Differentiation between commuting and travel time
Question: If an employee is required to go to another location that is farther away than his regular place of work, does the employer have to pay for all or part of the extra travel time to get there?
Answer: This question is best answered by recognizing the distinction between commuting time and travel time.
There is a significant distinction between commuting time and travel time in the employment context. Travel time is work time that is compensable while commuting time is not work time and therefore not compensable. Under the Ontario Employment Standards Act, 2000, for example, commuting time is the time it takes for an employee to get to and from a regular place of work and is not counted as work time for the purposes of the act. However, if the employee has a regular place of work but is required to travel to different locations to perform work for the employer or for the employer’s benefit, the time spent travelling to and from the alternate location is travel time and is compensable. This distinction was recently upheld in Allison v 3359492 Canada Inc.
In a unionized environment, all aspects of an employee’s compensation, entitlement to and calculation of overtime pay is usually established in the applicable collective agreement. Whether or not an employer is required to compensate an employee for extra commuting time to a location outside of her regular place of work depends on the specific language in the collective agreement.
The general rule is that an employee is not “at work” when she travels to her normal worksite. However, arbitral jurisprudence has held that when an employee is required to report to an off-site location, the employer must provide compensation for the extra time and expense incurred in getting there. In Re Simon Fraser Health Region and British Columbia Nurses’ Union, the arbitrator accepted the union’s argument that travel time to an orientation held outside of the employee’s normal workplace should be treated as time worked and therefore payable at the applicable rate, under general principles of arbitral jurisprudence that time spent travelling to a distant location for the purposes of carrying out an assignment constitutes time worked.
Arbitrators have also rejected the argument that an alternate location must be distant to be compensable. Absent any contrary agreement, travelling to another location outside of your regular workplace can be compensable if it involves some “measurable inconvenience.” Measurable inconvenience has been interpreted to include additional traffic congestion or additional travel time.
Employers have also been held to have an implied obligation to pay for travel expenses when an employee is travelling to an offsite location unless the agreement provides otherwise. Therefore, travel allowances should be tailored to meet the specific circumstances of each work environment and any disputes should be resolved by the language of the agreement rather than by overriding principles of arbitration law.
For more information see:
• Allison v. 3359492 Canada Inc., 2016 CarswellOnt 1527 (Ont. Lab. Rel. Bd.).
• Simon Fraser Health Region v. B.C.N.U., 2000 CarswellBC 3025 (B.C. Arb.).
