FPSLREB Decisions

Heard at Halifax, Nova Scotia,
January 23 and November 4, 2014.

I. Individual grievance referred to adjudication

1 Robert Arsenault (“the grievor”) is employed by Treasury Board at the Department of National Defence (“the employer”) and at the material time was an electronic systems specialist in the Above Water Weapons section at the employer’s Fleet Maintenance Facility (“FMF”) at Cape Scott in Halifax, Nova Scotia.

2 On September 7, 2010, the grievor filed a grievance alleging that the employer had violated clauses 2.01(g), 15.01(b) and (c), and 17.03(d) of the collective agreement, dated June 16, 2008, between the Treasury Board and the Federal Government Dockyard Trades and Labour Council (East) for the Ship Repair (East) Group (“the collective agreement”). As relief, the grievor requested that he be fully compensated an additional six-and-one-half hours that he believes he is entitled to at the appropriate rate of pay, which is at the overtime rate of double time.

3 The employer denied the grievance at all levels of the grievance process. At the first and second levels of the grievance process, the employer maintained that the grievance was untimely. However, this position was not maintained at the final level of the grievance process; nor did the employer raise this as an objection at adjudication.

4 The parties agreed on most of the salient facts. One witness testified, on behalf of the employer — Ian Mitchell. One exhibit, G-1, was entered by the parties on consent, which consisted of the following documents:

1. a summary of the grievor’s travel, which included the hours travelled and under which pay code those hours were charged against for the Halifax to London portion of the travel (1 page);
2. the grievor’s travel reimbursement claim (6 pages);
3. the Public Works and Government Services Canada pay breakdown for the grievor’s Halifax to Stockholm travel (2 pages); and
4. the grievor’s pay stub for the payment issued to him for the Halifax to Stockholm travel (1 page).

5 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force, creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (P.C. 2014-1107). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2,a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before the day on which subsection 366(1) of the Economic Action Plan Act 2013, No. 2 comes into force is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 366 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

6 The grievor is one of a group of individuals who are skilled technicians and trades people who service various operational systems on-board Royal Canadian Navy ships. They are based at the FMF in Cape Scott in Halifax, Nova Scotia. Given the nature of their work, they are required by the employer to travel to where any given ship may be to carry out systems repairs.

7 In June of 2010, the grievor was required by his employer to travel from Halifax, Nova Scotia, to Stockholm, Sweden, to carry out repairs. On the evening of Saturday, June 5, 2010, the grievor left his home in the Halifax area and travelled to the Halifax International Airport, where he took a commercial flight to London, England. The flight departed Halifax at 11:35 p.m. ADT, travelled overnight and arrived in London at 9:35 a.m. GMT (5:35 a.m. ADT), the morning of Sunday, June 6, 2010. Upon his arrival in London, the grievor stayed at a hotel. On the morning of Monday, June 7, 2010, he departed London for Stockholm.

8 It is the portion of the trip from Halifax to London that gives rise to the grievance before me.

9 June 5, 2010, and June 6, 2010, were days of rest for the grievor.

10 The grievor was in transit for 3 hours and 30 minutes on June 5, 2010, and for 7 hours and 30 minutes on June 6, 2010, for a total of 11 hours. The flight time to London was 5 hours and 50 minutes, and the balance of the 11 hours of travel time was spent either travelling to or from the airports or waiting at the airports.

11 Clause 2.01(g) of the collective agreement (“clause 2.01(g)”) defines “day” as follows:

“day” means a twenty-four (24)-hour period:

1. commencing at 2345 hours and ending at 2345 hours the following day for employees subject to clause 15.02(a),
2. commencing at 0000 hours and ending at 2400 hours for employees subject to clause 15.02(b),

and

3. Commencing at 0015 hours and ending at 0015 hours the following day for employees subject to clause 15.02(c)

[Emphasis in the original]

12 Clause 2.01(h) of the collective agreement defines “double time” as two (2) times the straight-time rate of pay.

13 Clause 2.01(r) of the collective agreement defines “straight-time rate” as the hourly rate of pay.

14 Article 15 of the collective agreement deals with hours of work and overtime, and clause 15.01(a) of the collective agreement defines that the hours of work shall be forty (40) hours per week and eight (8) hours per day.

