GSB# 2006-2348

UNION# 2006-0611-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Daye)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

D. Brian Loewen Senior Counsel Ministry of Government and Consumer Services

HEARING

March 5, 2008.

Decision

The grievor, Mr. Chris Daye, is employed as a Fire Crew Leader with headquarters in Wawa, Ontario in the East Region of the Ministry’s Fire Program. He has grieved that the employer contravened the collective agreement by paying him travel time rates, instead of overtime rates, for certain periods of time he spent on 28^th and 29^th of July, 2006 travelling to British Columbia to respond to a fire in Creston.

The parties argued this matter solely on the basis of an agreed statement of facts, which reads:

AGREED STATEMENT OF FACTS

1. This matter involves an individual grievance submitted by a seasonal Fire Crew Leader (RT3) from the Wawa Fire Management Headquarters and the application and interpretation of Article 14 (Time Credits While Travelling) and Article 32.7 (Overtime) with respect to seasonal fire rangers.

2. The parties agree and acknowledge that time spent in travelling outside of working hours while travelling to training, conferences or other meetings are appropriately credited pursuant to Article 14 and is not an issue in this grievance.

3. The Ministry’s fire program is seasonal in nature and many of its employees are employed on group 3 seasonal contracts which run anywhere from April to October in a given year. All of the ministry’s forest fire ranger positions are unclassified (fixed-term).

4. Although the exact dates of a fire season, and therefore, employment contracts are dependent on a variety of factors relating to weather etc., most seasonal fire rangers are on contract from May-August with the possibility of extensions on either end.

5. The province’s fire program is divided into two regions (East and West) and these regions operate in a similar manner. In the East, the region is further divided into sectors which may be comprised of more than one district. In the West, the sectors are comprised of only single districts.

6. There are seven fire management headquarters in the West Region and nine in the East.

7. Fire ranger crews are made up of seasonal OPSEU employees with hierarchical classifications in which they are ranked by responsibility. Fire ranger crews are made up of three members in the East Region and four members in the West.

8. This grievance arises from Wawa (East Region) and the crews in that Region are made up of one Crew Leader (RT3), one Senior Crew Member (RT2), and one Crew Member (RT1). Attached are copies of the relevant position specifications.

9. Depending on how each fire season plays outs, there can be significant travel for fire rangers as they are assigned to fight various forest fires around the province. It is also possible to be sent across Canada or to several U.S. states under a reciprocal partnership agreement in place between the various governments.

10. Fire ranger crews for out of province assignments may be comprised of a different number of employees.

11. Some of this travel will occur outside of regular working hours or on days off and/or holidays.

12. In 2000, the MNR and OPSEU signed an MOU with respect to the treatment and application of travel time for fire rangers. This agreement was in place until November 1, 2004 when it was terminated at the request of the union. A copy of the Agreement is attached.

13. The 2005 fire season was the first to operate without the MOU and the Ministry established its own guideline to assist managers in the interpretation of Article 14. A copy of the Ministry’s guide is attached.

14. The Ministry’s guide to Article 14 interpretation indicates that there are some situations where travel outside of regular work hours would attract overtime and some situations where such travel was to be credited as travel time and paid at straight time.

15. Situations that would attract overtime included travel for fire assignment within a crew’s home sector in the East or home district in the West.

16. A distinction is drawn by the Ministry’s guide for deployment to a location outside of one’s sector or district, as the case may be, which in most circumstances, the guide indicates does not attract overtime. Similarly, the Ministry guide indicates that any travel by commercial or charter vehicle is considered travel time and does not attract overtime pay.

FACTS PARTICULAR TO DAYE GRIEVANCE

17. The grievor is a Fire Crew Leader.

18. This grievance arises out of a fire assignment that occurred on July 29, 2006 during which the grievor was one of 20 employees sent to British Columbia.

19. The grievor was designated as the Crew Leader for the twenty person crew but was not expected to perform any specific duties in this role until the assignment to a specific fire in Creston, British Columbia.

20. The crew was marshalled from various locations in the East Fire Region to Sudbury. Most stayed in overnight accommodations and the crew met at the Regional Fire Centre in Sudbury on July 29, 2006. The Regional Fire Centre is located adjacent to the Sudbury airport. The crew was flown to British Columbia before being dispatched to the fire location.

