FPSLREB Decisions

Heard at Québec, Quebec,
February 27 and 28, 2018.
(FPSLREB Translation)

REASONS FOR DECISION

Introduction

1        The grievors, Jean Bérubé, Frédéric Bourget, Sébastien Bourget, Pauline Carrier, Valérie Charrette, Yvan Côté, Mélanie Desrosiers, Marilou Jobin, Stéphanie Montcalm, Olivier Morin, and Yves Proulx, are employees of the Canadian Food Inspection Agency (“the employer”). They allege that the employer violated clause 27.06 of the collective agreement between the Public Service Alliance of Canada (“the bargaining agent”) and the employer for the Public Service Alliance of Canada bargaining unit, which expired on December 31, 2014 (“the collective agreement”). Specifically, they allege that the employer incorrectly denied paying them overtime for travelling time between their temporary accommodations and their temporary workplace, contrary to the clause in question. As a corrective measure, they request that the overtime be paid.

2        The employer argues that the claims were denied because the overtime requested was not eligible under the collective agreement. Therefore, it submits that it did not violate clause 27.06 of the collective agreement.

3        The notices of referral to adjudication for the grievances were filed in August 2013 with the Public Service Labour Relations Board.

4        As I will explain later in this decision, I find that the grievors did not demonstrate that the employer violated clause 27.06 of the collective agreement.

Legislative clarifications

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 (SI/2014-84), creating the Public Service Labour Relations and Employment Board to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 396 of the Economic Action Plan Act, No. 2,an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) as that Act read immediately before that day.

6        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act,the Public Service Labour Relations Act, and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act (“the Act”), and the Federal Public Sector Labour Relations (“the Regulations”).

Background

7        The grievors ask to be remunerated for overtime incurred during travel between November 2011 and July 2012. During that time, they were required to report to different establishments outside their headquarters area. Each grievor received authorization to travel and used an employer vehicle to drive to the different establishments. The employer refused to grant the requested overtime to the grievors.

8        The grievors’ claims are based on clause 27.06 of the collective agreement, which, in their opinion, entitles them to be paid at the applicable overtime rates for their travel time. The clause states the following:

Other than when required by the Employer to use a vehicle of the Employer for transportation to a work location other than the employee’s normal place of work, time spent by the employee reporting to work or returning to his or her residence shall not constitute time worked.

9        The grievors challenge the employer’s decision not to grant them the requested overtime for the time they spent travelling between their temporary accommodations (their hotel) and their temporary workplace. As a corrective measure, they request that the employer grant them that overtime.

10        At the final level of the grievance process, the employer decided that time spent travelling between temporary accommodations and a temporary workplace is not considered time spent working. It specified that nothing in the collective agreement or the Treasury Board of Canada Secretariat’s Travel Directive provides such a right. Therefore, the grievances were dismissed.

Issue

11        The issue is the following: Did the employer violate clause 27.06 of the collective agreement?

Statement of facts

12        The parties submitted a joint statement of facts and a table summarizing each grievor’s claim.

13        Frédéric Bourget, a meat hygiene inspector classified at the EG-03 group and level, was the only grievor to testify at the hearing. He outlined the facts that led to his grievance. The bargaining agent and the employer explained that the facts that gave rise to the grievances that the other grievors filed were similar to those that Mr. Bourget presented. It was agreed that if his grievance were allowed, then the other 10 grievors, also classified at the EG-03 group and level, would benefit from the same remedy.

14        Mr. Bourget has worked at Establishment 311 in Saint-Anselme since 2000. He was instructed to report to Establishment 484 in Saint-Alexandre from May 21 to 25 and May 27 to 31, 2012. He seeks 0.5 hours’ overtime for the travelling time from his hotel to his temporary workplace in the morning and from his temporary workplace to his hotel at the end of the day. He made 14 such trips and so seeks the payment of 7 overtime hours.

15        The employer refused to pay him that overtime. However, it did pay his travelling time from his headquarters area (Establishment 311 in Saint-Anselme) to the area outside his headquarters area (Establishment 484 in Saint-Alexandre), as well as his travelling time to his residence. It also paid his travel expenses, in accordance with the Travel Directive.