15 Clause 15.01(b) of the collective agreement (“clause 15.01(b)”) defines the workweek and a work day as follows:

1. From Sunday 2345 hours to Friday 2345 hours inclusive for employees subject to clause 15.02(a),
2. From Monday to Friday inclusive for employees subject to clause 15.02(b),

and

3. From Monday 0015 hours to Saturday 0015 hours inclusive for employees subject to clause 15.02(c)

16 Clause 15.02 of the collective agreement states that the hours of work shall be scheduled as follows:

1. The first (night) shift shall be from 2345 hours to 0815 hours with an unpaid meal period from 0345 hours to 0415 hours;
2. The second (day) shift shall be from 0745 hours to 1615 hours with an unpaid meal period from 1200 hours to 1230 hours;
3. The third (evening) shift shall be from 1545 hours to 0015 hours with an unpaid meal period from 1945 hours to 2015 hours.

17 Article 17 deals with travel.

18 Clause 17.02(c) of the collective agreement (“clause 17.02(c)”) states that when an employee travels through more than one (1) time zone, computation will be made as if he or she had remained in the time zone of the point of origin for continuous travel and in the time zone of each point of overnight stay after the first day of travel.

19 Clause 17.03 of the collective agreement (“clause 17.03”) deals with travel for an employee away from the employee’s normal place of work and states as follows:

17.03 Where an employee is required by the Employer to travel to a point away from the employee’s normal place of work, the employee shall be compensated as follows:

(a) on any day on which the employee travels but does not work, at the applicable straight-time or overtime rate for the hours travelled, but the total amount shall not exceed fifteen (15) hours’ straight time;

(b) on a normal workday in which the employee travels and works:

1. during the employee’s regular scheduled hours of work at the straight-time rate not exceeding eight (8) hours’ pay,
2. at the applicable overtime rate for all time worked outside the employee’s regular scheduled hours of work,
3. at the applicable overtime rate for all travel outside the employee’s regular scheduled hours of work to a maximum of fifteen (15) hours’ pay at straight time in any twenty-four (24)-hour period;

(c) on a rest day on which the employee travels and works, at the applicable overtime rate:

1. for travel time, in an amount not exceeding fifteen (15) hours’ straight-time pay,

and

2. for all time worked;

(d) notwithstanding the limitations stated in Article 17.03(a), (b) and (c), where an employee travels on duty, but does not work, for more than four (4) hours between 2200 hours and 0600 hours, and no sleeping accommodation is provided, the employee shall be compensated at the applicable overtime rate for a maximum of fifteen (15) hours’ straight-time pay.

20 The parties agreed that in the collective agreement that expired on December 31, 1999, those parts of the current clause 17.03 that state 15 hours, read 8 hours, and that in the collective agreement that was entered into in 2000, those parts of the current clause 17.03 that state 15 hours, read 12 hours.

21 The employer paid the grievor for the travel for the Halifax to London portion of his trip a total of 11 hours at double time (22 hours at the straight-time rate of pay).

22 Mr. Mitchell is currently the acting production manager at FMF Cape Scott. He has been in this position since July of 2014. Prior to that, and in 2010, Mr. Mitchell was the group manager 6 for the Above Water Weapons section. He is responsible for all management functions within the section, including responsibility for the delegations under the Financial Administration Act (R.S.C., 1985, c. F-11). The grievor reports indirectly to him.

23 The summary page of Exhibit G-1 shows that of the 11 total hours travelled by the grievor, 10 of those were charged against pay code 3716, which Mr. Mitchell identified is the pay code for travel at the overtime or double time rate of pay. The 1 remaining hour of travel was charged against pay code 3756, which Mr. Mitchell identified is the pay code for no rest under clause 17.03(d) of the collective agreement.

24 In cross-examination, Mr. Mitchell was brought to the summary page of Exhibit G-1 and asked why the grievor’s pay for June 6, 2010, was calculated using two separate pay codes. Mr. Mitchell could not recall why there was an apportionment between the two codes and why the specific amount of the apportionment was used.

III. Summary of the arguments

A. For the grievor

25 The Halifax to London portion of the grievor’s trip to Stockholm involved 11 hours of total travel; 3 hours and 30 minutes of that took place on Saturday, June 5, 2010, and a further 7 hours and 30 minutes took place on Sunday, June 6, 2010. The grievor was on designated rest days and was not scheduled to work; nor did he work. On those days, his travel was covered by clause 17.03(a) of the collective agreement, which states that on any day on which the employee travels but does not work, the employee shall be compensated at the applicable straight-time or overtime rate for the hours travelled, but the total amount shall not exceed fifteen (15) hours’ straight time.

26 The grievor travelled by commercial airline overnight between 2200 hours and 0600 hours, for in excess of four hours, and no accommodation was provided to him; as such, the grievor’s travel invokes clause 17.03(d).

