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HomeMy WebLinkAbout1981-0187.Williamson et al.82-05-11 f I ~" '( 1111 ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G JZ8 - SUITE 2roa TELEPHONE' 416/598- 0688 f '. Bet~'ieen : ( Befcre~ 1.87/81. 289/31 454/81 546/81 682./81 124/82 IN THE MATTE~ OF ~~ AF~ITF~TION Under THE CROWN EMP~OYEES COLLECTIVE BARGAr~ING AC? Before THE GRIEVANCE SETTLEMENT BOARD r. " -, OPSEU (3. Williamson at al) - And - 125/82 126/32 127/82 128/32 129/82 13G/82 Grie'lors The Crown in Right of ontario' (Ministry of Transportation and Communications) Employer P.G. Barton F.D. Collom G. Peckham Vice Chairman Hember M.ember For the Grievor: D. Starkman, Counsel Golden-Levinson For the Employer: Hear.i.na: ~ W.J. Gorchinsky C~ief Staff Relation$ Officer Civil Service Commission April 13, 1982 -l "\ (. ( ( ( - 2 - AHARD There are basically two issues raised by these grievances. A third issue is raised by Sabatini 682/81 which issue cpncerns the calculation of meal and room allowances and which issue the parties agreed to resolve. Accordingly the Sabatini matter was adjourned sine die, the Board retaining jurisdiction to deal with it. The issues raised by the remaining grievances concern the calculation of mileage, travel time, and meal allowances, in situations in which the Ministry has assigned the Grievors to certain headquarters, which headquarters are not their home. The first issue concerns a group of Grievors from the Sault Ste. Marie area who are IIPoo1 Operators" driving road maintenance equipment, inter alia. On November 2, 1981 they received a memo indicating that as a result of a review of headquarters of various Pool Operators throughout the district, they were to be reassigned to Goulais or Echo Bay, from Sault Ste. Marie. Since Echo Bay and Gou1ais are 15 to 17 miles away fram Sau1t Ste. Marie, the effect of this reassignment was that, since the Grievors lived in Sault Ste. Marie, they would not get paid mileage when driving from their home to those two headquarters. Since their work for approximately six months of the year was in the area of these headquarters, this meant that they were driving to work at their own expense. Prior to this these p~rsons had had Sault Ste. Marie designated as their headquarters and were of course paid the mileage to travel to the area of Echo Bay and Goulais. The headquarters have not been changed from those designated on November 2, 1981 and as a result the issue raised by these grievances at least is whether or not the Employer can make a change in a person's headquarters from time to time. The second issue involves the remaining Grievors who are primarily surveyors from the Ontario Central Region. They maintain no office as such and J,. , ~( - 3 - spend their time travelling about the Central Region working on various surveying jobs which may take anywhere from one day to several weeks. Until a few years ago, most of these persons had the designation of headquarters applied to their homes. As a result they would be paid mileage and accompanying allowances whenever they went to work at a job site. In the case of all .of these Grievors ~he designation of headquarters was changed to a central area, in particular 3501 Dufferin Street, Downsview, { Ontario. The result of this change is that the Ministry takes the position that they are only entitled to mileage and accompanying benefits as calculated from Downsview rather than from their"homes. The situation with respect to the people in the Ontario Central Region is further complicated by the fact that many of the job sites are more than a certain designated distance from the headquarters assigned to the Grievors, i.e., Downsview, Ontario. The Ministry has established certain policies with re~pect to work which is done more than a certain distance from headquarters. These policies, among others ( are expressed in a memorandum dated April 28, 1978 (Exhibit 5) as further explained by subsequent memoranda, and by a Travelling and Living Expense Accounts Manual prepared by the Ministry in March of 1981. According to policies established. at job sites beyond a certain distance from the assigned headquarters the Ministry will pay certain meal and accommodation expenses. Recognizing, however, that many employees will commute rather than stay in a motel, where the job site is not too far from home, the Ministry policies indicate that if the employee elects to commute, and other factors are established, the total a~ount that the person can claim for mileage and accompanying expenses cannot exceed the cost of maintaining ( ... ( - 4 - ( 1I0verlapping payment for distances travelled shall be reduced to a minimum by designating cars on mileage to transport other employees travelling a common route. The designation can be on a rotational basis at intervals of no less than 2 week periods (expense account .peri od) . " What this means is that when expense accounts are put in, two people from the same geographical home area who travelled to the same job site are deemed to have travelled together and the mileaqe is based on one half the distance from the assigned headquarters to the job site. It can be seen that the basic problems behind" the calculation of these allowances are caused by the fact that, in the case of the $00 employees, they have to travel some 15 to 