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HomeMy WebLinkAbout1983-0406.Anwyll.84-01-19IN THE blATTER OF AK ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TiiE GRIEVANCE SETTLE1IEXT BOAR5 Between: OPSEU (Robert vi. Anwyll) Griever - And - The Crown in Right of Ontario (Ministry of Government Services) Employer Before: J.W. Samuels Vice Chairman E. McVey Member A. McCuaig hlember For the Griever: N.A. Luczay Grievance Officer Ontario Public SerGice Employees Union For the Employer: E. Noses Staff Relations Officer Ministry of Government Services Hearing: December 14, lBS3 The issue in this case is whether the grievor is entitled to overtime pay or travel pay for an hour he spent travelling from Sarnia to London as a passenger in a Ministry vehicle outside his regular working hours. The agreed facts are: 1. Mr. Anwyll is currently employed by the Ministry of Government Services in the London District office, as a Fire Alarm Mechanic, classified as an Electronics Technician 2, (in Schedule 4.7), and his grievance is properly before the Board. 2. On April 7, 1983, Mr. Anwyll was scheduled to work from 8:00 a.m. to 4130 p.m. 3. Mr. Anwyll was assigned along with Mr. Ivan Viher to the Sarnia Cotirthouse to carry otit tF;?ir duties on April 7, 1983. 4. Mr. Anwyll and Mr. Viher had to wait till the courts rose for the day, before they could complete their work of testing the fire alarm systems. 5. Mr. Anwyll completed his work by about 7:15 p.m. along with Mr. Vihef, and had dinner between 7:15 p.m. and 8:OO p.m. 6. Mr. Viher, accompanied by Mr. Anwyll, drove the Ministry's vehicle back from Sarnia to London and returned to his place of employment by 9:00 p.m. 7. At no time was Mr. Anwyll responsible for the vehicle in any manner, nor was he required to drive it. 8. Mr. Anwyll received overtime pay (Article 13) for 3% hours, ie. for the period from 4:30 p.m. to 8:00 p.m., and travel time pay (Article 23) for 1 hour ie. for the period from 8:00 p.m. until 9:00 p.m. 9. Mr. Anwyll is claiming overtime pay in accordance with Article 13 of the Collective Agreement for the time he spent in travelling back to London from Sarnia, ie. 8:00 to 9:00 p.m. on April 7, 1983. In addition, documentary and oral evidence at our hearing disclosed the following: IO. The griever's Job Description is: Purpose of Positis -__.--.~ -.--. ~--. To install, inspect, service, modify and maintain in go36 operating condition fire alarm systems in Dntario Government Uuildings throughOut assigned area. - 3 - Summary of Duties and Responsibilitie> 1. Carries out inspection, servicing and maintenance 60% of fire alarm systems by performing tasks such as:- - inspecting and testing systems regularly in accordance with established schedule; - servicing systems by cleaning contacts, replacing parts found to be defective, etc.; - attending to calls for service, tracing cause of malfunctions and making necessary adjustments and minor repairs. 2. Repairs, modifies and modernizes fire alarm systems 15% as assigned or as result of prior inspection by performing tasks such as:- - carrying out field investigations into related problems, recommending corrective action and/or alternatives; - completing all work necessary such as changing location of detectors to suit changed space conditions, adding smoke detectors, integrating into existing systems, etc. 3. Installs firealarm systems in buildings in accordance 15% with drawings and specifications by performing tasks such as:- - familiarizing self with requirements by reference to construction drawings, specifications and discussions with supervisor; - installing components in buildings, integrating into the total systems, having necessary power connections made by a certified electrician. 4. Performs other auxiliary duties such as:- IO%- preparing estimates of man-hours and materials required, and completing reports on work projects, as required; -as assigned. Skills and Knowledge Required to Perform the Work Completion of a recognized electronic course of study. Several years of field experience in maintenance and trouble shooting of fire alarm systems. Ability to repair and to carry out ,minor modifications. to electronic systems. Ability to read electronic schematic drawings. Familiarity with installation techniques. Good knowledge of electrical standards and codes. 11. One third of the &!rie?s:“s regular hdurs are Spent travellirlg from one job site to another. tiis region extends to Goderich I: in the north, Sarnia to the west, Woodstock to the east, and his headquarters are in London. 12. The griever's work requires use of a Ministry vehicle, which carries all the parts and equipment needed for his operations. Usually a two-man team goes out, and the vehicle operator is not designated by the Ministry. Indeed, it appears that in April 1983, the grievor drove the vehicle almost every time and signed it in on return. 13. In the past, the griever was paiti overtime whether he was the passenger or driver, but this changed when his supervisor learned that the passenger was to get only travel pay. The relevant provisions of the collective agreement are: Article 13 - Overtime 13.1 The overtime rate for the purposes of this Agreement shall be one and one-half (1%) times the employee's basic hourly rate. 13.2 In this Article, "overtime" means an authorized period of work calculated to the nearest half-hour and per- formed on a scheduled working day in addition to the regular working period, or performed on a scheduled day(s) 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) hoi?s as applicable, shall be oaid at the overtime rate. Article 23 - Time Credits While Travelling 23.1 Employees shall be credited with ail time spent in travelling outside of working hours when authorized by the ministry. 