27 What the employer did was pay the grievor 7 hours at straight time for his 3 hours and 30 minutes of travel on June 5, 2010, and 15 hours at straight time for his 7 hours and 30 minutes of travel on June 6, 2010. This covers the full 22 hours of the actual travel. What the employer did not do was pay the grievor under clause 17.03(d). According to the grievor, this is a separate benefit for travel when an employee travels between 2200 hours and 0600 hours and no sleeping accommodations are provided. It is for inconvenience and upset; it is a premium of a further 15 hours of straight time on top of or “notwithstanding” the amounts paid under clause 17.03(a), (b) or (c), as the case may be.

28 The grievor stated that to fully understand what is meant by clause 17.03(d), one has to understand the meaning of a number of key words. The first of these is “notwithstanding,” which is defined by Black’s Law Dictionary as, “in spite of.” The terms that “notwithstanding” is meant to modify are those that are found immediately preceding it at clauses 17.03(a), (b) and (c). In the grievor’s case, it would specifically modify clause 17.03(a). The limitation set out in clause 17.03(a) is the 15 hours of straight time that an employee shall be compensated for travel on any day he or she travels but does not work.

29 Clause 17.03(a) also uses the words “… the total amount shall not exceed … .” This means that in spite of the number of hours you may actually spend travelling on any given day (“day” being defined in clause 2.01(g)), you shall be paid a maximum of 15 hours at the straight-time rate. In the case of the grievor, hypothetically, if he had travelled for 8 hours on a Saturday in which he did not work, he would not get 8 hours of pay at the double-time rate but only the equivalent of 7.5 hours at the double-time rate as that is the equivalent of 15 hours at straight time, and that is the maximum agreed to in clause 17.03(a).

30  There are conditions set out at clause 17.03(d) that must be in existence before the extra benefit found at clause 17.03(d) is payable. First, the employee must be travelling between 2200 hours and 0600 hours. Second, the travel must be for more than 4 hours. Third, and finally, the employee must not have been provided an accommodation. If any of these conditions are not met, then the benefit is not payable under clause 17.03(d). However, if all of these conditions are met, than the benefit is payable.

31 The amount of the benefit is the full 15 hours of straight time. This is the price the employer has to pay for having an employee travel through the night overseas with no accommodation. The employer can choose to route the employee in another way such that the employee does not meet the three conditions of clause 17.03(d), and as such, it would not have to pay the benefit. Hypothetically, the grievor could have been routed through another airport such as Toronto, during regular daytime hours, and notwithstanding the number of hours travelled, only is required to pay the grievor a maximum of 15 hours at the straight-time rate.

32 The grievor referred me to Professional Institute of the Public Service of Canada v. Treasury Board,2011 PSLRB 80 (“PIPSC”), which dealt with the interpretation of a collective agreement clause that provided for employees’ pay while travelling beyond North America on a day of rest or designated paid holiday. The clause in question stated as follows:

…

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:

…

(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.

[Emphasis in the original]

33 In PIPSC,the employer was paying the employees up to the maximum of 12 hours or 15 hours per trip. The bargaining agent argued that this was incorrect and that the clause in question, when read in conjunction with the other clauses, provided for the payment of up to 12 or 15 hours of pay for travel per day.

34 In PIPSC, the adjudicator agreed with the bargaining agent’s position and gave the words as set out in the clauses of the collective agreement their distinct meaning. The adjudicator stated at paragraph 19 of PIPSC as follows: “… 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.”

35 According to the employer, if you do not get to your maximum of 15 hours of straight time for travel on any given day, notwithstanding that you are travelling for more than four hours between 2200 hours and 0600 hours and no accommodation is provided, clause 17.03(d) has no meaning. The grievor submits the employer is reading out clause 17.03(d) from the collective agreement. This is an illogical outcome as it strips clause 17.03(d) of any meaning.

36 Clause 17.03(d) uses the words “… for a maximum of … (15) hours’ … ,” whereas in other parts of clause 17.03, the words used are “to a maximum.” There is a difference between these phrases; “for a maximum” is the most you can get.

37 The grievor states that this is not pyramiding.

38 The grievor requests that the employer be instructed to pay the grievor the amount due and owing under clause 17.03(d).

B. For the employer

39 The question to be decided is what clause 17.03(d) means. It is the position of the employer that to attribute to clause 17.03(d) the meaning advanced by the grievor would amount to stacking or pyramiding.

