FPSLREB Decisions

I. Policy grievance referred to adjudication

1 On March 12, 2009, the Professional Institute of the Public Service of Canada (“the bargaining agent”) filed a policy grievance against the interpretation of certain travel time provisions of a collective agreement by the Treasury Board (“the employer”). The applicable collective agreement is between the employer and the bargaining agent for the Applied Science and Patent Examination (SP) group (expiry date: September 30, 2007; “the collective agreement”).

2 This grievance is about the employer’s interpretation of clause 13.01(c) of the collective agreement. Under its interpretation, employees travelling beyond North America are paid for travel time on a day of rest or on a designated paid holiday up to a maximum of 15 hours of overtime for the entire trip. The bargaining agent claimed that the 15-hour maximum applies to each day of rest or designated paid holiday and not, as the employer maintained, to the entire trip.

3 The grievance refers only to clause 13.01(c) of the collective agreement. However, I have reproduced the other provisions of clause 13.01 so that clause 13.01(c) may be placed in context:

ARTICLE 13

TRAVELLING TIME

13.01 When the Employer requires an employee to travel outside the employee’s headquarters area for the purpose of performing duties, the employee shall be compensated in the following manner:

(a) on a normal working day on which the employee travels but does not work, the employee shall receive the employee’s regular pay for the day;

(b) on a normal working day on which the employee travels and works, the employee shall be paid:

(i) the employee’s regular pay for the day for a combined period of travel and work not exceeding seven and one-half (71⁄2) hours,

and

(ii) at the applicable overtime rate for additional travel time in excess of a seven and one-half (71⁄2) hour period of work and travel, with a maximum payment for such additional travel time not to exceed twelve (12) hours pay at the straight-time rate in any day or fifteen (15) hours pay at the straight-time rate when travelling beyond North America,

(c) on a day of rest or on a designated paid holiday, the employee shall be paid at the applicable overtime rate for hours travelled to a maximum of twelve (12) hours pay at the straight-time rate, or fifteen (15) hours pay at the straight-time rate when travelling beyond North America.

4 Even though the grievance’s wording refers only to the 15 hours of pay for travel beyond North America, the parties agreed that the grievance also includes the 12 hours of pay for travel within North America. The parties also agreed that it is a policy grievance because it affects the bargaining unit in general, within the meaning of subsection 220(1) of the Public Service Labour Relations Act.

II. Summary of the evidence

A. For the bargaining agent

5 The employer’s interpretation contravenes clause 13.01(c) of the collective agreement, which must be interpreted as a whole. Each word must be given its ordinary meaning. The definitions “day of rest” and “designated paid holiday” in article 2 apply. In addition, clause 8.01 clarifies the meaning of “day.” Reviewing those specific provisions, article 13 and the collective agreement as a whole demonstrates that the employer misinterpreted clause 13.01(c).

6 The bargaining agent has never requested any amendment to clause 13.01(c) of the collective agreement because it has never been made aware of any issue with interpreting that clause.

7 The employer may not unilaterally limit employees’ pay to 15 hours per trip for travel beyond North America unless that restriction is clearly set out in the collective agreement, which is not so in this case. Clause 13.01(c) in no way states that the 15-hour limit applies to the entire trip. Had the parties desired such a limit, they would have added it to the collective agreement. In the absence of such a provision, the 15-hour maximum applies to each day and not to each trip.

8 The other clauses of the collective agreement referred to by the bargaining agent read as follows:

…

2.01 For the purpose of this Agreement:

…

“day of rest” in relation to an employee means a day, other than a designated paid holiday, on which that employee is not ordinarily required to perform duties other than by reason of the employee being on leave (« jour de repos »);

“designated paid holiday” means the twenty-four (24) hour period commencing at 00:01 hour of a day designated as a holiday in this Agreement (« jour férié désigné payé »);

…

“leave” means authorized absence from duty (« congé »);

…

“overtime” means work required by the Employer, to be performed by the employee in excess of the employee’s daily hours of work (« heures supplémentaires »);

…

8.01 For the purpose of this Article, a week shall consist of seven (7) consecutive days beginning at 00:01 hours Monday and ending at 24:00 hours Sunday. The day is a twenty-four (24) hour period commencing at 00:01 hours.