23.6 All travelling time shall be paid at the employee's basic hourly rate or, where mutually agreed, by com- pensating leave. The Union argues that for the hour in question the grievor was entitled to overtime pay at time and one-half. The Ministry argues that he is entitled only to travel pay at straight time. This Board has had occasion to consider these contract provisions on a number of occasions. In Marcotte, 54/78, the driver of a vehicle, who was a correctional officer, was held to be entitled to overtime pay when driving home after escorting certain prisoners out of town. The Eoard found tiiat the griever was still "at work" because (at page 9): Driving this particular vehicle cannot be characterized as essentially a responsibility-free activity. This was not a vehicle provided to the employee to effect all of his travel requirements the way a "company car" might be. This vehicle was not an ordinary passenger car and it, together with a credit card, had to be returned to the employer with the appropriate documentation completed. Moreover it was the grievor's.responsibility to transport a fellow employee back to Sudbury. In these circumstances we do not think the situation can be analogized to the gratuitious provision by the employer of transportation to the grievor back to Sudbury. Rather, the S&bury jail was getting its sixteen passenger vehicle back, possibly for use by others, and it was receiving the vehicle back in the same condition it was in when entrusted to the griever's custody. In Cowie, 99/78, the passenger in a vehicle, who teas a correctional officer, was held not to be entitled to overtime pay-on the way to pick up certain prisoners. The Board found that the grievor was not "at work" until the escort began, and therefore was entitled only to travel pay (at pages 3 to 4): The griever's travel to the Perth Jail was essentially responsi- bility free and under conditions which cannnt be considered as "work" within the meaning 2: the collective agreement. It is not clear from the award whether or not the grievor had any responsibility whatsoever for the vehicle. For example, what if the driver had a heart attack, would the gri?vor have to get the van home? In Rich,,442/82, it was not clear whether the grievor (a correctional officer) was the driver or passenger, therefore the Board dismissed the Ministry's argument basej on Cowie. However, the unanimous Board did comment on Cowie (at oage 5): 'We nay have taken a different view of the law in this case:' In Haddock and Campbell, 104/80, the grievors drove their own automobiles to and from work on holidays. The Board ruled that this was not travel time whether done within regular hours or outside regular hours. There was no issue concerning ~: overtime pay in this case. In Buchanan, 34/78, the facts were similar to Cowie and the Board followed the earlier decision. In our view, this jurisprudence leads to the conclusion that, in prin- ciple, the issue of whether an employee is entitled to overtime pay or travel pay depends on whether or not the employee is undertaking responsibilities during the course of the journey. And this would accord wit? the collective agreement. Article 13.2 defines "overtime" as a "period of work". Under Article 23.1, travel time is time spent travelling "when authorized by the ministry". In each parti- cular case, the issue becomes what is the "work" of the efi2loyee involved. Again, we have some doubt about ':hr: %Ipli catix of the principle in Cowie and Buchanan, but we did Wi nave the benefit 0: ai! the eviden;:? which -- I---- - 7 - might have been before the Board in those cases. However, we have no doubt that the grievor here, even though a passenger, was still at work from Sarnia to London on April 7, 1983. We have come to this conclusion for a number of reasons: a. Travel is an inherent part of the grievor's.job. While his job description does not refer expressly to travel or driving Ministry vehicles, it is obvious that he can't perfcrm any of the,functions mentioned unless he does travel. He cannot fulfil the purpose of his position without going from place to piace in a specially equipped and stocked vehicle. Indeed, the grievor's uncontradicted evidence is that he travels one-third of his regular working hours. b. Whether driving or not, the grievor is clearly responsible to the Ministry for the vehicle and its contents. Whether driving or not, the grievor bears a certain responsibility to get the vehicle back safely. If the grievor was a passenger and the driver had a heart attack, obviously the grievor would have to get the vehicle back to headquarters. At a gas station, or a coffee stop, the grievor would have equal responsibility to see that the vehicle and its contents were safe. Surely the Ministry would not want the grievor to relax and turn a blind eye "because he wasn't at work any longer, he was responsi:i:ity-Free". I-lis responsibility would continue until the vehicle, equipment and parts were safely returned. It is one thing to be travel1 iii!: :)I: pljtilic rr3;!iport 3r in one's own vehicle, when there is no resoonsibili?y :owards th.? i?~pl~i’&r. it is another to - 8 - be travelling in a Ministry vehicle, engaged on the employer's business, doing a necessary part of one's job, and having a measure of responsibility for the employer's property. In the latter case, one would expect that normally the employee is stiil "at work" and entitled to overtime pay. The grievor was not a passenger in a chauffeur-driven vehicle, where the chauffeur bore the sole responsibility for the vehicle. He happened to be the passenger, but he was part of a two-man team at work with a vehicle necessary to the work, and both men had a measure of responsibility for the vehicie and its contents. In sum, the grievance is aliowed. iiie griever ihil be paid the differerce between overtime pay and travel pay for his hour from Sarnia to London. Done at London, Ontario, this J.W. Samuels, bice Chairman y$ch;$* E. McVey, Member . . -9- EXHIBITS 1. Grievance Form 2. Job Specification 3. Vehicle Log Sheet . .