21. The grievor submitted a Report of Regular and Premium Payment Hours for the reporting period of July 17 to July 30, 2006, a copy of which is attached.

22. On July 28, 2006, the grievor worked a regularly scheduled day of 8 hours from 9 a.m. to 5 p.m. (all times Eastern time). During the latter part of this 8 hour day, time was spent travelling to Sudbury to overnight before flying out to B.C. for the fire assignment. The grievor and other members of the crew were passengers in a rented van driven from Wawa to Sudbury.

23. The grievor and the other members of the crew arrived at their hotel in Sudbury at 7:00 p.m. The grievor was credited with 2 hours of travel time for the time spent travelling beyond his regular shift.

24. July 29, 2006 was the grievor’s scheduled day off but due to the fire assignment he was required by the Employer to travel to British Columbia.

25. The grievor was paid travel time on July 29, 2006 commencing at 9:00 a.m. during which time he was awaiting the briefing and transportation at the Regional Fire Centre.

26. At 11:00 a.m. there was a briefing in Sudbury for which the grievor was credited for 1 hour at the overtime rate of pay.

27. The grievor had an unpaid one-half hour lunch break between 12:00 noon and 12:30 p.m.

28. The grievor was paid travel time from 12:30 p.m. to 9:00 p.m. during which time the flight to Cranbrooke, B.C. took place. The flight was a charted airplane which departed at 2:50 p.m. from the Sudbury Fire Centre apron at the Sudbury airport. There was a brief stop-over in Edmonton and the flight arrived in Cranbrooke B.C. at 8:30 p.m. The crew were bussed to a nearby hotel for a meal and briefing.

29. From 9:00 p.m. to 10:00 p.m. the grievor was again credited with an hour of overtime to attend a briefing in British Columbia.

30. The grievor was paid travel time from 10:00 p.m. to 1:30 a.m. during which time he travelled from Cranbrooke to Creston B.C. Following the briefing, the crew remained at the hotel until the bus departed from the hotel at approximately 12:00 midnight.

31. On Sunday, July 30, 2006, the grievor was on scheduled days off but was assigned to a specific fire at which the front line delivery of forest fire suppression occurred. The grievor was paid 14 hours of overtime pay for the performance of duties on this day including all travel to and from the specific fire location.

32. During the course of the transportation to British Columbia, the grievor was a passenger on the plane and other vehicles.

33. During the course of travel by commercial or charter vehicle, employees are expected to comply with all applicable policies, directives and legislation. In particular, they are to be in uniform (a shirt) while in transit but they are not assigned any duties.

34. A member of management, Ted Shannon, attended throughout the duration of the transportation to British Columbia as an Agency Representative. In this role, Mr. Shannon acted as the liaison between the crew and the B.C. staff and oversaw our crew and conducted briefings during the trip.

35. The Employer issued to the grievor equipment to bring with him including handheld radio equipment, radio batteries, a satellite phone, a GPS unit and an Initial Attack Incident Commander Kit.

36. Employees do bring their personal packs with them on these trips which would include personal effects and a Ministry issued tent and sleeping bag.

37. There was no expectation or direction given to the grievor that he was to hold onto any of the equipment or keep it in his personal possession during the course of the travel to British Columbia.

38. The grievor’s bags were transported from Wawa to Sudbury with him and the other members of the crew in the rented van.

39. Employees carried their bags from the Fire Centre to the apron in Sudbury and carried their bags from the airplane upon arrival in British Columbia. Employees placed their bags on the ground transportation bus which picked them up from the airport.

40. The employees are required to adhere to the baggage restrictions set by the carrier. None of the equipment in this circumstance was brought into the passenger area of the plane and was instead stored with baggage in the cargo area for the duration of the flight.

Issues to be Resolved

1. Was the grievor properly on travel time between 5:00 p.m. and 7:00 p.m. on July 28, 2006?

2. Was the grievor properly on travel time between 9:00 a.m. and 11:00 a.m. on July 29, 2006?

3. Was the grievor properly on travel time between 12:30 p.m. and 9:00 p.m. on July 29, 2006? In particular, was the grievor properly on travel time:

a. While at the Regional Fire Centre;

b. While carrying his personal packs and equipment;

c. While on the chartered flight to Cranbrooke.

4. Was the grievor properly on travel time between 10:00 p.m. and 1:30 a.m. on July 29, 2006? In particular, was the grievor properly on travel time:

a. While waiting at the hotel for transportation;

b. While travelling from Cranbrooke to Creston.