16        A form entitled “[translation] Statement of Attendance, Overtime, and Bonus Report” and signed by Mr. Bourget was adduced in evidence. Specifically, in it, he used code 89 to claim an additional 0.5 hours’ overtime for his travelling time from his hotel in Rivière-du-Loup (where he lived while on government business) to his temporary workplace (Establishment 484 in Saint-Alexandre) from May 22 to 25 and May 28 to 31. He also used code 89 to claim an additional 0.5 hours’ overtime for his travelling time from his temporary workplace to his hotel from May 22 to 24 and May 28 to 30.

17        Although the employer refused to pay that overtime, it paid Mr. Bourget’s travelling time from Saint-Anselme to Rivière-du-Loup on Monday, May 21, 2012. It also paid his travelling time from Saint-Anselme to Rivière-du-Loup on Sunday, May 27, 2012. And it paid his travelling time from Establishment 484 to Establishment 311 on Thursday, May 31, 2012.

18        Mr. Bourget pointed out that in 2010 and 2011, the employer had paid his travelling time from his hotel to his temporary workplace in the morning and from his temporary workplace to his hotel at the end of the day. However, since 2012, the employer has refused to pay such overtime.

19        Patrick Fréchette, the acting regional chief inspector, Saint-Hyacinthe, testified at the hearing on the employer’s behalf. In 2013, he was an inspection manager in Saint-Hyacinthe.

20        Mr. Fréchette listed the varied circumstances under which the employer allows or refuses claims for overtime incurred while travelling.

21        He explained that the time an employee spends travelling to work or returning to his or her residence from work is not compensated. However, the time he or she spends travelling from his or her residence or headquarters area to a temporary workplace (outside his or her headquarters area) is compensated; so is time spent returning from that temporary workplace to his or her residence or headquarters area. However, once he or she is in the temporary workplace area, for example, in Mr. Bourget’s case, his temporary accommodations in Rivière-du-Loup, he or she is not compensated for time spent travelling between the hotel and the temporary workplace in the morning and at days’ end.

22        Mr. Fréchette acknowledged that around 2008, 2009, and 2010, it is possible that some managers interpreted clause 27.06 of the collective agreement differently and that as a result, it was not applied consistently throughout the country. He vaguely recalled receiving an email sometime in those years outlining the correct interpretation of clause 27.06. He explained that in general, a manager who regularly receives employees from different headquarters areas receives about 100 overtime claims per month. Thus, it is possible that mistakes were made in the past, but the root of the problem was identified, and the situation was corrected.

Analysis

23        The grievors’ representative began by specifying that the bargaining agent was withdrawing 2 of the 14 grievances, namely, file numbers 566-32-8896 and 8897, on the basis that they were similar to the grievance in file 566-32-8895 involving the same grievor, Valérie Charette.

24        Did the employer violate clause 27.06 of the collective agreement?

25        The grievors’ representative argued that the fact that different managers in the province of Quebec had interpreted clause 27.06 of the collective agreement differently in the past establishes that there is a margin for interpretation, which is a source of uncertainty. She argued that it is possible that employees outside Quebec are compensated for the travel time in question, while employees inside are not. She referred the Board to the English version of clause 27.06, which reads as follows:

Other than when required by the Employer to use a vehicle of the Employer for transportation to a work location other than the employee’s normal place of work, time spent by the employee reporting to work or returning to his or her residence shall not constitute time worked.

26        According to the grievors, two fundamental scenarios must be considered. First, when an employee on authorized travel goes from his or her hotel to a temporary workplace in the morning, and second, when he or she travels from the temporary workplace back to the hotel at days’ end.

27        The grievors argued that the Board should recognize the clear meaning of the exception in clause 27.06, which provides for paying overtime in the first scenario. In it, the employee uses an employer vehicle to travel from his or her hotel in the morning to a temporary workplace. Note that the exception in clause 27.06 specifies that overtime includes time when the employee is “… required by the Employer to use a vehicle of the Employer for transportation to a work location other than the employee’s normal place of work …”.

28        Therefore, the grievors argued that the two required conditions are met, i.e., an employee uses an employer vehicle and travels to a workplace other than his or her normal one, and that the Board must give effect to what is clearly expressed.

