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HomeMy WebLinkAboutUNION-1994-22-11 .. oJ, ~ ?" IN THE MATTER OF AN ARBITRATION BETWEEN: THE EASTERN ONTARIO HEALTH UNIT (The Employer) AND: THE ASSOCIATION OF ALLIED HEALTH PROFESSIONALS: ONTARIO (The Association) AND IN THE MATTER OF AN ASSOCIATION POLICY GRIEVANCE BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIRMAN JOE HERBERT, UNION NOMINEE ROBERT WHITTAKER, EMPLOYER NOMINEE APPEARANCES FOR THE EMPL9YER: THOMAS A. STEFANIK, COUNSEL RAYMOND BESNER, DIR. CORP. SERVICES APPEARANCES FOR THE ASSOCIATION: PHILIP G. HUNT, COUNSEL SUE, McCULLOCH, L.R.O. BRIAN GRIFFINS, STAFF REP. ..-, A HEARING IN THIS MATTER WAS HELD AT OTTAWA ON JUNE 8TH, 1994. ','".1 ,. "'. _ AWARD , ;, ,'~ '. - 1 - The Association claims the Employer unilaterally changed the transportation allowance contrary to Article 16.01 of the collective agreement which is: ARTICLE 16 - TRANSPORTATION ULOWi\NCE 16.01 Effective January 1, 1991, the Em~loyer agree~ to reimburse the employee for all k~loIl1eters dr~ven for business purposes at the following rates: o 4,000 km 4001 10,700 km 10,701 24,000 km over 24,000 km.. 30.Sc per km. 26.5c per km. 22.5c per km. 19.0c per kIn. 16.02 Parking expenses for business purposes will be fully reimbursed. The grievance dated October 23rd, 1992 requests a re- calculation of the mileage payment with retroactivity. The issue concerns the interpretation of the kilometers driven by an employee "for business purposes". The mileage rates are not at issue. The grievance was denied by the Employer and was subsequently submitted to arbitration and came on for hearing as above noted. There is no dispute between the parties as to the Board's jurisdiction to deal with this grievance. It is the Association's position that the practice prior to October 16th, 1992 when the Employer's policy was changed, was that - 2 - the employees were paid portal to portal for kilometers driven and requests that payment be restored. When an ,employee drove directly from her home to se~veclients, ~f the Health unit without first reporting to her office and returned home at the end of the last client call of the day the employee had been paid for all kilometers from and to her home. After October 16th, 1992 the Employer paid mileage claims calculated:from the office to which the employee is assigned excluding "the distance,to and from assigned office and place of residence. The Association further claimed that the Employer was estopped during the life of this collective agreement from changing the previous practice for transporation allowance claims. Ms. McCulloch testified that she attended the negotiations between the parties for this agreement which took over a year to conclude and stated that they were aware of the pre-existing transportation policy and that the transportation allowance was one of the most contentious issues. It is a significant benefit to. the employees who make home visits to clients. A number,'of..p:toposals were exchanged by the parties on this issue including the mileage rates. When .the MOH rates were conceded by, the Association the members wanted a, broad meaning given to the application of:. ,the' rates which were to be calculated portal to portal that 'is, the calculation of the mileage starts when an employee leaves' home:)to:.', service a client and ends at her home unless the employee ,travels',', directly from her home to the Health, Unit office. "iInthat.... situation the mileage' calculation would commence from that office..: J , , - 3 - The employee would not be compensated for mileage from her residence if the office was her first or last stop in her day. She said the parties agreed to maintain the status quo with regard to the calculation of the transportation allowance with the applicable rates. The Association did not attempt to alter the wording of Article 16 on the basis that the practice would continue for the term of this collective agreement which expires on March 31st, 1996. She said that by the prior policy of the Employer, time at work and business mileage were considered to be the same but after October 1992 the time worked started at the same point at the employee's residence but the allowance was differently calculated from the office. That change was significant to a number of the employees who live up to 150 kilometers from their office. If an employee travelled directly from her home to her office or from the office to her home that mileage was not paid and that policy has not changed. Ms. McCulloch agreed that during the negotiations the Employer did not represent that it would change that practice. She said that the terms of Article 16 were drafted by the Employer during negotiations as this was not the Association's proposal. She agreed that the Employer did not refer to the status quo in relation to this section or that the mileage would be calculated from travel to the first to the last client. She agreed that the - 4 - Employer did not change its position during the bargaining. The Association sought to improve the calculation of mileage by reference to portal to portal but agreed with the terms of Articl~ 16 as drafted. Each employee has an office designated', by the Employer even if she works at other Health Unit offices;' When they travelled to other offices an allowance was paid for business purposes. 'i' It is the submission for the Association that the Employer cannot be permitted to unilaterally change the application of an important monetary issue to the detriment of the employees during the term of the agreement. When an employee travels from client to client in a discrete circle and away from home it has been recognized as business mileage and compensated under Article 16.01. That was a long standing practice with a common understanding of the calculation made under this Agreement which cannot be changed during the course of that Agreement. The Association relied on the Employer's agreement at negotiations to maintain the status'quo and therefore did not bargain the guideline language. It relied to its detriment on the Employer's position on this 'issue at bargaining. It was argued that the Employer cannot implement policies inconsistent with the terms of the collective' agreement while "it' is in effect. Where the Employer's present policy applies -'to the start and end of the workday from the employee's place'" of' work there is no dispute but the practice of