5. Would the decisions in paragraphs 1 – 4 be any different if the grievor was:

a. Not designated as the Crew Leader of the twenty person crew;

b. Was a Senior Crew Member;

c. Was a Crew Member.

(Appendices not reproduced)

Article 14, which the employer applied to the time periods in question, reads:

14.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry.

14.2 When travel is by public carrier, except municipally operated transit systems, time will be credited from one (1) hour before the scheduled time of departure of the carrier until one (1) hour after the actual arrival of the carrier at the destination.

14.3 When travel is by automobile and the employee travels directly from his or her home or place of employment, time will be credited from the assigned hour of departure until he or she reaches his or her destination and from the assigned hour of departure from the destination until he or she reaches his or her home or place of employment.

14.4 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.

14.5 When an employee is required to travel on his or her regular day off or a holiday listed in Article 17 (Holidays), he or she shall be credited with a minimum of four (4) hours.

14.6 All travelling time shall be paid at the employee’s basic hourly rate or, where mutually agreed, by compensating leave.

The grievor’s contention is that he should have received overtime pay under article 32.7 of the collective agreement at one and one half times his basic hourly rate for the hours in question, instead of travel pay under article 14.6 at straight time.

The Board’s jurisprudence on the issue of whether an employee’s work related travel activity constitutes “work” for purposes of compensation under the collective agreement has consistently recognized that the collective agreement draws a very specific distinction between “work” and “time spent travelling” (See, Re Buchanan 34/78 (Kennedy) at p. 6). In Re Marcotte, 54/78 (Adams) at p. 8, the Board described its task in such cases as follows

“Thus, in cases of the kind before us now the board must determine whether the travel related activity of the employee is, having regard to all the circumstances, a continuing aspect of the employee’s job duties and thus, amounting to an authorized period of work in addition to the regular working period under Article 13.2 or whether it is more appropriately characterized as travel which is essentially free of job duty responsibility and so properly paid for at straight time rates under Article 23.”

It is also evident that over the years the Board has issued numerous decisions on the issue of “overtime or travel time”. (See Re Gabriel et al, 2249/92 (Finley) at pp. 1-6 for brief summaries of 19 decisions on the issue). Both counsel before me acknowledged that the Board’s decisions over the years have not been always consistent, and do not disclose clear criteria that determine whether a particular travel activity undertaken outside an employee’s regular work hours constitutes work or travel time. They also appeared to be agreed that the parties themselves are responsible to a large extent for that inconsistency and lack of clarity, in that they have taken different positions in identical circumstances, depending on what was more advantageous in a given case.

Furthermore, practically all of the previous decisions of the Board involved travel by automobile, as driver or as a passenger. It appears that the Board has not had the occasion to deal with the circumstances before me, where an employee travels a long distance by a combination of road and air to respond to a fire outside the Province of Ontario.

As noted in the agreed statement of facts, following the termination of the Memorandum of Agreement with respect specifically to employees of the Ministry of Natural Resources engaged in forest fire fighting or related duties, the employer had developed its own guidelines. The guidelines at p. 1 indicate that the goal is to ensure that “we apply article 14 of the collective agreement consistently across the province”. It is trite to say that in the absence of a specific agreement between the parties, the provisions of the collective agreement which govern the “work or travel time” issue are the same for all employees covered by the collective agreement. Therefore, any guidelines unilaterally established by the employer must be in compliance with the applicable provisions of the collective agreement as interpreted in the case law.

The “confusion” referred to by the parties arises from the manner in which the Board has applied two criteria in determining whether travel outside normal work hours is work or travel time. In Re Rutherford 45/90 (Keller) the Board noted at p. 4 as follows:

In its jurisprudence, the Board has clearly, carefully and expressly recognized the two situations where an employee travelling outside normal hours of work is “at work” and entitled to an overtime rate of pay. The first circumstance, as expressed in Marcotte 54/78 (Adams) and Clements 370/84 (Samuels) for example, is where the employee has a continuing responsibility towards the employer during the course of a trip. The second, as expressed in Anwyll 406/83 (Samuels) is where travel is an inherent and substantial part of the job.

