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HomeMy WebLinkAbout1984-0370.Clements.85-06-11IN THE MATTER OF AN ARBITRATION Under THE CROWN EhlPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Alan Clements) and Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Befoce: 3. W. Samuels Vice-Chairman W. Walsh Member D. Gray Member For the Grievor: L. Rothstein Counsel Cowling dr Henderson Barristers EC Solicitors For the Employer: L. Kolyn Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: May 8, 1985 2 This is yet another case involving the question of whether time spent moving in a Ministry vehicle after regular hours is to be considered as ‘travelling time- or ‘overtime’. Under Article 23.1, employees are ‘credited with all time spent in travelling outside of working hours when authorized by the ministry‘, and this time is paid at the employee’s basic hourly rate (Article 23.6). On the other hand, Article 13.2 defines ‘overtime’ as ‘an authorized period of work’, and the overtime rate is one and one-half times the employee’s basic hourly rate (Article 13.1). Our case involves 139 l/4 hours during the years 1981 to 1984. This matter began as an individual grievance on the part of Mr. A Clements, but became a Union grievance by agreement of the partles. It Is to be decided, however, on the basis of Mr. Clements’ situation. Mr. Clements is a Party Chief, Soils, He works in the Ministry’s Northwestern Region out of .ThunUer Bay. A si.gnlflcant part of hts job 1s organizing and leading soils tests in the field. These tests are necessary,to determine the soils on which highway construction is to take place. During ihe ‘season’, from roughly mid-April to mid-November, he is out in the region (which runs some 1400 kilometen from the Manitoba border to the Elliott Lake cut-off), with a crew of four casual summer employees, and a full-time heavy equipment operator. The latter is in charge of the truck carrying the power auger, while Mr. Clements is entrusted with a Ministry vehicle for the season in which he carries the casual employees and all the equipment and clothing necessary for the job (safety jackets, lanterns, shovels, sampling bags, soil samples, road-signs, etc.). It is agreed that Mr. Clements is responsible for the vehicle and all its contents, and the safe journey of the casual employees. He checks over the vehicle thoroughly on a daily basts. The hours involved here were all spent out of regular working hours on the way to a work site from the local motel where the crew were staying, or from the work-site to the motel. There was no dispute that ‘it 3 was necessary for Mr. Clements and his crew t0 be at the Site during all Of the regular working hours, and that it was then necessary for Mr. ClementS to drive the vehicle and crew out of these regular hours. While Mr. Clements’ Position Specification does not mention ‘driving’ specifically, there is no doubt that, when the vehicle is put under his responsibility, and when he is charged with the supervision of the field investigations, his job necessarily involves’the care, custody, and safe driving of the vehicle, with the equipment and crew. Indeed, his Position , SoeClflCatlOn sneaks of carrying out -related duties... as aSSlgneb, and we have no difficulty in finding that driving the vehicle in this case is such a duty. Counsel for the Ministry acknowledged at the outset that Mr. ClementS had responslblllty for the vehicle, contents, and crew. Mr. R. Girard, Head of the Geotechnical Section in the~Northwestern Region during the relevant period, was in charge of three Units, among them the Soils ,Uni t. He acknowledged readily that Mr. Clements was responsible-as described here. Now, the jurisprudence is relatively clear in this area. It was revtewed entirely In the latest decision of this Board on the potnt-- Anwy//, 406/83 The distinction between ‘travelling time’ and ‘overtime’ has always rested on whether or not the employee was ‘working’ at the time. Article 23.1 does not provlde for~credit fOru travelling time, but only for such time spent ‘outside of working hours’. And ‘working hours’ include the regular hours of work plus ‘overtime’. The jurispmdence indicates that ‘work’ involves continuing responsibility towards the employer. If an employee has continuing responsibility during a journey, then the time is characterfzed as ‘overtlme’, and not.‘traveiling tlme-. It has been established since Marcotte, S/76: that where an employee is the driver of a Ministry vehicle, and responsible for that vehicle, the driver Is entltled to ‘overtime’ for travel outside regular working hours. There appear to be no cases which suggest otherwise, and we agree with this award. Until the journey is over, the employee is not 2 . 