29        To support that argument, the grievors referred me to an excerpt from Fernand Morin and Rodrigue Blouin’s Droit de l’arbitrage de grief,6^th Edition, 2012. It sets out the first rule of interpreting a collective agreement, which reads as follows: “[translation] A clear and precise collective agreement provision is not subject to interpretation.” This rule is followed by an explanation, as follows:

[Translation]

VIII.44 - This rule is a guide, a fundamental principle for interpreting not only legislation but also collective agreements. It means that the mere fact that a party does not understand or pretends not to grasp the real meaning of a provision, refuses to give effect to it, or even schemes to avoid applying a clear prescription of the collective agreement cannot authorize the adjudicator to interpret it. If the literal and the legal senses of the same provision coincide, and if the first meaning understood from a term is consistent with the spirit that normally emerges from the whole, then the adjudicator must give effect to what is so clearly expressed, unambiguously articulated, and obviously considered as intended by the parties.…

30        The grievors also referred me to the following excerpt from Goldman v. R.,
[1980] 1 S.C.R. 976: “Canons of construction find their principal use where there is ambiguity. They must not be employed, however, to twist and torture the plain meaning of words.”

31        In summary, the grievors submitted that the time spent travelling from their hotel to their temporary workplace in the employer’s vehicle constituted overtime.

32        The grievors argued that in the second scenario, the meaning of clause 27.06 of the collective agreement is not as clear. In this scenario, the employee uses an employer vehicle and travels from his or her temporary workplace to his or her hotel at the end of the day. Note that the two conditions required, which are that the employee use an employer vehicle and that he or she travel to a workplace other than her or his normal one, are not met. In the circumstances, the grievors’ representative argued that the union and employer could clarify this clause in future negotiation rounds to reach an agreement that would make things easier.

33        In any case, the grievors emphasized that travel time may constitute overtime for an additional reason. Specifically, although employees are responsible for time spent travelling between their residences and workplaces in their headquarters areas, once they leave those areas on government business, the employer is responsible for compensating them for all time spent at work or travelling on government business, including when travelling between temporary workplaces and temporary accommodations. Thus, in their view, the collective agreement does not require employees to travel without being compensated while on government business.

34        As for the employer, it argued that travelling time between temporary accommodations and temporary workplaces cannot be considered overtime. The collective agreement does not provide for compensation for that travelling time. The exception to clause 27.06 stipulates that when an employee must use an employer vehicle to travel to a workplace other than his or her headquarters, the time spent travelling to work or returning to his or her residence may be considered overtime. However, at all times, the employer compensated that travelling time between a residence and a temporary workplace for both the outbound and the return trips. In these circumstances, the employer complied with the provisions of the collective agreement.

35        The employer argued that I should keep in mind certain interpretation principles. In Wamboldt v. Canada Revenue Agency,2013 PSLRB 55 at para. 25, the adjudicator described the main applicable principles as follows:

… My task is to garner what the parties agreed to from the words they used. In doing so, I cannot change or alter the words they used when they entered into the collective agreement. When interpreting the words used in a collective agreement, I must use their ordinary, everyday meaning, unless doing so would lead to an absurd result or unless the agreement defines them in a special or particular way. I must interpret the words used within the overall context of the agreement in which they appear. And finally I am prohibited from amending the collective agreement by virtue of section 229 of the Act.

36        At paragraphs 27 and 28 of Wamboldt, the adjudicator described two additional principles as follows, which he deemed relevant; in the employer’s opinion, they are relevant to this case:

First, a benefit that has a monetary cost to the employer must be clearly and expressly granted under the collective agreement; see, for example, Cardinal Transportation B.C. Inc. v. Canadian Union of Public Employees, Local 561 (1997), 62 L.A.C. (4th) 230, at para 27; Greater Sudbury (City) v. Ontario Nurses’ Association, [2011] O.L.A.A. No. 471 (QL), at para 23; and Essex (County) v. Canadian Union of Public Employees, Local 2974.1 [2006] O.L.A.A. No. 689 (QL), at para 23.

Second, parties to a collective agreement are generally considered to have attempted to arrive at an agreement that is easy to apply in daily practice. Hence, an interpretation that produces a clear result is generally to be preferred to one that produces a messy or uncertain result, if only because a clear result is more likely to produce and maintain the “… harmonious and mutually beneficial relationships between the Employer, the Alliance, and the employees …” that is one of the purposes of the collective agreement; see clause 1.01. In short, an interpretation that makes applying the provision easy in practice as a rule is to be preferred over one that makes that application difficult if not impossible.

37        The employer mentioned that clause 27.06 of the collective agreement must be interpreted in its immediate context and in that of the collective agreement as a whole. Note that article 33 limits paid travelling time. In particular, clause 33.02 provides an important clarification, as follows:

33.02 When an employee is required to travel outside his or her headquarters area on government business, as these expressions are defined by the Employer, the time of departure and the means of such travel shall be determined by the Employer and the employee will be compensated for travelling time in accordance with clauses 33.03 and 33.04. Travelling time shall include time necessarily spent at each stop-over en route provided such stop-over is not longer than four (4) hours.