While the two above-noted criteria are clear, the inconsistency in the decisions is in their application. In Re Wright, 249/89 (Fisher) the Board reviewed five of its previous decisions, and at pp. 3-4 wrote:

We seem, therefore, to have a clear split in the cases, with three of the cases seeming to say that both elements are necessary in order for the time to be characterized as work and two cases which seem to say that if either element is present then it is work.

Which then is the Board to choose? It cannot be said that either line of cases is patently wrong, nor will the outcome of this case “harm” either the employee or the Union because each of the parties routinely switch sides depending on whether or not the individual grievor will benefit. Some grievors desire overtime, others want travel time, depending on their individual schedule classification.

Certainty in labour relations is an important goal. Sometimes, it is more important to have a clear and definite decision, one way or the other, rather than to continue a series of confusing and contradictory arbitral decisions. If the parties want to change the rules, they can do so at the bargaining table, but at least they should have a clear understanding, where possible, of what the rules are today.

This Board therefore determines the appropriate rule should be as in the Marcotte, Pileggi and Churchill cases, in other words, that the time is properly characterized as “work” if either:

a) travel during the employee’s regular hours of work is an inherent part of his job, or,

b) there is a continuing responsibility on the part of the employee during the period of travel to care for either Ministry property or other personnel.

The grievance is therefore dismissed.

Union counsel urged me to follow the finding in Re Wright to the effect that time should be treated as “work” if either criterion is met. It was his primary submission that the travel undertaken by the grievor on July 28 and 29^th, 2007 should be characterized as “work”, because travel was an inherent part of the grievor’s job as a Fire Crew Leader. He pointed out that the grievor’s job involved fighting forest fires, and that he would not be able to fight a forest fire without travelling to the site of the fire. He argued that where travel is required to be able to do “work”, the time spent travelling should be treated as work time regardless of the mode of travel or distance travelled.

In the alternative, union counsel submitted that in any event the grievor met the second criterion as well because during the periods of travel in question he was not completely responsibility free. He pointed out the following as indicative of continuing responsibility the grievor had while travelling on the particular occasion. The grievor was wearing the employer issued uniform, and was expected to comply with directives on how to wear the uniform. Moreover, the grievor was required to conform to employer policies and directives such as those prohibiting harassment and discrimination, and the use of alcohol and drugs. He was subject to the Code of Conduct, and continued to be covered by statutes such as the Workplace Safety and Insurance Act and the Occupational Health and Safety Act. Counsel argued that these circumstances are very different from a case where the employer simply pays for an air-ticket on a commercial flight. Since the grievor was subject to employer policies and directives as well as statutes, it was argued that the grievor was subject to a measure of control by the employer while travelling. The employer was entitled to exercise such control only because the grievor was “working”.

Employer counsel agreed that the grievor is required to travel to the site of a fire in order to carry out his duties. Thus when he is dispatched to a fire, the time spent travelling to the fire would constitute “work”. However, counsel drew a distinction between the deployment of an employee from one location to another in order to be dispatched to a fire, from the case of an employee being actually dispatched to a fire. He pointed out that during the travel in question, the grievor, together with the rest of the crew members was transported in a rented van from Wawa to Sudbury, and flown from Sudbury to Cranbrooke, British Columbia in a chartered plane. It was only upon his arrival in Creston that the grievor was assigned to a particular work assignment, i.e. he was dispatched to fight a forest fire. Until he received his briefing in B.C. the grievor would not even be aware of the location of the fire. Thus, until he was dispatched to the particular fire, he could not be said to be travelling to the fire. He was simply travelling to a location, in order to be dispatched to work from that location. It was only upon receiving the briefing that he starts to work. Thus the employer had paid him overtime rates for the time spent on the briefing in B.C., as well as the time spent travelling to the site of the fire in Creston.

Employer counsel submitted that once the union had withdrawn from the Memorandum of Agreement, the employer was left without any guidelines as to how to apply the collective agreement provisions to the travelling undertaken by its employees engaged in fighting forest fires. In order to ensure consistency, the employer had no option but to develop its own guidelines. Counsel submitted that the employer did so in a very rational and fair manner. He pointed out that under those guidelines, travel within a crew’s home sector in the East and home district in the West is considered as work time (Paragraph 15 of the agreed facts). Under the guidelines travel for the purposes of deployment to a location outside of an employee’s sector or district does not constitute work. Similarly, travel by commercial or charter vehicle is considered travel time which does not attract overtime pay. Counsel submitted that it was on an application of these rational and fair guidelines, that the employer determined that the grievor should not receive overtime pay for the travel activity in question.

