What is Work?

Where an employee needs a specific qualification to perform a job, is the employer obligated to pay an employee to obtain that qualification? At what point is an employee considered to be “on the clock”?  Two recent arbitration cases have revisited the question of “what is work” and confirmed that it is only when their time is being demanded by their employer that they are entitled to pay for their time.

Canadian Union of Public Employees, Local 4400 v Toronto District School Board (Flaherty)

The employer required Parenting Workers – staff working in centres that serve food – to complete a food handler course and obtain a certification. The Union argued that employees are entitled to wages for the work they perform, including any training they undertake at the direction of the employer. The employer argued that it had no obligation to provide compensation because the course was a qualification required by a third party and not training.  In many cases, employees must obtain qualifications on their own time to be eligible for employment (a law degree comes to mind…).  It is also not unusual for professional employees to be required to participate in ongoing training on their own time to maintain their qualifications.

Arbitrator Michelle Flaherty began her analysis with a determination as to whether the food handler course was a “new requirement” (which would require additional training) or a “change of qualifications” (a new qualification for Parenting Workers). There was no evidence to suggest that the course was a qualification or a professional responsibility of Parenting Workers, and the food handling certification was not listed as a job qualification in job postings, rather it was noted as a special requirement. Arbitrator Flaherty concluded that the food handler certification was a “new requirement” of the job and called for additional training.

Arbitrator Flaherty continued her analysis by noting that the fact that a third party required the food handler certification was not material – it did not change the fact that the training was ultimately required by the employer. She then turned to the collective agreement to determine whether the employer must pay wages in these circumstances and found that it is silent about whether employees are paid wages for training that occurs outside of regular work hours.

Arbitrator Flaherty concluded that there had to be clear language in the collective agreement exempting the employer from the requirement to pay.  The collective agreement had no such language here.  Therefore, the employees who completed the food handler certification outside of regular work hours were entitled to compensation.

International Association of Machinists and Aerospace Workers, Lodge 78 v Vision Truck Group (Wilson)

The employer implemented a process that required employees to arrive at the work building, put their lunches away in the lunchroom, place their belongings in their lockers, put on their uniforms and safety equipment, and then clock-in for work. The process also required employees to clock-out before they head to the change room, gather their things, and exit the work building.  Prior to the implementation of the process, employees would clock-in just as they entered the building and would clock-out just as they were exiting the building. The Union filed a grievance challenging the process, claiming that employees should be paid for the acts that the employer was now requiring to be performed before clocking-in or after clocking-out, because this was all time spent working and, as such, warrants compensation.

Arbitrator Matthew Wilson did not agree with the Union. He reviewed the arbitral jurisprudence, which requires an examination of the activity that an employee is being asked to do and the amount of time spent on such an activity. Generally, where an employer makes a claim on an employee’s time, the employee is entitled to compensation. In this case, Arbitrator Wilson did not find that the employer was making a claim on the employee’s time. With respect to acts prior to clocking-in, employees are preparing to start work, they are not under the control or direction of the employer, nor are they required to do any activity in a specified timeframe or at a particular time. Employees can attend the workplace at whatever time is needed for them to be ready for work. With respect to acts after clocking out, employees are expected to spend the last 15 minutes of their shift cleaning up their work area and putting away their tools – which are part of employees’ duties. They should not be spending that time preparing to go home.