…

B. For the employer

9 The employer claimed that its interpretation of clause 13.01(c) of the collective agreement is correct and that it conforms with the parties’ actual intention, which was to limit the number of hours paid for employee travel.

10 According to the employer, the adjudicator must establish the intention of the parties that signed the collective agreement. The adjudicator’s jurisdiction is limited to interpreting the wording of the collective agreement, and the adjudicator may not change provisions that are clear and unambiguous. To interpret the collective agreement, the adjudicator must rely on several rules of interpretation, as follows: the parties’ words must be given their ordinary meanings; the words must be interpreted in the context of the entire agreement; each word or absence of a word in a clause must be given a distinct meaning; different terms must be assigned different meanings; a clear intention is required to grant a monetary benefit; if a mandatory clause conflicts with a definition, the mandatory clause is to be preferred; and, it may be useful to study the French and English texts.

11 The collective agreement provisions are clear and unambiguous. Clause 13.01(c) provides for no more than 12 or 15 hours of pay for travel time, regardless of the number of days travelled. It is obvious that the parties did not want the term “work” to include the term “travel.” To the parties, travel is travel, and work is work. That distinction in a general sense prevents paying overtime for travel time.

12 Clause 13.01(b)(ii) of the collective agreement states that, for normal working days on which employees travel and work, the maximum pay is calculated per day of travel, because of the phrase “in any day.” However, the phrase “in any day” is absent from clause 13.01(c). The presence of that phrase in one clause and its absence from other clauses must mean something. The employer argued that it indicates that the parties wanted to apply a set calculation, regardless of the number of days travelled, to cases in which employees travel but do not work.

13 The employer referred me to Aerlinte Eireann Teoranta v. Canada (1990), 68 D.L.R. (4th) 220 (C.A.); Arsenault et al. v. Parks Canada Agency, 2008 PSLRB 17; Lamothe c. Canada (Procureur général), 2009 CAF 2; Canadian Postmasters and Assistants Association v. Canada Post Corporation, [1999] C.L.A.D. No. 108 (QL); Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112; Hunt v. Treasury Board (Fisheries and Oceans), PSSRB File No. 166-02-15797 (19860904); Maple Leaf Fresh Foods Brandon v. United Food and Commercial Workers, Local 832 (2010), 196 L.A.C. (4th) 336; Martin v. Treasury Board (Transport Canada), PSSRB File No. 166-02-25920 (19950310); Ottawa (City) v. Canadian Union of Public Employees, Local 503, [2010] O.L.A.A. No. 65 (QL); Parmalat Dairy and Bakery Inc. v. Retail Wholesale Canada, CAW Division, Local 462, [2010] O.L.A.A. No. 165 (QL); Small v. Treasury Board (Agriculture Canada), PSSRB File No. 166-02-17579 (19890215); Stevens et al. v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSLRB 34; Tamborriello v. Treasury Board (Department of Transport), 2006 PSLRB 48; Tembec Industries Inc. v. Pulp, Paper and Woodworkers of Canada, Local 15, [2010] B.C.C.A.A.A. No. 168 (QL); White v. Treasury Board (Solicitor General - Correctional Service), 2003 PSLRB 40; and White v. Canada (Treasury Board), 2004 FC 1017. The employer also referred me to the following: The Dictionary of Canadian Law, 2nd ed.; Canadian Labour Arbitration, 4th ed.; and Collective Agreement Arbitration in Canada, 4th ed.

III. Reasons

14 The issue is relatively simple. Did the employer violate the collective agreement by paying a maximum of 12l or 15 hours of overtime pay per trip to employees who travelled on a day of rest or on a designated paid holiday, regardless of the number of days travelled? The bargaining agent claimed that the employer violated the collective agreement because the 12 or 15 hours in question are to be paid per day of travel. According to the employer, those hours are to be paid per trip and not per day.