Counsel for the employer disagreed that the grievor had any work responsibilities during the travel in question. He suggested by way of illustration that the grievor would have been completely free to sleep while being transported in the rented van or the charter plane, or while waiting for that transportation. Alternatively, he could have simply chatted or played cards with his crew members. Counsel submitted that the fact that the grievor was subject to employer policies and directives as well as legislation had no bearing on the issue, because those would apply in appropriate circumstances regardless of whether the grievor was on work time or travel time.

Employer counsel referred me to the following authorities: Re Tomasini, 71/78 (Adams); Re Cowie, 99/78 (Adams); Re Buchanan, 34/78 (Kennedy); Re Eaton, 646/83 (Samuels); Re Wang et al, 1889/90 etc. (Samuels); Re Leblanc, 2416/86 (Forbes-Roberts); Re Gabriel et al., 2249/92 (Finley); and Re Professional Engineers & Architects of the Ontario Public Service, 840/99 (Briggs).

Counsel particularly urged upon me that Re Tomasini (supra) sets out “the correct test”. There, the Board concluded that the grievor’s job duties included attending meetings at various municipal offices, and that to attend those meetings he was required to travel. The grievor had grieved that time spent travelling to a meeting on his regular day off should be compensated as travel time. In allowing the grievance, the Board wrote at pp. 6-7:

Moreover, a review of the grievor’s duties and responsibilities convinces us that he is not employed to drive as would be a driver but rather, such travelling as occurred on October 8, 1977 was incidental to his primary job duties and well within the kind of travel intended by Article 23. For example, Article 23.3 refers to travel aimed at taking the employee to a “destination”, where presumably, his principal job duties would be exercised. This is exactly the kind of travel undertaken by the grievor on October 8, 2977. The grievor in “Marcotte” was not engaged in responsibility-free travel but was engaged in the performance of a specific job duty.

It is to be noted that article 23.3 considered in that case was identically worded as article 14.3 in the agreement applicable here. That article commences with the words “when travel is by automobile and the employee travels directly from his home or place of employment”. Obviously the facts before me do not fall within that description. Nevertheless I find that Professor Adams in that case cited article 23.3 only as an example. Article 23.3 was not the basis for his decision. Rather his decision was based on whether or not the travel in question was responsibility free. This is consistent with the test he set out in Re Marcotte (supra), reproduced above at pp. 7-8.

The test of whether or not the employee was “responsibility free” has been applied in numerous decisions. This application is clearly illustrated when comparing the decisions in Re Marcotte, 54/79 (Adams) and Re Cowie, 99/78 (Adams). Grievors Marcotte and Cowie were correctional officers who together transported an inmate from one institution to another. The two officers delivered the inmate and returned to their own place of employment in a van. The return journey fell outside their regular hours of work. Each of them grieved separately, claiming overtime for the duration of the return trip. In Re Marcotte, the grievance succeeded because grievor Marcotte was driving the van. The Board held that the time in question was work time because it could not be considered “as essentially a responsibility-free activity”. When grievor Cowie’s grievance came before the same Vice-Chair, the result was the opposite. The Board concluded that the time spent by grievor Cowie on the return trip was travel time and not work time, because he was merely a passenger and had no work responsibility. At pp. 3-4, the Board wrote:

We have reviewed the facts as stipulated by the parties and have concluded that the grievor’s travel to the Perth Jail was essentially responsibility free and under conditions which cannot be considered as “work” within the meaning of the collective agreement. The parties have distinguished between “travelling outside working hours” and “work” within the meaning of Article 13.2. Effect must therefore be given to this distinction. Grievance denied.

The “responsibility free” test has also been applied by the Board in Re Buchanan, (supra) and Re Eaton, (supra). In Re Wang et al., (supra) at p. 3 the Board wrote:

The distinction between “work” and “outside of work” hinges on the matter of responsibility. This Board said long ago that “work” involves responsibility – and the corollary of this is that an employee is not working when the time is responsibility-free.

In Re Professional Engineers and Architects of the Ontario Public Service, (supra) at p. 26, the Board wrote:

Travel time outside normal working hours is not work unless there is a real job responsibility that is being discharged. Merely transporting oneself from one location to another is not sufficient. The vast majority of the travel at issue in these grievances is, as referred to by Vice Chair Adams in Tomasini, “incidental” to primary job duties.