17 miles to tl get to what is their assigned headquarters. This travel is gratis. In the case of the Ontario Central Region employees, by designating a headquarters other than their homes, and by introducing the car pool policy, the Ministry has reduced the amount of mileage allowances they are entitled to recover. In addition, for certain jobS in which on site allowances for accotmlodation and meals are provided, those employees who choose to. commute daily have their mileage allowances reduced to what it would have cost if they had stayed on the site. This issue has been a contentious one between the parties for ( some years. The designation of headquarters at places other than home addresses by the Ministry, probably came about as a result of a grievance ~ ( - 5 - entitled OPSEU and MTC 104/76 (Beatty). That case involved a rather narrow issue of travel time when travel was involved outside of regular hours) and where the employees had as their headquarters their homes. In essence' the problem as far as the Ministry was concerned was that employees were getting mileage from their homes to their rotating places of work on a daily basis. It was indicated therein: "We are of the considered opinion that when this Ministry offers, to their employees, as it does, the option of either living, at the employer1s expense) at that work site itself or of travelling on a daily basis from their home, as a designated employment headquarters) to the location of their work, it has explicitly authorized the time spent travelling to the work destination if and when the employee choses ari alternative." The implication therein was that by designating homes as headquarters the Ministry was authorizing travel at Ministry expense, to job sites. The Collective Agreement is relatively silent on the question of headquarters and job sites. Naturally where there are explicit provisions in the Agreement that govern the matter, those provisions will apply and any ( inconsistent provisions found in Policy Manuals or Memoranda will not. Article 14.1, the Call Back Provision, deals with: IIplace of work. II Article 17.2, the Meal Allowance Provision, reads: I1If during a normal meal period the employee is travelling on government business other than; ... (b) within (24) twenty-four kilometers of his assigned headquarters.. ,II, Article 20.2, dealing with Isolation Pay) defines a work location as: lithe address of the working place at which the employee is normally stationed or, in certain special cases, another location designated as headquarters by the Ministry.1I ( I ,- -, ( - 6 - Article 22.1, dealing with Mileage Rates. indicates that: IIIf an employee is required to use his own automobile on the employer's business, the following rate shall be pai~ ...11. Article 22.3 (Appendix 5) indicates; II the use of privately owned autolOObiles on the employer's business is not a condition of employement.1I ( Article 23, dealing with time credits while travelling. refers in Article 23.3 to travel directly from home or place of employment"... until he reaches his destination.1I It also deals with trips from the destination "until he reaches his home or place of employment. II Article 24, dealing with job security, uses the designation of IIheadquarters". Also relevant to this issue of course is the deemed management's rights clause, section 18 CECSA. The position of the Union can be summarized as follows: It is suggested that the designation of headquarters is an artifical concept introduced in order to save money. It is argued that Article 23 refers to ( travel time authorized by the Employer between work and place of employment. It does not add a third category such as a headquarters andit is said that the concept of headquarters is artificial. The Union argument continues by indicating that since Article 23 only refers to home or place of employment, the same geographical location should apply to Article 22.the mileage provision even though the same words do not appear therein. The Union also argues that to allow the Employer to change headquarters unilaterally would defeat the job security provisions of Article 24. / ( ( " ( ( - 7 - With respect to the question of daily expense allowance as reducing allowable mileage charges, the suggestion is that once the Employer indicates that a job will be done at some site, then the employee is "required" to drive to that site. Accordingly it is suggested that he is therefore required to use his own automobile on the Employer1s bu s i ness and that to 1 i mil the mi 1 eage by i ntroduc ; n g an art ifi ca 1 concept of headquarters is not justified. It is also suggested ~hat the only power with respect to jobs where meals and accommodation are payable is to give the employees a choice of commuting or staying on the job site. Once an employee elects to commute, it is suggested that various caps such as the car pool arrangement are unauthorized. In order to resolve these issues one must look at the Collective Agreement as a whole. Various phrases including place of work, assigned headquarters, work location, home and place of employment, are used indiscriminately. We feel that the Agreement does contemplate employees who may not have a fixed place of work and does contemplate that these employees may have an assigned headquarters. The use of the term "assigned