15 Clause 13.01 of the collective agreement begins by stating that, when the employer requires an employee to travel, the employee is paid for the travel time. The remainder of the clause sets out the terms and conditions of the compensation. If the employee travels on a normal working day but does not work, he or she is paid according to clause 13.01(a); if he or she travels and works on a normal working day, he or she is paid according to clause 13.01(b). If the employee travels on a day of rest or on a designated paid holiday, he or she is compensated according to clause 13.01(c). The 12- and 15-hour maximums at the straight-time rate apply, in specific cases, under clauses 13.01(b) and (c).

16 Under clause 13.01(b) of the collective agreement, employees are paid regular pay for 7.5 hours of work. Additionally, they are paid overtime for travel of up to 12 hours at the straight-time rate for a given day (15 hours for trips beyond North America). However, according to the employer, employees should be paid for travel time on a day of rest or on a designated paid holiday for up to 12 or 15 hours at the straight-time rate, in specific cases and not for any given day, but for the entire trip.

17 According to the employer’s interpretation, the applicable maximums would therefore be greater on a normal working day than on a day of rest or on a designated paid holiday. In other words, for the same trips with the same travel times, employees would be paid more on a normal working day than on a day of rest or on a designated paid holiday. That interpretation is contrary to the logic behind the rates of pay set out in the collective agreement for normal working days, days of rest and designated paid holidays.

18 Article 9 of the collective agreement provides for a premium to be added to pay for work performed on a day of rest or on a designated paid holiday. It compensates employees for the inconvenience of having to work those days. For example, employees are paid a 50% premium for the first 7.5 hours worked on the first day of rest or a 100% premium if those hours are worked on the second day of rest. The premium is 150% for work on a designated paid holiday. However, the employer’s interpretation of clause 13.01(c) implies the exact opposite — that the compensation for travel time could be less for an employee travelling on a day of rest or on a designated paid holiday than for one travelling on a normal working day.

19 The employer rightfully pointed out that each word or absence of a word in a clause must be given a distinct meaning and that different terms must be assigned different meanings. Clause 13.01(b)(ii) of the collective agreement refers to “any day” when it specifies that the 12 or 15 hours of additional compensation are to be paid each day. The expression “any day” does not appear in clause 13.01(c). Were it not for the illogical outcome described in the last paragraph, it might be possible, as did the employer, to conclude that the 12 or 15 hours of compensation are paid for an entire trip, regardless of the number of days travelled.

20 It is possible that the parties decided to insert the words, “in any day” to clarify the rather lengthy wording of clause 13.01(b)(ii) of the collective agreement but then decided that that clarification was unnecessary in clause 13.01(c). In that case, the words “in any day” would not have been used to introduce a concept different from that of “a day,” meaning a 24-hour period, a “day of rest,” meaning a day other than a designated paid holiday on which an employee does not work, or a “designated paid holiday,” meaning a 24-hour period starting at 00:01 on the day designated as a holiday in the collective agreement. Throughout the collective agreement, the word “day” means a 24-hour period, and “given” appears only in clause 13.01(b)(ii). From that, I conclude that the word “given” need not appear in the wording of clause 13.01(c) to conclude that the 12 or 15 hours of compensation are payable for each day of the trip.

21 My interpretation of clauses 13.01(b) and (c) of the collective agreement is that employees are entitled to receive the same pay for travel time during off hours, regardless of whether the travel falls on a working day, day of rest or designated paid holiday. The employer’s interpretation suggests that employees might be paid less for travel on a day of rest or on a designated paid holiday than on a normal working day. That makes no sense and contradicts the compensation logic of the rest of the collective agreement.

22 Hunt and Small consider compensation for travel time. In Hunt, the adjudicator found that compensation for travel time differs from compensation for work and that the two terms have unique meanings. That is not an issue in this case, since the parties acknowledged that travel time is compensated according to article 13 of the collective agreement. In Small, the grievance was about overtime pay for travel time. However, the matter for the adjudicator in that case to decide was not the same as in this case.

23 For all of the above reasons, I make the following order:

IV. Order

24 The grievance is allowed.

25 I declare that the employer violated the collective agreement by applying the 12- and 15-hour overtime pay maximums in clause 13.01(c) to the entire trip instead of applying to each day of rest or each designated paid holiday.

26 I order the employer to interpret clause 13.01(c) of the collective agreement in accordance with this decision.

June 17, 2011.

PSLRB Translation

Renaud Paquet,
adjudicator