[Emphasis added]

38        According to the employer, clause 33.02 addresses situations in which “… an employee is required to travel outside his or her headquarters area on government business …”. Under that clause, employees are entitled to compensation for travelling from their residences (or their establishments in their headquarters areas) and to their residences (or their establishments in their headquarters areas) on the first and last days of their government business in temporary headquarters areas.

39        For example, an employee on government business from Monday to Friday would be entitled to compensation for travelling from and to his or her residence on the Monday morning and then the Friday end of day. However, that clause does not provide for compensating an employee for travelling on days on which he or she did not travel to and from his or her residence (or establishment in the employee’s headquarters areas). In this example, the employee is not compensated for travelling within the temporary headquarters area from Tuesday to Thursday because he or she did not travel to or from his or her residence on those three days.

40        The employer adds that clause 27.06 of the collective agreement refers to paid overtime and not paid travelling time. It states that time an employee spends travelling to work or returning to his or her residence is unpaid, except when the employer requires her or him to use an employer vehicle to travel to a workplace other than the employee’s normal one.

41        According to the employer, four conditions must be met for an employee to invoke the exception in clause 27.06 of the collective agreement: (1) the travelling time must be overtime; (2) travel to and from the workplace must be from and to the employee’s residence; (3) the employee must use an employer vehicle; and (4) the workplace must be different from the employee’s normal workplace.

42        The employer added that the reason for the second condition for the exception in clause 27.06 to apply (“[translation] travel to and from the workplace must be from and to the employee’s residence”) is that in the French version of clause 27.06, the phrase chez lui ou chez elle is used as an equivalent to the English term “residence”.

43        Black’s Law Dictionary defines “residence” as follows: “‘Residence’ means a fixed and permanent abode or dwelling-place for the time being, as contradistinguished from a mere temporary locality of existence”.

44        According to the employer, the grievors were not at their “residences” when they were at their hotel. They were living in temporary accommodations away from their homes or residences. Furthermore, had they not been staying at temporary accommodations far enough away from their homes or residences, then they would not have been reimbursed for their hotel nights and meals. However, all the grievors were compensated for costs incurred during their travel, in accordance with the Travel Directive.

45        The employer also argued that in 1980, in Mayoh v. Treasury Board (Regional Economic Expansion), PSSRB File Nos. 166-02-8896 and 8914 (19810306), an Adjudicator and Member of the Public Service Staff Relations Board interpreted a clause that was practically identical to clause 27.06. That clause in Mayoh read as follows:

Other than when required by the Employer to use a vehicle of the Employer for transportation to a work location other than his normal place of work, time spent by the employee reporting to work or returning to his residence shall not constitute time worked.

46        In Mayoh, the Adjudicator found that for an employee to be able to invoke the exception in the clause at issue (identical to clause 27.06), the employee had to leave his or her residence to travel to a workplace in a vehicle provided by the employer, and as a result, time spent travelling from the employee’s “residence” might have been considered overtime. However, if the employee left from his or her usual workplace or from any other location (a motel, for example) but not from his or her “residence” to travel to a workplace, the clause in question, which dealt with overtime, did not apply.

47        The employer also relied on the Federal Court of Appeal’s decision in Lamothe v. Canada (Attorney General),2009 FCA 2, to support its position that clause 27.06 does not provide for compensating an employee for travelling time between temporary accommodations and a temporary workplace. The Court found that travelling time once at the destination between accommodations and the training centre was not remunerated.

48        In conclusion, the employer argued that the collective agreement contains no provisions on travel to or from a hotel or temporary accommodations.

49        Based on the law and evidence and for the following reasons, I find that the requested overtime cannot be granted under the exception set out in clause 27.06 of the collective agreement.

50        My goal is to determine the parties’ true intent when they entered into the collective agreement. To do that, I have to consider the ordinary meanings of the words used. I must also consider the rest of the collective agreement.