40 The employer referred me to page 125 of Collective Agreement Arbitration in Canada, Palmer and Palmer, Third Edition, where it states at paragraph 4.19 as follows:

…

In short, where a grievor seeks two benefits for the same work, the onus is upon that person to advance some valid reason why both should be paid. As has been stated:

“Pyramiding” is not a term of art with a precise meaning. Usually it means providing two or more money benefits respecting the same period. It is said by many arbitrators that there is a presumption against pyramiding and that clear evidence is required before payment of two benefits respecting the same time period will be allowed.

41 The employer also referred me to Canadian Labour Arbitration, Brown and Beatty, Third edition, at paragraph 8:2140, “Pyramiding,” wherein it states that there is a presumption against pyramiding but that this presumption can be rebutted. According to the employer, to rebut this presumption, the key factor would be determining the purpose of the clause. To assist in this regard, the employer referred me to Louisiana-Pacific Canada Limited (Golden) v. United Steelworkers, Local 1-405 (Dahlin Grievance),[2013] B.C.C.A.A.A. No. 53 (QL) (“Louisiana-Pacific Canada Limited”).

42 Paragraph 44 of Louisiana-Pacific Canada Limited provides that it is up to the arbitrator to find the mutual intention of the parties within the competing interpretations put forward by the parties. I was further directed to paragraph 54, wherein Arbitrator Bird in Pacific Press v. Graphic Communications International Union, Local 25-C,[1995] B.C.C.A.A.A. No. 637 (QL), is cited, setting out the canons of construction. I was referred to the first four of those canons as follows:

1. The object of interpretation is to discover the mutual intention of the parties.
2. The primary resource for an interpretation is the collective agreement.
3. Extrinsic evidence (evidence outside the official record of the agreement, being the written collective agreement itself) is only helpful when it reveals the mutual intention.
4. Extrinsic evidence may clarify but not contradict a collective agreement.

43 Paragraph 59 of Louisiana-Pacific Canada Limited referenced the following from Mitchnick and Etherington, Labour Arbitration in Canada, at pages 282-283:

It was suggested in some of the earliest awards that there exists an arbitral presumption against the pyramiding of benefits. In the frequently cited decision of Ault Milk Products Ltd. and R.W.D.S.U., Local 440 (1962), 12 L.A.C. 279 (Anderson), the board ruled at p. 282:

If a contract is open to two interpretations and one interpretation involves the pyramiding of overtime and the other interpretation does not involve pyramiding of overtime, the board of arbitration, in the absence of specific wording in the contract, should accept the interpretation which does not provide for the additional penalty payments by reason of pyramiding overtime.

…

In Headwaters Health Care Centre v. Ontario Nurses Assn., [2004] O.L.A.A. No. 332 (QL), Arbitrator Surdykowski provided a concise summary of the rule against pyramiding:

…

… it is clear that in its modern form, the “rule” against pyramiding exists as a rebuttable presumption that is itself subject to the terms of the particular collective agreement. The presumption is that the parties did not intend … that employees would receive more than one premium in addition to their regular wage rate for the same hours of work… .

…

44 Clause 17.03(d) is about travel; however, the grievor calls it a “lack of accommodation” clause. Every clause in the collective agreement must have a meaning. The employer’s interpretation does not deprive clause 17.03(d) of meaning. If an employee travels on a day of rest, like the grievor did, on a Saturday, and he or she leaves at 7:30 a.m., no matter how long he or she travels, he or she is only entitled to get a maximum of 15 hours of straight time. So, on a day of rest, an employee who does not work but travels for 8 hours would only get paid 15 hours of straight time instead of 16 hours. Since the travel is on a day of rest, all of the time travelled is paid at the overtime rate, which is double time. The maximum though under clause 17.03(a) would be 15 hours. If the employee travelled from 7:30 a.m. until 7:30 p.m., despite having travelled for 12 hours, the entitlement would still only be 15 hours and not 24 hours. Clause 17.03(d) would come into play when the travel extended into the nighttime, past 2200 hours. When this occurs, if the other conditions at clause 17.03(d) were met, namely, travel for 4 or more hours and no accommodation being provided, then additional time would be paid, above and beyond the maximum of 15 hours already reached.

45 The employer states that the phrase “notwithstanding the limitations,” found at the beginning of clause 17.03(d), refers to the maximum number of hours paid. There are no other limitations found in clause 17.03 that it can refer to other than the maximum number of hours.

