GSB#2014-2891
UNION#2014-0603-0006
Additional Files attached in Appendix A
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Breton et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Lori Davis Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Laural Rueffer Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor
HEARING
May 10, 2016
Decision
1The Board is seized with grievances by a number of individuals. The list of grievances is attached hereto as appendix A.
2The grievances were dealt with under the mediation/arbitration provisions in article 22.16 of the collective agreement.
3The employer advised the Board that in its view, all but a few of the grievances were referred to arbitration outside the time limits in the collective agreement. However the employer waived that objection and opted to address the grievances on their merits.
4The thrust of the grievances is to the effect that the employer contravened the collective agreement by paying them travel pay at straight time under article 14.6 for time they spent waiting at the airport, to be deployed to a wildfire. The grievors took the position that they should have received overtime pay instead. Since the day in question was a statutory holiday, they claim overtime pay at two times the regular wage rate for the time in question.
5The facts material to the grievances were presented without the need for viva voce evidence.
6In Re Daye, 2006-2348 (Dissanayake), the Board undertook a review of its past decisions on the issue of whether travel time or overtime was payable for time spent travelling. At p. 17-18, the Board concluded as follows:
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.
At p. 21 the Board stated further 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”.
7Applying the foregoing principles, the Board concludes that the grievors were not engaged in work during the time in question (except for the time spent at a briefing, for which they were paid at overtime rates).
8Therefore, there has been no contravention of the collective agreement, and all of the grievances are hereby dismissed.
Dated at Toronto, Ontario this16th day of May 2016
APPENDIX A
GSB Number OPSEU File Number Grievor
2014-2892 2014-0603-0007 Bourcher, Joel
2014-4545 2014-0611-0063 White, Paul
2014-4546 2014-0611-0064 Bojko, Jeffrey
2014-4547 2014-0611-0065 Fell, Michael
2015-0733 2014-0356-0003 Barry, Julian et al
2015-0734 2014-0356-0004 Clouthier, Connor
2015-0735 2014-0356-0005 Cyr, Curtis
2015-0736 2014-0356-0006 Ford, Braden
2015-0737 2014-0356-0007 Heffernan, Jeanette
2015-0738 2014-0356-0008 Hodges, Trevor
2015-0739 2014-0356-0009 Lauer, David
2015-0740 2014-0356-0010 Mask, Safron
2015-0741 2014-0356-0011 McLean, Edward
2015-0742 2014-0356-0012 Moraal, Steven
2015-0743 2014-0356-0013 Stevens, Paul
2015-0744 2014-0356-0014 Zwep, Randy
2015-0745 2014-0652-0002 Brunette, Patrick et al
2015-0746 2014-0652-0003 Demers, Joey
2015-0747 2014-0652-0004 Kane, Matthew
2015-0748 2014-0652-0005 Petersen, Lisa
2015-0749 2014-0652-0006 Rockingham, James
2015-0751 2014-0704-0007 Kirkpatrick, Thomas
2015-0752 2014-0704-0008 O'Brien, Kyle
2015-0753 2014-0704-0009 O'Quinn, Bradley