The union relied on Re Anwyll, 406/83 (Samuels) in support of its position that time spent on travel is work, if travel was an inherent part of that employee’s job. However, a careful review of that decision reveals that in that case also, the test applied was whether or not an employee was responsibility free while travelling. Following a review of the Board’s jurisprudence, Vice-Chair Samuels wrote at p. 6:

In our view, this jurisprudence leads to the conclusion that, in principle, 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.

While Vice-Chair Samuels made reference to the fact that travel was an inherent part of the grievor’s job, Re Anwyll does not, in my view, stand for the proposition that any work related travel activity undertaken by that employee constitutes work. In that case the grievor was a Fire Alarm Inspector employed by the Ministry of Government Services who was required to travel to work sites in a ministry vehicle which was equipped with special equipment. In concluding that the grievor was “working” while travelling the Board wrote at p. 7:

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 perform any of the functions mentioned unless he does travel. He cannot fulfill 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.

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 responsibility-free”. His responsibility would continue until the vehicle, equipment and parts were safely returned.

It is evident from the above reasoning that while the Board considered the fact that travel was an inherent part of the grievor’s job, the travel in question was held to be “work”, only because the Board concluded on the evidence that the grievor continued to bear responsibilities while travelling. Any doubt about that was removed by Vice-Chair Samuels in Re Wang, (supra) where he commented on his own decision in Re Anwyll as follows:

The essential point in Anwyll was that the grievor was not simply moving from point A to point B, but had responsibilities towards the Employer during the trip. The primary responsibilities involved the Ministry vehicle and its contents. (p. 4)

At p. 6, he further elaborated:

Travel is not “work” merely because the employee in question does a lot of travelling. This is where the Ministry went wrong when it changed its practice. The Ministry issued a bulletin stating, among other things, that “When travel is an inherent part of the employee’s job, travel outside of normal working hours is considered work, not travel, and is compensated as such”. This statement obviously comes from the first part of the reasons in Anwyll quoted above (from page 7). But the Board in Anwyll did not say that the fact that travel is an inherent part of an employee’s job is sufficient on its own to classify a period of travel as “working hours”. The central point is that there must be some job-related responsibility during the period of travel. The Board in Anwyll was clear that the grievor’s travel was “work” because of his responsibilities relating to the Ministry vehicle and its contents. Travelling outside normal working hours is not “work”, unless during the travel the employee has some responsibility towards the Employer.

(original emphasis)

Upon a review of the provisions of the collective agreement as interpreted in the Board’s jurisprudence, the preferable view, and the one I adopt, is that the fact that travelling is an inherent part of an employee’s regular duties, by itself, does not turn any period of travel undertaken by such employee into “work”. This proposition was stated thus in Re LeBlanc, (supra) at p. 3:

Part of his regular duties (i.e. inspection) per force involves driving. One cannot perform an inspection unless one is at the location. This does not however mean that every time the grievor gets in his car that he is “working”.

Indeed, it is my conclusion that the sole test for determining whether time spent travelling should be treated as work or travel time in a particular fact situation is whether or not the employee was essentially responsibility free during the period of travel. While some cases have referred to the fact that travel was (or was not) an inherent part of the grievor’s job, that has not been a determining factor. That reference has only contributed to confusion. Whether or not travel is generally an inherent part of the employee’s job is really irrelevant. To illustrate, both parties agree that as a Fire Crew Leader, travelling is an inherent part of the present grievor’s job. Yet, if the employer had simply paid for an air-ticket on Air Canada for the grievor to fly from Sudbury to British Columbia to be dispatched from there to a fire site, would the time spent on the flight constitute “work”? During his submissions, union counsel quite correctly contrasted this specific example as a situation where overtime would not be payable. The reason why such time would not constitute “work”, (despite the fact that travel was an inherent part of the grievor’s job) is because it may be assumed that while travelling on an Air Canada plane the grievor would be essentially responsibility free (unless of course there is specific evidence to the contrary). He would not be entitled to be paid as if he was working while on the flight, but would be entitled to be compensated at straight time under article 14.6. As noted earlier, the parties have turned their minds to the distinction between work and travel time, and agreed upon the appropriate levels of compensation in the two situations. That distinction must be given effect to.