46 While the employer agrees with the grievor’s submission that clause 17.03(d) is meant to provide something more, it is not in the nature of stacking or pyramiding but extending the number of hours to be remunerated to the employee by the employer. Clause 17.03(d) provides the employee with an additional benefit, if and when the maximum of 15 straight-time hours of pay for travel has been reached under the other provisions of clause 17.03 and when the three conditions in clause 17.03(d) have been met.

47 The employer submits that looking at the clause as it was drafted in its earlier incarnations, when the limitation for travel was not 15 hours but 8 hours or 12 hours, makes it much easier to understand.

48 What the grievor is asking for is two benefits for the same time period, which is stacking or pyramiding and should not be allowed, and the employer requests that the grievance be dismissed.

C. Grievor’s reply

49 The basic premise of the employer’s argument is the rule against pyramiding. Louisiana-Pacific Canada Limited explains pyramiding. The canons of construction referred to at paragraph 54, in addition to those cited by the employer, also include the following:

…

5. A very important promise is likely to be clearly and unequivocally expressed.
6. In construing two provisions a harmonious interpretation is preferred rather than one which places them in conflict.
7. All clauses and words in the collective agreement should be given meaning, if possible.
8. Where an agreement uses different words, one presumes that the parties intended different meanings.
9. Ordinary words in a collective agreement should be given their plain meaning.
10. Parties are presumed to know about relevant jurisprudence.

50 The key part of paragraph 59 of Louisiana-Pacific Canada Limited is that which states as follows:

… While most arbitrators may accept the legitimacy of some form of presumption against pyramiding of benefits, the force of such a presumption has in practice been considerably undermined by two developments. First, in the face of ongoing disagreement about what constitutes pyramiding, a tendency has developed to define it fairly narrowly, thus restricting the concept to situations in which two types of premiums or benefits intended to serve the same purpose are being claimed in respect of the same period of work. Second, most arbitrators have recognized that any presumption can be rebutted fairly easily, especially where the underlying purpose of the disputed payments is different… .

51 Clause 17.03(d) is clearly not for the same purpose as clause 17.03(a), (b) or (c). It is distinct in that its purpose is to address those situations in which an employee finds himself or herself travelling between 2200 hours and 0600 hours for a minimum of 4 hours and with no accommodation. The purpose of clause 17.03(d) is not to compensate the employee for their travel time but to compensate him or her for no overnight accommodation when travelling. As this is clear, it rebuts the presumption of pyramiding.

52 The grievor disagrees with the submission of the employer that the only limitations that are set out at clauses 17.03(a), (b) and (c) that clause 17.03(d) alters are the hours. There are other limitations, which deal with hours of work and work days and work on days of rest.

53 With respect to the employer’s argument that its position is easier understood by looking at the clause as it was drafted when the travel hours paid were capped at 8 hours or 12 hours, the grievor states this is irrelevant. Fifteen hours is what was negotiated and what is stated in the collective agreement. Nothing else can be read into that.

IV. Reasons

54 Simply put, the parties cannot agree on what is meant by clause 17.03(d). Clause 17.03 states as follows:

17.03 Where an employee is required by the Employer to travel to a point away from the employee’s normal place of work, the employee shall be compensated as follows:

(a) on any day on which the employee travels but does not work, at the applicable straight-time or overtime rate for the hours travelled, but the total amount shall not exceed fifteen (15) hours’ straight time;

(b) on a normal workday in which the employee travels and works:

(i) during the employee’s regular scheduled hours of work at the straight-time rate not exceeding eight (8) hours’ pay,

(ii) at the applicable overtime rate for all time worked outside the employee’s regular scheduled hours of work,

(iii) at the applicable overtime rate for all travel outside the employee’s regular scheduled hours of work to a maximum of fifteen (15) hours’ pay at straight time in any twenty-four (24)-hour period;

(c) on a rest day on which the employee travels and works, at the applicable overtime rate:

(i) for travel time, in an amount not exceeding fifteen (15) hours’ straight-time pay,

and

(ii) for all time worked;

(d) notwithstanding the limitations stated in Article 17.03(a), (b) and (c), where an employee travels on duty, but does not work, for more than four (4) hours between 2200 hours and 0600 hours, and no sleeping accommodation is provided, the employee shall be compensated at the applicable overtime rate for a maximum of fifteen (15) hours’ straight-time pay.

55 It was the position of both parties that clause 17.03(d) provides for additional compensation above and beyond what is set out in any of clauses 17.03(a), (b) or (c), as the case may be, and only becomes relevant when all three of the conditions set out in the clause are present — the travel being between 2200 hours and 0600 hours, the employee is travelling for more than 4 hours, and no accommodation is provided during that time frame.