4 released from responslblllty to the employer, and 1s ttWefOre still ‘at work’. When the employee is the passenger in the vehicle, the matter is less certain. In Cow/e, 99/7t! a correctional officer was held not to be entitled to overtime pay on the way to pick up certain inmates. And a similar result was reached in Bvc&~an, 34/78: In Rich, 442/82 it was not clear whether the grievor (a correctional off.icer) was the driver or passenger, therefore the Board dismissed the MinistryS argument based on COW/e. But In doing so, the unanlmous Board suggested (at page 5) that It might have taken a different view of the law from the Board in tow/< Finally, in Anwy/l, we dealt with a grievor who was not required to drive the vehicle, nor was he responsible for It, though often he did drive It. He claimed one hour’s overtime pay for time spent travelling from Samia to London as a passenger in a Ministry vehicle outside his regular working hours. Mr. Anwyll was a Fire Alarm Mechanic, and travelled his area to install, inspect, service, modify and maintain these alarms in Ontario Government bUlldIngS. He moved about as part of a two-man team in a truck loaded with the parts and equipment needed for his operations. We held that he was entitled to overtime pay because: (at page 7) ‘a. . b. Travel is an inherent part of the grlevor’s job. While his job description does not refer expressly to travel or driving Ministry vehicles, it is obvious that he can’t perform any of the functions mentioned unless he does travel. He cannot fulfil the purpose of his position without going from place to place in a specially equipped and stocked vehicle. Indeed, the grievor’s uncontradicted evidence is that he travels one-third of his regular working hours. 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 collee stop, the gr.ievor would have equal reSPOnSibility to see that the vehicle and its contents were safe. Surely the Win,istry would not want the grievor to relax and turn a blind eye ‘because he wasn’t at work any longer, he was responsibility-free’. His responsibility would continue until the vehicle, equipment and parts were safely returned.’ Thus, it would seem that it is less likely that a passenger would be entftled to overtime pay for a journey made out of regular hours, than lt Is for the driver: However, Anwyll demonstrates that if travel iS an inherent and substantial part of the employee’s job (in Anwy/l, the grievor was on the road virt.ually on a daily basis and spent one-third of his regular working hours travelling), and where the grievor usesparts and equipment which are carried in the vehicle and for which he hasa measure of responsibility, then even a passenger may be entitled to overtime pay. As the Board concluded in Anwyll (at pages 7-8): ‘It is one thing to be travelling on public transport or in one’s own vehicle, When there is no responslbllfty towards the employer. it is another, to be travelling in a Minlstry 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 still .-at work’ and entitled to overt ime pay.’ The Ministry’s argument in our case was essentially that Mr. Clements is not employed as a driver. He is an expert soils technician, and is employed as such. Therefore, he is not ‘at work’ after regular hours unless he is engaged directly in soils analysis. We don’t accept this argument. The overall purpose of his work, as set out In his Position Specillcatlon, 1s To Organize and SUperViSe the Work of soils field Party engaged in soil surveys...‘. This task involves morE ban k?ndS-On work On the soils. The field work depends 3n the well-functioning 6 of the Wlnlstry venlcle, all or the necessary clothlng and eCKJlDment, and the crew. Mr. Clements is assigned the vehicle for the season.and he is responsible for the vehicle, its contents and crew. It is Simply not reasonable to say that he is not ‘at work’ during a period in which the Ministry is holding him responsible for all of this property and a crew. He Can’t just leave the work site at the end of his regular hours. He has to get the vehicle, contents, and crew safely back to the motel. In sum, we a‘llow the Union grievan&. An employee in Mr. ClementS’ SltUatiOn is entitled to overtime pay for the hours spent on theroad OUtSlde of regular hours. We shall remain seized to determine the amOUnt of compensation due to Mr. Clements, if the parties are unable to agree on this themselves. The parties agreed that, if we found that Mr. Clements was entitled to overtime pay in respect of the 139 I /4 hours during the period I98 I to 1984, then in the’future he would receive compensating leave of one and one-half hours for each overtime hour, pursuant to Article 13.4 of the COlleCtlVe agreement. With respect to the 139.1/4 hours, it was agreed by the parties that he should receive pay at the overtime rate in lieU of compensating leave, pursuant to Article 13.5. 7 Done at London,.Ontario, this 11th day Of June, 1985. J. W. Samuel& Vi&?-Chairman "W. Walsh" W. Walsh, Member 9. Gray" 0. Gray, Member