To be clear, it is my finding that where an employee travels for the employer under circumstances where he has actual job responsibilities during the journey, he would be “working”, even though travel is not part of his regular job duties. To illustrate, assume that X is an office clerk working out of Toronto, whose regular duties do not involve travelling. However, due to some urgent need, the employer assigns him on his regular day off to drive in a ministry vehicle to Kingston, Ontario, taking with him a document for review and approval by a senior manager in Kingston. X is then to return the document back to his Toronto workplace. Does the fact that travel was not an inherent part of X’s regular job duties mean that he was not “working” while travelling to and back from Kingston? I would think not. Throughout the journey X would have had responsibility for the care and custody of the document. He would also be driving a ministry vehicle and responsible for its safety and security. Since he was carrying out actual work responsibilities during the journey, he would be “working”, and entitled to be compensated on that basis.

I agree with the submission of union counsel that the mode of travel or distance traveled is immaterial. I agree that the collective agreement does not give rise to distinctions on that basis. As long as an employee is carrying out actual job responsibilities while travelling, he would be deemed to be working, regardless of whether he/she was travelling by public carrier, chartered carrier, employer owned/rented vehicle or his personal vehicle, and regardless of the distance travelled. The test always is, is the employee carrying out actual job responsibilities during the journey? Again I resort to a hypothetical illustration. Two Correctional Officers are assigned to escort an inmate from Toronto to British Columbia. They travel by air and the employer pays for their Air Canada fare. While on the flight to B.C. the officers are responsible for the care and custody of the inmate, and are required to ensure his safety, security and comfort, which includes conducting searches and the use of restraining devices such as hand-cuffs and shackles as per policy. In my view, it would be difficult to argue that the employees are not working during the flight merely because they were on a commercial flight, when it is clear that they were carrying out actual job responsibilities while on the flight. On the other hand, if the two officers had no responsibilities on the return trip, having handed over the inmate, their return flight on Air Canada would only attract travel time. In this illustration also the determining test must be whether or not the employees were essentially responsibility free.

Having concluded that the appropriate test, and the sole test, is whether or not the employee had responsibilities while travelling, the next issue is to determine the nature of the responsibilities that would turn time spent travelling into “work”. In this regard, each case will obviously turn on its own particular facts. However, certain principles may be gleaned from the Board’s jurisprudence. Thus the Board has not considered the fact that an employee was in uniform while travelling; the fact that the employee had some employer issued supplies while travelling; or the fact that the employee was subject to the general responsibilities inherent in his position; to be sufficient to turn time spent on travel into “work”. See Re Marcotte (supra). Nor has the Board considered a minimal responsibility to be sufficient. In Re Buchanan (supra), the Board did not consider the evidence that the grievor had done an initial checkout of the vehicle which took a minimal amount of time to be significant, in the absence of evidence that the grievor had continuing responsibility during the trip. At p. 7, Vice-Chair Kennedy observed:

In addition, we did receive some oral testimony, but in our view that evidence did not alter the underlying fact that the grievor was essentially responsibility free in the sense of his normal job duties during the initial period of the trip. There are certain inherent duties and obligations on any employee, and particularly one in uniform, that are inherent with the position at all times and we cannot see that these were any different during the travelling period than at any other time.

The case law suggests that the Board will consider travel time to be work time only where the employee has real, as opposed to notional, job responsibilities while travelling. Thus the fact that the grievor in this case was in uniform and was subject to employer policies and legislation while travelling is not a sufficient basis to find that he was working. Those are responsibilities inherent at all times in the position the grievor held. In the absence of some specific and real responsibility to act pursuant to such policies or legislation while travelling, that is not a sufficient basis for concluding that the grievor was working while travelling.

I turn next to the union’s submission based on the fact that the grievor had with him hand-held radio equipment, radio batteries, a satellite telephone, a GPS unit and an Initial Attack Incident Commander Kit. Again I conclude that the fact that these tools of trade accompanied the grievor on the trip is not sufficient to make the time spent on the trip work time, in the absence of evidence that there was an expectation that the grievor would use any of it during the trip or that he had some real responsibility with regard to those. The evidence is clear that such was not the case. Paragraph 37 of the agreed statement of facts states that “there was no expectation or direction given to the grievor that he was to hold onto any of the equipment or to keep it in his personal possession during the course of the travel to British Columbia”. Paragraph 40 states that “None of the equipment in this circumstances was brought into the passenger area of the plane and was instead stored with baggage in the cargo area for the duration of the flight”. The evidence does indicate that the employees, including the grievor, carried their bags from the Sudbury Fire Centre to the apron and carried their bags from the airplane upon arrival in British Columbia (paragraph 39). However, that minimal activity is not sufficient, in the absence of evidence that the grievor had some continuing responsibility while traveling.