56 According to the grievor, clause 17.03(d) is a stand-alone benefit, which, if the conditions contained therein are present, requires the employer to pay the employee the equivalent of 15 hours at straight time. The grievor refers to this as a loss-of-accommodation benefit. According to the employer, clause 17.03(d) is not a stand-alone benefit but is there to augment the compensation for the employee who travels overnight in circumstances where the compensation for their travel is otherwise limited by one or the other of clauses 17.03(a), (b) or (c). According to the employer, if the three conditions set out in clause 17.03(d) are present, and the employee who is travelling has already reached the compensation caps found one of clause 17.03(a), (b) or (c), then and only then does clause 17.03(d) become active to permit the otherwise 15-hour straight-time limit to be exceeded.

57 The grievor was travelling on Saturday, June 5, and Sunday, June 6, 2010, which the evidence disclosed were his rest days. At first glance, it would appear that compensation for his travel would fall under clause 17.03(c), as this clause refers to travel on rest days; however, the clause must be read in its entirety, and it states “on a rest day on which the employee travels and works … .” Therefore, to be compensated under this clause, the grievor must both travel and work. Since the grievor did not work, this is not the clause under which he should be paid for his travel.

58 Clause 17.03(b) refers to travel on a normal workday. Article 15 is entitled, “Hours of Work and Overtime.” According to article 15, the workweek is from Monday to Friday and contains three separate shifts per day, each shift of 8 hours. In all cases, Saturday and Sunday are days of rest. Since the facts disclose that the grievor was not travelling on a normal workday, clause 17.03(b) is not the clause under which he will be paid for his travel.

59 According to the parties, this leaves clause 17.03(a), which states, “on any day on which the employee travels but does not work, at the applicable straight-time or overtime rate for the hours travelled, but the total amount shall not exceed 15 hours’ straight time.” “Day” is defined under clause 2.01(g) as a 24-hour period starting at one of the following three times, 2345 hours, 0000 hours or 0015 hours, and ending 24 hours thereafter. From the facts provided, the grievor’s travel segment from Halifax to London started prior to 1145 hours (roughly around 8:30 p.m.) on Saturday June 5, 2010, and continued past 0015 hours (sometime around the equivalent of 7:30 a.m. ADT) on Sunday June 6, 2010. Since the grievor was travelling on days he was not working, the parties state he is to be compensated under this clause.

60 As the grievor travelled through various time zones, clause 17.02(c) is engaged, and the time is calculated and recorded as if it were in the Halifax-area time zone or ADT.

61 From the evidence before me, there was no dispute over the total number of hours that the grievor was travelling during the Halifax to London portion of his trip, which was 11 hours — 3 hours and 30 minutes on Saturday, June 5, 2010, and 7 hours and 30 minutes on Sunday, June 6, 2010. Given the definition of “day” as set out in clause 2.01(g), the employer divided the payment for the total travel time between two days. The first 3 hours and 30 minutes were paid at double time for Saturday, June 5, 2010, for a total of 7 hours at straight time, and the balance, 7 hours and 30 minutes, was paid at double time, for Sunday, June 6, 2010, for a total of 15 hours at straight time. The grievor was paid a total of 22 straight-time hours.

62 The parties, at clause 17.03, use the following four different phrases when referring to the compensation for an employee while travelling:

1. “shall not exceed” (clause 17.03(a));
2. “not exceeding” (clauses 17.03(b)(i) and 17.03(c)(i));
3. “to a maximum” (clause 17.03(b)(iii)); and
4. “for a maximum” (clause 17.03(d)).

63 In clauses 17.03(a), 17.03(b)(i) and 17.03(c)(i), the parties, by using either the phrase “not exceeding” or “shall not exceed,” effectively set a cap for the amount of compensation to be paid to an employee for travel time.

64 “Exceed” is defined by The New Shorter Oxford English Dictionary as follows:

Go away or out, surpass …Pass beyond or go over (a boundary, a specified point)… Go beyond the limit set by, do more than is warranted by, (a privilege, one’s authority, etc.)… Be greater or more numerous than; be heavier than; go faster than… Be too great or too much for … Surpass, outdo; be superior to…

65  “Exceeding” is defined by The New Shorter Oxford English Dictionary as follows: “The action of exceed…an amount in excess of calculation or what is usual; an excess, a surplus.”

66 The plain and ordinary meaning of the use of the phrases “shall not exceed” and “not exceeding” is clear and, in the context of those clauses, means that the total value of compensation for travel shall be under a pre-determined amount, which has been set as the equivalent of fifteen (15) straight-time hours.

