekly amount and his hours of work per week as 36¼. The Grievor first raised the matter of credits for time spent in travelling with the ministry about one year after his reclassification and subsequently broached the subject several times. He was told that he was not eligible for such credits but did not file a grievance under Article 23 until the present one. For performance budgeting purposes the ministry records separately time spent by employees in travelling between 8:15 a.m. and 4:30 p.m., and in travelling outside those hours, on normal working days, The purpose is to monitor work distribution by showing the relationship of time spent in travelling to time spent in performing job duties. The Grievor has been recording his travelling time at the ministry's request since his reclassification, but knew that he would not receive credits for it because of ministry policy. -8- Counsel to the Grievor submits that working time, overtime and travelling time are all treated separately in the collective agreement; that, in practice, the Grievor has normal and regular hours of work per day and per week; that travel is not part of the Grievor4 job duties; and that a method of calculating a basic hourly rate for the Grievor is already recognized by the Employer. Counsel to the Employer submits that in the circumstances present here, travel is not distinguisable from work; that while the Grievor's travel is authorized, it is not compensable; that, having no maximum number of hours of work per week, the Grievor spends no time in travelling "outside of working hours" as required by Article 23.1; and that, being paid a weekly salary, the Grievor has no "basic hourly rate" by which an entitlement to travel credits may be calculated under Article 23.6. Article 13 - Overtime, makes specific provision for the eligibility of employees on certain schedules other than Schedule 6 for overtime pay or compensating leave for work performed "on a scheduled working day in addition to the regular working period" or on a scheduled day off. Separate provision is made for the eligibility of employees on Schedule 6 for equivalent (not compensating) time off for work performed on a day off. Article 19 - Holiday Payment, makes specific provision for the eligibility of employees who work "regularly scheduled hours for holiday pay, as defined, for work performed on a holiday. Separate provision is -9- made for the eligibility of employees on Schedule 6 for equivalent (not compensating) time off for work performed on a holiday. Article 23 - Time Credits While Travelling, is addressed to all employees. It makes no distinctions amongst employees on the basis of schedules or regularly scheduled hours. It contains no "in lieu" provision for employees on Schedule 6. It does not define time spent in travelling as a period of work. It provides credits for time spent in travelling outside of working hours. It is important to note that this is not a case in which the issue is whether an employee, who is eligible for both, is entitled to pay at the overtime rate or compensating leave under Article 13, or to credits for time spent in travelling under Article 23. Here they are not available as alternatives; under Article 13 the Grievor is not eligible for overtime pay or compensating leave in any circumstances, and is eligible for equivalent time off only, for work performed on a day off. We see no authority in the collective agreement for the characterization of time spent by the Grievor in travelling as overtime work. A 1981 ministry memorandum addressed to employees holding the same position as the Grievor but in another region states, in part: We consider your duties can most effectively be performed by working a minimum of 7¼ hours per day; and further: "Travel time" outside normal hours on normal working days is considered as overtime and therefore no compensation. - 10 - The Employer's reply to the grievance after the second stage meeting was the following: I have thoroughly reviewed the information placed before me at the Second Stage Grievance Hearing and must unfortunately advise you that your grievance is denied. Very briefly, it is my interpretation that the parties intended Schedule 6 employees to receive all-inclusive compensation when they negotiated the Collective Agreement. Because of this, there are no maximum hours of work and Article 23 does not apply. There is however, Article 19.6, which refers to time worked on a holiday or day off, and I have decided that the time you spent travelling to the contract sites is eligible for equivalent time off as it was '"work" on your days off. You are therefore entitled to: July I, 1982 September 19, 1982 8 hours October 30,1982 1 hour 16 hours total By copy of this letter, I am requesting the Payroll Section to make the appropriate corrections to your pay. It appears that reference should have been made to both Article 13.7.1 and Article 19.6 since both days off and holidays were involved. Apparently, the Employer originally recognized hours spent by the Grievor in performing his job duties on the days in question for compensation purposes, and later, in answer to the grievance, recognized hours spent by him in travelling as "work" for which additional compensation was due. It is undoubtedly true that the Grievor does not have a basic hourly rate of pay as that term is commonly understood. However, where remuneration relates to a time period other than one hour, it does not strain reason to suggest that a basic hourly rate may be determined by - 11 - dividing the remuneration by the number of normal hours of work in which it is earned. For example, the Grievor’s weekly salary at the time of his transfer to Schedule 6 was presumably adjusted "based on his basic hourly rate" under Article 7.7. Similarly, if the minimum "normal hours of work per week under Article 7.3 were to be adjusted, the Grievor’s weekly salary would presumably be adjusted "based on his basic hourly rate" under Article 7.5. The intention of the parties embodied in Article 7.3 is to be gathered, in the first instance, from the language in which it is expressed. As well, the article must be examined in its relationship to the whole collective agreement, and in the context of the particular circumstances in which the Grievor performs his job duties. The definition of "normal hours of work" as a minimum might be seen to imply that there is no maximum. But if it is open to the Employer to contend that