51        I note that clause 33.02 (travelling time) of the collective agreement does not mention that an employee is entitled to compensation for travel to and from a hotel or temporary accommodations. This clause deals with travel to or from an employee’s headquarters area. It does not apply in cases in which employees have reached the place at which they will perform temporary duties. At paragraph 31 of Mayoh, the Adjudicatorexplained the basis of this finding, as follows:

31. Clearly paragraph 23.01 [similar to clause 33.02] applies to the grievor when travelling from his headquarters area and when travelling to it. Paragraph 23.01 has no application when the employee has reached his field work [sic] site, because the headquarters area is no longer the destination or the point of departure. Does, however, paragraph 22.18 [identical to clause 27.06] provide the grievor with a basis for his claim?

52        In this case, can clause 27.06 (overtime) be used as the basis of the grievors’ claim?

53        Clause 27.06 describes an employee’s home as his or her “residence”, but that term is not defined in the collective agreement. Therefore, it must be given its ordinary and common meaning, unless it results in an absurdity or the agreement attaches a particular meaning to it.

54        In my opinion, as was stated in Mayoh, the term his or her “residence” evokes the idea of permanence. It is known as “home”. Furthermore, I note that the clause interpreted in that decision was within a word or two of being identical to clause 27.06.

55        However, the Adjudicator found that the clause could not be a basis for the grievors’ claim, as set out at paragraphs 34 to 39 of the decision as follows:

34. From the above definitions, both in English and in French, there emerged the strong and preponderant connotation that “residence” and “chez-lui”… mean “home”, as counsel for the employer has contended. I must conclude, therefore, that “residence” as used at paragraph 22.18 [identical to clause 27.06] of the collective agreement pertains to an employee’s usual dwelling, home or abode, which is the place he leaves behind when he travels outside his headquarters area. “Residence” does not, then, pertain to a place of temporary accommodation such as was provided to the grievor at Outlook. When on April 2 the grievor proceeded to Cutbank, he left his “residence”, or abode, or home, behind him

35. Thus, the grievor left his residence for Cutbank on April 2nd and left Cutbank for his residence on April 6th. The intervening days, April 3rd, 4th and 5th, were not related to his “residence” or to his “headquarters area.” The motel at Outlook was not, within the ordinary meaning of the word, the grievor’s residence.

…

37. … If an employee merely leaves from his normal place of work, or from anywhere else, and not from his “residence”, to go to a field location, the paragraph [about overtime] has no application to him.

…

39. The collective agreement is silent as to payment for travel between a work site [sic] and the employee’s motel….

56        I agree with the Adjudicator’s reasoning in Mayoh.

57        In my opinion, to determine whether the grievors’ travelling time between their temporary accommodations and their temporary workplace corresponded to overtime worked, I must interpret the terms used in clause 27.06 by giving them their ordinary and usual meanings. However, I must also interpret them in the context of the entire collective agreement.

58        In this case, clauses 33.01 to 07 of the collective agreement specify the circumstances under which travelling time is paid. In particular, clauses 33.01 to 04 are relevant to the facts of this case.

59        Clause 33.01 states the following: “For the purposes of this collective agreement, travelling time is compensated for only in the circumstances and to the extent provided for in this Article.”

60        Then, clause 33.02 provides for compensation when an employee is required to travel outside his or her headquarters area on government business. It states that the employee “… will be compensated for travel time in accordance with clauses 33.03 and 33.04 [and that] [t]ravelling time shall include time necessarily spent at each stop-over en route provided such stop-over is not longer than four (4) hours.”

61        Clause 33.03 deals with situations in which employees use public or private transportation or request an alternate departure time or means of transportation. Clause 33.04 distinguishes between travel on a normal workday, a day of rest, or a designated paid holiday.

62        Thus, in my view, for an employee’s travelling time to be considered overtime under the exception in clause 27.06, the employee must (1), work overtime; (2), travel from his or her residence to a workplace other than his or her normal one or return from it to his or her residence; and (3), use an employer vehicle.

63        The employer must also consider the fact that travelling time can be compensated only in the circumstances and to the extent provided for in article 33. However, clause 33.02, as does clause 27.06, requires that an employee travel to perform government business outside his or her headquarters area. Finally, travelling time includes stop time en route, as long as it does not exceed four (4) hours (clause 33.02).

64        In summary, a consistent reading of clauses 27.06 and 33.01 to 33.04 of the collective agreement leads to the conclusion that the employer correctly denied the grievors’ overtime claims for their travel times between their temporary accommodations and their temporary workplace. In my view, this interpretation is consistent with what the bargaining agent and the employer negotiated.

65        In the circumstances, I find that the employer did not violate clause 27.06 of the collective agreement.

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

Order

67        The grievances are dismissed.

July 10, 2018.

FPSLREB Translation