Pursuant to the Canada Labour Code
CANADIAN NATIONAL RAILWAY COMPANY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, COUNCIL NO. 11 OF THE CANADIAN SIGNALS AND COMMUNICATIONS NETWORK
ARBITRATOR: Michel G. Picher
FOR THE COMPANY:
D. S. Fisher - Senior Director, Labour Relations
S. Grou - Senior Manager, Labour Relations
J.M. Greene - S&C Manager
A. de Montigny - Consultant
FOR THE UNION:
S. Beauchamp - Union Counsel
L. Couture - International Representative, IBEW
D. Mitchell - Local Union Officer
S. Hethrington - Representative, Local 2054 IBEW
Heard in Montreal, September 18, 2012.
AWARD OF THE ARBITRATOR
On behalf of the grievors, the Union claims payment for travel time between their accommodations and the work site, at time-and-a-half. Furthermore, it contests the Company’s decision to impose a limit of thirty (30) minutes for each compensated trip. The dispute and statement of issue filed by the Union reads as follows:
Claim for payment at time-and-a-half in violation of articles 6 and 7 of collective agreement 11.1.
Statement of issue
1. The Union argues that employees should have been compensated at time-and-a-half for the travel time between their accommodations and the work site, effective January 1, 2009, pursuant to articles 6 and 7 of collective agreement 11.1.
2. The Union also contests the imposition of a maximum travel time, set at thirty (30) minutes per trip by the Company in violation of the collective agreement.
3. The Union further argues that, given the nature of the claim and the fact that the Company’s position is contrary to the public order provisions of the Canada Labour Code, the scope of this grievance concerns all affected employees included in the bargaining unit.
4. The Company dismisses the Union’s claims.
It does not seem to be contested that prior to the fall of 2009 employees assigned to projects far from their home and put up at a hotel or motel were compensated each day from the time of their departure from their accommodations, at 7:00 a.m. until their return to the hotel or motel at 6:00 p.m. Moreover, the work day was calculated between the departure and the point of return. The travel time was therefore compensated as being part of the work day.
In 2009, a Company directive changed the practice. From then on, employees would be obliged to be at work, on the work site, from 7:00 a.m. to 6:00 p.m. The Company however decided to compensate employees at straight time for their travel time, up to a maximum of thirty minutes in the morning and thirty minutes at night. It argues that this compensation results from article 8.1 (a) of the collective agreement, which reads:
(a) Except as otherwise provided, employees detained for conveyance and while travelling on orders of the Company to and from work outside of their regular assigned territory or headquarters, after regular working hours, will be paid straight time. This does not apply to employees compensated on the basis of a stand-by allowance covered by Article 4 or to employees travelling in regular boarding cars or when sleeping accommodation is furnished by the Company.
The Union argues that provided that forty hours of work is performed on the work site, then travel time, which exceeds the forty hours, must be compensated as overtime at the rate of 1.5 times the regular salary, pursuant to article 174 of the Canada Labour Code. Furthermore, it maintains that the thirty-minute limit imposed by the Company is unreasonable and is contrary to the letter and spirit of the collective agreement.
The Company representatives argue that in principle employees are not entitled to payment for travel. They emphasize that the grievor employees have no headquarter in the sense of an assigned territory or home terminal within the meaning of paragraph 8.1(a) of the collective agreement and that, strictly speaking, these provisions do not apply to them, even if the Company has applied them at no obligation. At any rate, according to the employer’s representatives, there is no reason to compensate travel time at an overtime rate.
I consider the arguments of both parties to have flaws. First of all, arbitrators have long distinguished between daily commuting and compensated work. There is a well-recognized difference between the travel an employee must undertake pursuant to his employer’s orders, as an integral part of his duties, and the daily commute between his residence and his place of work.