there is no upper limit to the number of hours that the Grievor may be required to work per week, it is equally open to the Grievor to contend that there is no lower limit to the number of hours per day or the number of days per week he may choose to work, so long as he works at least 36¼ hours per week. These, of course, are possibilities that do not accord with the realities of working life, not least because they are administratively impracticable; and, in fact, the Employer and the Grievor have recognized that practical considerations preclude so literal an interpretation of the article. - 12 - In Re Canadian General Electric Co. Ltd., 4 L.A.C. 1541 (Laskin, 1953) the arbitrator expresses the view that the practice followed under a collective agreement is an acceptable guide to interpretation unless it is inconsistent with the terms of the collective agreement; and further, that it is sensible construction to find concordance between the terms of a collective agreement and the feasibility of their administration, again unless those terms do not permit of that course. In Re Kysor of Ridgetown Ltd., 18 L.A.C. 382 (Weiler, 1967) the arbitrator suggests that the language, structure and purpose of collective agreement terms should be examined in order to determine their application to a grievor's circumstances and that such terms should be interpreted so as to exclude situations that are unworkable for administrative reasons. Applying those criteria to the interpretation of Article 7.3 as it affects the Grievor, we find that its purpose and effect is to ensure that the Grievor is available and is obligated to carry out his job duties as the number and status of construction projects under way in the region requires from time to time. We are also of the opinion that the Grievors working hours are unlimited only in the sense that the demands of construction projects dictate when and how long he works, and that the Employer has tacitly accepted that the Grievors normal hours of work are 7¼ per day and 36¼ per week. - 13- To address another aspect of the issue, we are not persuaded that because Article 7.3 applies to the Grievor, Article 23 does not; we do not consider that those two articles are incompatible. If the intention of the parties to the collective agreement was that Article 23 would not apply to Schedule 6 employees, the article itself is the logical vehicle for that purpose. If such was the intention, we would expect to see in the article language that would either affirm its inapplicability to such employees or make alternative provisions applicable to them as in Article 13 and Article 19. In short, we would require that intention to be conveyed in unequivocal and definitive language rather than having to be inferred by reference to Article 7.3. In the result, we find that Article 23(1) applies to the Grievor and that, for the purposes of the article, his working hours are a minimum of 7¼ per day. Under present practice the Grievor is already paid for time spent in travelling on days off and on holidays, since the Employer classifies it as work The practical effect of this decision, therefore, is that the Grievor is also eligible for credits for time spent daily during his normal work week in travelling outside the greater of 7¼ hours or the number of hours actually spent in performing his job duties, when authorized by the ministry. We retain jurisdiction in the matter in order to determine, if requested, the amount of the credits in respect of travelling time, in pay or leave, to which the Grievor is entitled pursuant to this decision. - 14- DATED at Comecon, Ontario this 1st day of May, 1984. P.M. Draper Vice Chairman R. Russell Member R. Russell Member "I dissent" (see attached) E.R. O'Kelly Member /lbw DISSENT The grievor was reclassified and transferred to Schedule 6 as of September 2, 1980. As a result of this move, he received a substantial increase in pay and at the same time received an annual salary rather than an hourly rate. Furthermore, under the provision of Art. 7.3 of the collective agreement, his normal hours of work became a minimum of 36 1/4 hours per week - with no maximum. As a Schedule 6 employee, the grievor is largely free to make his own decisions about travel time and working hours because Schedule 6 employees are not eligible for extra compensation for these hours. This is also an administrative convenience for the employer because it is not necessary to set up procedures to authorize and verify these hours for such employment. The grievor was well aware of the fact that he was not entitled to overtime or travel time and he confirmed this in cross-examination. He worked under Schedule 6 conditions from September 2, 1980 and only filed this grievance on April 14, 1982. In Canadian General Electric Company Ltd. 4th L.A.C. (Laskin 1953) the arbitrator states "it is sensible construction to find concordance between the terms of a collective agreement and the feasibility of their administration." Also, in Kysor of Ridgetown Ltd. L.A.C. 382 (Weiler 1967) the arbitrator suggests that the language structure and purpose of collective agreement terms should be examined in order to determine their application to the grievor's circumstances and that such terms should be interpreted so as to exclude situations that are unworkable for administrative reasons. Certainly, in this case the nature of the job is such that the grievor decides when he will leave for and return from work in the field and not being entitled to either overtime or travel time on normal working days, it has not been necessary to set up administrative procedures to verify these hours. Art. 23.1 does not exclude Schedule 6 employees but on the other hand it does not specifically include them. excluded them and in my view it should be a matter for negotiation if the parties wish to change this. Past practice has always Art. 23.3 calls for an assigned hour of departure (when starting The employer out) and an assigned hour of departure from the destination. could not do this and these decisions are therefore left to the grievor. Art. 23.6 states all travelling time shall be paid at the employee's basic hourly rate, or where mutually agreed, by compensating leave. hourly rate if it is calculated by dividing the grievor's weekly pay by his minimum hours of work. In this case it would in my view provide an excessively high In view of all these circumstances, I would have dismissed the grievance.