headquarters" in Article 17.2 and the definition of work location in Article 20.2 (where normally stationed or in certain special cases and other locations designated as headquarters by the Ministry) seems to contemplate such employees as those surveyors within the Ontario Central Region in particular. Thus it seems to us that on the question of whether or not a headquarters other than a person's home may be designated, the practice adopted by the Ministry is totally consistent with the Agreement. (, - 8 - JI Although there is no evidence on the point it is reasonable to assume that Goulais and Echo Bay are locations where equipment is kept and to pay employees to go to where their equipment is to start the day1s work does not seem to be consistent with practice in the private sector. If the designation of assigned headquarters were changed on a regular basis one might have some suspicions that the employer was misusing its power to designate. There is no suggestion of this on the evidence) ( however. The Travelling and Living Expense Accounts Manual deals with headquarters and indicates that the government policy is only to change these where a transfer to another District or Branch occurs or when a job site is involved at which work will continue for at least two years. With respect to the question of mileage in the Central Region) ( . it would be an unusual Agreement which provided mileage for employees to drive to a place of work on a regular basis. Indeed the concept of mileage is, in the pri va te sector, norma 11 yreserved for 5 i tua ti ons in whi ch employees travel to some destination other than a regular place of employment. We feel that in the situation in which there is no regular place of employment, it is reasonable for the Employer to designate some central area such as Downsview, Ontario as an assigned headquarters and to only pay mileage from that assigned "place of employment" to a particular destination (job site). Thus the travel time provision Article 23.3 which indicates that travel directly from home or place of employment to a particular destination will be covered seems to contemplate three geographical locations rather than two and for the Employers to indicate their place of employment as one central assigned headquarters seems to us to be reasonable. Indeed, the grievances filed by the Ontario Central Region employees as their ( "address of employment" as 3501 Dufferin Street, Downsview, Ontario. Thus .- It - 9 - the designation of headquarters as Downsview rather than as the homes of particular Employees seems justified. We do not accept the concept that once a job site is chosen, an Employee is "required" within the meaning of Article 22, to drive from his home to that site or is consequently "authorized" by his Employer to do so. To accept that interpretation, which would mean mileage was payable from home to job site, would be to allow Employees to determine the amount "of mileage by moving about the region, something over which the Employer would have no control. 1he issue with respect to reduction of rni1eage and expenses when the job site is one at which Employees are expected to live-in, is a similar one. Can an Employer decide that at more than a certain distance from headquarters, Employees will be required to live-in rather than commute to work daily? If the cost of the former is less than the latter, assuming headquarters are not moved because the job will take a long time, it seems to us that such a decision is within management prerogatives under 5.18(1) of CECBA. The only apparent reference to the provision of overnight accommodation other than meals is in Article 23.4 which deals with time ( credits and excludes certain hours from the clause where "sleeping accommodation is provided." The choice of when to provide such accommodation rather then when to provide mileage seems to us to be left to the Employer. It is accordingly accurate for ,the Employer to say that its payment of mileage and expenses when a person chooses to commute rather than stay on-site, is an "ex gratia" payment. The final question with respect to those in the Central Region is the question of "car pool ;ngll. It seems to us that if the Employer j, ~( " ( ( ( - 10 - controls the authorization of the use of private cars and the payment of mileage, it also has the power to limit such use and require people to fully utilize each car. The "deemed car pooP provision does this aHhough in a reasonably brutal way. It might be wiser for the "teams" to be set up b~ the Employer in advance so that the Employees can take advantage of the system and not incur unnecessary personal expense.' In the result all grievances are dismissed. There are certainly bound to be problems where Employees do not have a permanent work area. It will cost some more than others to get to work daily. The same probl ems exist, however, where there is a permanent work site. Some people live farther away than others and it costs them more to get to work. In the case of the surveyors in the Central Region there may be some area of the Region where it will be financially better to live. If the policies of the Ministry remain consistent for a length of time these persons may be able to identify that place. DATED at London, Ontario this 11th day P.G. Barton Vice Chairman ~.D.~lom Member Peckham Member