Distinguished arbitrator George Adams recognized this distinction in a grievance that involved this very employer in C.N.R. and Telecommunications Union. (1978), 17 L.A.C. (2d) 142. He says the following on page 147:
We start with the proposition that the term “work” includes time spent by an employee in travel to a distant location for the purpose of carrying out his or her particular function. While, generally speaking, an employee is not “at work” until he actually arrives at his office, plant or job site, we accept that time spent travelling to an unusual and distant location at the employer’s request falls within the ordinary and accepted meaning of the term “work”. This view was well put in Wiberg v. Treasury Board (Ministry of Transport) where, at pp 405, the adjudicator wrote:
Generally speaking, when an employee travels to his work each day, he is not “at work” until he actually arrives at his office or plant or job site. If his residence is at some distant location, that is his own affair. Once he does arrive at the office, however, he is said to be at work even though he may not actually be performing the particular tasks appropriate to his classification. He may simply be sitting at his desk waiting for an assignment, and yet he is indeed “at work” and entitled to be paid. Likewise where, in the course of the day, he travels from one location to another for the purpose of performing his job, he is “at work” throughout that time. In the instant case, the essence of the employer’s case is that the grievor did not begin work on December 2 until he arrived in Collingwood at 07:30 AM a.m. that morning. The underlying assumption is that his getting to work at Collingwood that day was the grievor’s own business, just as his getting to work in Toronto on any other day was his own business. Luckily for the grievor he was not asked to report in Vancouver or Halifax that day!
Merely to state this assumption is surely sufficient. It is obviously false. When the grievor drove to Collingwood in the early hours of December 2, and returned that evening, he was not just driving to and from work in the usual sense, he was travelling on the employer’s business, at the employer’s particular request, at some inconvenience to himself and on an assignment for which special permission had to be obtained.
Arbitrator Maureen Saltman concurs in the decision Re: London and District Association for the Mentally Retarded and Ontario Public Service Employees Union, (1984) 16 L.A.C (3d) 165 on page 167:
Travel time may or may not be considered to be “work” depending on the circumstances in which it occurs. For instance, travel between an employee’s place of residence and assigned place of work is generally not considered to be “work”. This may be distinguished from travel for the purposes of carrying out an assignment, which may include attendance at a conference, which is commonly regarded as “work” see Re C.U.P.E., Local 767 and Ontario Housing Corp., Grievance Settlement Board file No. 159/77 (Adams (unreported)).
This jurisprudence seems applicable to me, as article 174 of the Canada Labour Code clearly stipulates that overtime is related to work.
For the Union’s position to be accepted, the travel time in question would have to be work hours performed by employees, within the meaning of article 174 of the Canada Labour Code. But they are not. They are simply the daily commute between the accommodations or the temporary residence of employees and their place of work, which do not constitute hours worked at the request of their employer within the meaning of the Canada Labour Code.
What’s more, in my opinion the Union cannot rely on the wording of paragraph 8.1(a) of the collective agreement. The travel envisaged by the provisions of this article is in no way the regular shuttling between the home and work. On the contrary, it is clearly long-distance trips “at the Company’s request,” which must be compensated at the regular rate of pay. In other words, it is big trips recognized as being work at the employer’s request, as acknowledged in the decisions noted above, and in the wording of paragraph 8.1(a).
But these observations cannot lead to the conclusion that employees are not entitled to any compensation for their regular travel. Although this conclusion could stem from the strict application of the collective agreement, it remains that since 2009 the Company has in fact applied paragraph 8.1(a) of the collective agreement so as to create expectations among employees, and their union, that their daily commute to the site merits payment of sixty (60) minutes per day, at the regular rate of pay. In my opinion, at the very least, there is reason to apply the principle of estoppel, at least until the current collective agreement expires. At that time the parties will be able to negotiate what they want, or what they are able, with regard to the application of this article.
Regarding the thirty-minute limit imposed by the Company, I deem this condition reasonable. It does not seem to be contested that it was implemented to discourage employees who were looking for less-expensive accommodations at a greater distance from the work site to further enhance their income. Insofar as the Company’s policy seems to permit exceptions when it is clear that employees have no other practical choice, I do not see anything abusive in the thirty-minute limit that is imposed.
For these reasons, the grievance must be dismissed, even if the Company respects its obligation to maintain the current practice of compensating employees at straight pay for their daily commute, until the collective agreement expires.
Dated this October 1, 2012 in the city of Ottawa
“Michel G. Picher”
MICHEL G. PICHER