67 Both clause 17.03(b)(iii) and clause 17.03(d), however, do not use phrases that include the words “not,” “exceed” or “exceeding” but instead phrases that use the word “maximum.” Clause 17.03(b)(iii) states, “at the applicable overtime rate for all travel outside the employee’s regular scheduled hours of work to a maximum of fifteen (15) hours’ pay at straight time in any twenty-four (24)-hour period.” Clause 17.03(d) uses the words, “… at the applicable overtime rate for a maximum of fifteen (15) hours’ straight time pay.” The distinction in these clauses, which utilize the word “maximum,” is that clause 17.03(b)(iii) uses the modifiers “to a” before “maximum,” whereas clause 17.03(d) uses the modifiers “for a” before “maximum.”

68 “Maximum” is defined by The New Shorter Oxford English Dictionary as follows:

The largest portion in which matter can exist… The greatest value which a variable may have; the largest element in a set; a point at which a continuously varying quantity ceases to increase and begins to decrease… The highest possible magnitude or quantity of something attained, attainable, or customary; an upper limit of magnitude or quantity… The highest amount attained or recorded within a particular period…A superior limit imposed by authority.

69 I cannot accept the employer’s interpretation that clause 17.03(d) is meant only to be an additional benefit once the compensation cap as set under one of clause 17.03(a), (b) or (c) has been reached on any given day. If I were to accept the employer’s interpretation, on a normal workday, an employee could work the day shift (starting at 0745 hours), thereafter immediately start travelling (at 1615 hours) and travel until just before 0200 hours the following day and receive nothing for compensation after 2345 hours. Also hypothetically, on a normal workday, an employee could work the night shift (starting at 2345 hours the day before), thereafter immediately start travelling (at 0815 hours) and travel until just before midnight, and the compensation cap of 15 hours would have been reached by 1545 hours, and thereafter, the employee would receive no compensation. According to the employer, clause 17.03(d) would only come into effect when the three conditions, namely, after travelling for a minimum of 4 hours, after 2200 hours and before 0600 hours, and no accommodation is provided, and only after the maximum of 15 hours of straight time has been already accumulated towards the travel on any given day. This interpretation does not make any sense.

70 I also do not accept the grievor’s interpretation that clause 17.03(d) is a stand-alone benefit to be paid above and beyond the amount of the compensation caps established at clauses 17.03(a), (b) and (c). If the intention of the parties was to have done that, I have no doubt that they would have used much clearer language, such as the language found in article 18. Article 18 covers call-back pay. Clause 18.01(c) is the operative part of the clause and states as follows:

(c) after the employee has completed his/her work for the day, and returns to work the employee shall be paid the greater of,

(i) compensation at the applicable overtime rate for the time worked,

or

(ii) compensation equivalent to four (4) hours’ pay at the straight-time rate … .

71 If, as suggested by the grievor, clause 17.03(d) was meant to provide to an employee an additional benefit, above and beyond the amounts already being paid in clause 17.03(a), (b) or (c), there are many other potential ways that clause could have been made simple and clear, using words similar to those found at clause 18.01(c)(ii). The wording would be something like as follows:

72 The parties did not use the simple and clear words, which are found in the very next clause of the collective agreement. Instead, the parties used those words, which are found in clause 17.03(d), all of which must mean something. If I were to accept the submission of the grievor, I would be ignoring the entire phrase found in the latter part of the clause after the word “compensated,” which is as follows: “at the applicable overtime rate.” If the grievor’s interpretation of clause 17.03(d) is correct, the phrase “at the applicable overtime rate” is redundant because in the grievor’s interpretation, the overtime rate is irrelevant, as the amount to be paid is 15 hours at the straight-time rate. This also begs the question as to why the parties used the words “for a maximum” directly after the phrase “at the applicable overtime rate.” These words and phrases are there for a purpose. This is further emphasized by the fact that the specified rate of pay at clause 17.03(d) is the applicable overtime rate. In clauses 17.03(a), (b) or (c) there is a possibility that the rate of pay is at the straight time rate, and not at the overtime rate.

73 Further, if the parties had intended that clause 17.03(d) be meant as additional compensation (irrespective of which party’s interpretation I would accept), clause 17.03 would have inserted the word “or” between clauses 17.03(a) and 17.03(b) and again between clauses 17.03(b) and 17.03(c) and would have inserted the word “and” between clauses 17.03(c) and 17.03(d). This is clear by virtue of the words used at clause 17.03(c). By using the word “and” between clauses 17.03(c)(i) and 17.03(c)(ii), it is clear that the parties intended for the payment of both the travel time and the work time.