The fact that an employee was in possession of the usual tools of the trade associated with his/her job has not been considered to be sufficient to convert time spent travelling into “work time”. Thus in Re Gabriel (supra), the grievor was a Tax Auditor. At p. 4 the Board concluded as follows:

. . . the possession of a lap-top computer, files and briefcase during travel time outside of regular working hours does not create the level of responsibility which would constitute a continuing responsibility to care for Ministry property or personnel in the parameters set by the current Grievance Settlement Board jurisprudence. Therefore, the time spent in travel outside working hours must be treated as travel time, not work time, and Article 23 applies.

Similarly, in Re Professional Engineers and Architects of the Ontario Public Service (supra) at p. 27, the Board wrote:

Specifically I agree that “travelling outside of normal hours is not “work”, unless during the travel the employee has some responsibility towards the Employer. Indeed, I would go further and say that the responsibility towards the Employer has to be something more than being in possession of certain nominal “tools of the trade”.

At p. 28 the Board states:

The Employer asserted that the fact engineers carried various pieces of equipment with them or travelled with other employees is sufficient reason for the grievances to fail. I think not. It is true that the grievors have some equipment with them in their cars like safety boots, hard hats or perhaps laptop computers. However, tape measures and paper documents in the trunk of either a Ministry vehicle or a personal vehicle cannot magically change travel into work. The carrying of implements is not a determinative criteria for these grievances.

I conclude that the minimal responsibilities the grievor had with respect to the equipment while travelling in the particular circumstances is not the kind of responsibility which would turn time spent travelling into work time.

Finally, I turn to consider the significance of the fact that the grievor had been designated as Crew Leader for the twenty-person crew travelling to British Columbia. In this regard it is notable that the parties have agreed that the grievor “was not expected to perform any specific duties in this role until the assignment to a specific fire in Creston, British Columbia” (Paragraph 19 of the Agreed Facts). I find in those circumstances that the grievor’s designation as Crew Leader by itself makes no difference. For time spent travelling to be considered “work” there must have been an expectation that the grievor, whatever his designation may be, would carry out actual supervisory or leadership duties during the journey. This clearly was not the case here. This principle is borne out in Re Professional Engineers of the Ontario Public Service (supra) where the Board stated at p. 28:

I am of the view that if an engineer travels with someone they supervise then the journey is work, not travel. However, the engineer would have to have actual supervisory responsibility for the passenger, not merely a co-worker they assign usual tasks at the worksite.

(emphasis added)

Conclusion

It follows from all of the above, that the grievor was essentially responsibility-free during the periods of travel in question. For reasons I have set out, in the absence of actual responsibilities during travel, time spent on travel is not to be considered work time. The flip side is that where an employee is expected to discharge actual responsibilities while travelling, time spent on that travelling would constitute work, regardless of the mode of travel, the distance travelled or whether the travel was undertaken within or outside a particular administrative or geographical area. The collective agreement does not support or justify distinctions on any of those grounds. If the parties mutually feel that the rules should be changed to make them fairer and more rational in relation to particular types of travel, they may so agree. However, in the absence of such agreement the collective agreement applies to the whole bargaining unit.

Under the collective agreement, where an employee attends a briefing before, during or following travel, that period will always be considered to be work because the employee would be engaged in the employer’s business. Similarly, where an employee such as the grievor is dispatched to a particular fire location, travel to the location of that work would always constitute work, because such travel would be a part of his job assignment itself. However, where travel is not pursuant to a particular work assignment, the time spent on travelling will be considered to be “work”, only where the employee had actual work responsibilities during such travel. In the grievor’s circumstances, he had no such responsibilities, and the grievance fails for that reason.

By paying the grievor travel time under article 14.6 for the time in question, the employer did not contravene the collective agreement. Accordingly the grievance is hereby dismissed.

Dated this 17^th day of March, 2008 at Toronto, Ontario.