74 I find that clause 17.03(d) has a meaning different from that which has been proposed by either the grievor or the employer.

75 I do not find as suggested by the parties that clause 17.03 sets out only three options for the payment of compensation when an employee is required to travel for his or her employer and that clause 17.03(d) is meant to augment the compensation in clause 17.03(a), (b) or (c); I find instead that clause 17.03 sets out four distinct options to compensate the employee for travel. Clause 17.03(d) is meant specifically to cover exactly the situation that the grievor was in, namely, travelling overnight, the travel straddling two days and no accommodation being provided. In those circumstances, notwithstanding what clauses 17.03(a) states, the maximum amount the grievor shall be compensated when travelling under these circumstances is fifteen (15) hours at straight time.

76 Clause 17.03(d) sets out a number of conditions that must occur to engage compensation under that clause, the more obvious of those conditions being that an employee must be travelling between 2200 hours and 0600 hours for four hours or more and have not been provided with accommodation by the employer. These though are not the only conditions contained in clause 17.03(d); the beginning of the clause starts with the phrase, “notwithstanding the limitations stated in Article 17.03(a), (b) and (c), where an employee travels on duty, but does not work … ,” and the end of the clause has the phrase, “… shall be compensated at the applicable overtime rate for a maximum of fifteen (15) hours’ straight-time pay.”

77 “Notwithstanding” is defined by Black’s Law Dictionary as “despite; in spite of.” So, what are the limitations as set out in the other clauses at clause 17.03 that “despite” their existence, clause 17.03(d) shall be applicable? The employer argued that the limitations contained in the other parts of clause 17.03 all place a cap on the amount of compensation payable to an employee when he or she is travelling. The grievor stated that the limitations are not just the cap but also what work or non-work variables are engaged and when the travel takes place. I agree with the submissions of the grievor with respect to the limitations that the term “notwithstanding” modifies at clause 17.03(d).

78 The term “notwithstanding,” as found in clause 17.03(d), means “in spite of” all of the different variables that are set out at all of clauses 17.03(a), (b) or (c). In other words, clause 17.03(d) is the clause meant to be utilized if the employee is travelling and that travel occurs overnight and encompasses a minimum of four hours between 2200 hours and 0600 hours and no accommodation is provided; this clause is what governs his or her travel. The compensation cap is still fifteen hours of straight-time pay. It is to be used instead of any of clauses 17.03(a), (b) or (c). It is not meant to be used in addition to or in conjunction with any of clauses 17.03(a), (b) or (c).

79 The parties have clearly set out their intention with respect to compensation maximums in clause 17.03 generally and that is fifteen (15) hours’ straight time. If there is any confusion as to this maximum, we can look to clause 17.03(b)(iii), which deals with travel on a normal workday when an employee travels and works. When referencing the compensation cap for the travel time on a normal workday outside the employee’s normal hours of work, clause 17.03(b)(iii) states, “… to a maximum of fifteen (15) hours’ pay at straight time in any twenty-four (24)-hour period.”

80 The grievor argued that the phrases “to a maximum” and “for a maximum” must mean something different. In this regard, I was referred to PIPSC,wherein the adjudicator stated at paragraph 19 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. While I would agree that in most cases this would be true, as set out at paragraph 63 herein, the parties used four different phrases to refer to the calculation of compensation for travel. As I have already pointed out the phrases “shall not exceed” and “not exceeding” mean the same thing. It is equally clear that the phrase “to a maximum,” as found in clause 17.03(b)(iii), is another way of stating, “shall not exceed” or “not exceeding.” In this case, the parties clearly are using different words and phrases to mean the exact same thing and they are doing so in the same clause, clause 17.03. Given the reasons I have already articulated with respect to the interpretation of clause 17.03(d), I find that the phrase “for a maximum,” when used in clause 17.03(d), is no different than the phrases “shall not exceed”, “not exceeding” and “to a maximum.”

81 I find as a fact that the grievor should have been compensated only under clause 17.03(d) and not clause 17.03(a) or a combination of clauses 17.03(a) and 17.03(d). The total compensation the grievor was entitled for the Halifax to London segment of his trip should have been 15 hours at the straight-time rate.

82 Given the above reasons, I do not need to address the employer’s argument with respect to pyramiding.

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

V. Order

84 The grievance is dismissed.

June 22, 2015.

John G. Jaworski,
adjudicator