calculating mileage " from the employee's home when the first and last visit' is that '-o"f" a client should be maintained. Re OPSEU and the Crown in Riqht of " ' - 5 - Ontario, a decision of the Grievance Settlement Board (Kates, July 1988) . It was submitted for the Employer that its policy set out in October 1992 repeats the terms of and is not inconsistent with Article 16. It excludes the calculation of the distance from the employee's residence to her office which is not business travel. The Employer does not pay employees for their travel from home to their work place. The Employer is not estopped from reverting to the system of calculation which is consistent with Article 16. In its position the portal to portal claim of the Association is not reasonable. It was further submitted that there was no clear representation by the Employer at negotiations which was intended to be relied on by the Association that the status quo would be maintained. While Ms.' McCulloch had an understanding that the employees would not be worse off in the application of Article 16 then before there was no clear evidence of representation on this issue and there was no effort to define a designated office for the purposes of the transportation calculation. The Employer is therefore not estopped from applying its mileage policy in October 1992. Re Cancoil Thermal Corp. and UFCW, LOCAL 175, ,34 L.A.C. (3d) 174 (Little); Re The Eastern Ontario Health Unit and the Association of Allied Health Professionals: Ontario - policv Grievance. Job Postinq (Jamieson, June 7,1994). - 6 - The issue arising in this grievance can be determined on the application of the language of Article 16.01 in which the .: :.. .:.' condition for the reimbursement for the transportation allow~nce is that such kilometers be driven "for business purposes". When ,an .,. . ,. employee is required by direction of the Employer which c~n be both by individual direction and by general practice relating to all employees ,through, a policy ,such as that in place to travel:2~cits behalf to attend matters of which the Employer is~esponsible,in ". -. . its operations, such travel time by its very nature is travel for business purposes of the Employer. That concept applies whether the employee sets out from her residence or from the office, to attend to the Employer's business. The key to ,this cons\de~ation is the requirement placed on the employee to service the Employer's needs in this manner. On the facts of this case, it has been obviously beneficial to the Employer to have the employees attend at its,client's residences to carry out the service required by thep}.,before or if at all, travelling to their designated office. Arbitrator Jamieson acknowledged in his award that travel allowances for, the~e employees were "clearly the primary concern,for the Association" and that, .....,. . . '..'" ;,."., . .", - .' ~ ..' ~ it was conceded that employees "presently operate from'" more than one office and do service clients in more,than one area, it took the position that the cOllective"'-- agreement contemplates that each employee in the, "..' ,. bargaining unit be assigned a single work location~or a home office: Any requirement to work at locations"away . " .';> - 7 - from that home office is compensated for under the hours of work and transportation allowance provision in the collective agreement." The issue in that award did not involve the application of Article 16 but was an allegation of an improper job posting where the Employer has specified two office locations for a single job. In the present issue however, it is not the loca tion where the employee is assigned as her office but whether the employee is required by the Employer to travel to do work for it before giving to her designated office. There is no dispute that if the employee reports to the office before an assignment to a client, the mileage fr.om her residence to that office' is not calculated or paid under Article 16.01 and we agree that such mileage which is travel to and from the office at which the employee is assigned and reports is not for business purposes which would be covered under the terms of Article 16.0L That situation must be separated from the Employer's policy whi9h by direction or permission of the Employer has been to direct its employees to travel from their residences to service a client without first reporting into their office and to return home without reporting to her office. The whole of that work day involves travel from client to client of the Employer which we find is travel for business purposes. That distinguishes the concept for the purposes of the Employer from personal mileage driven to report to the Employer's premises in whichever location the employees are assigned, before carrying out any work for the Employer. - 8 - ,The parties have not specifically defined the meaning of "business purposes" but the use of that term reflects that the travel of employees for which the expectation of reimbursement can be reasonably expected and the use of the employee's vehicle for " the purposes of the conduct of any responsibilities in' the Employer's operations, to which the employee has been as~igned or . ';. '. .... expected to be carried out. In our view, to direct these employees , . ; 1 to service clients by travelling from their residences to those of the clients falls within the purpose and intent of this clause. .-::,)",' "-, In the Kates award the Board dealt with a travel' allowance " policy which did not include commuting between an employee'; home and headquarters. It was found that the employee who was required to attend a training course and was authorized to use his own automobile for that purpose and was not required to report to his :', . . ,:. ~ regular place of employment to achieve his destination but' began ,J and ended his trip at his residence, "as such he was on' travel , . , '~ : "',~. status at that point". That finding is consistent 'with the ordinary meaning of travel for business purposes which relate to t",.:'".J . ~": the operational requirements of the Employer. In the present case, when the employee reports to 'her designated office before attending any client of the Employer her , . travel to and, from that office has not been claimed and'is clearly "1 .'. r J, -'.'"f~,' (:',' ,~ .,: <. in that cont~xt" understood to be part of the policy"which has been in effect since at least 1987. . :: ': :~ ,.~ '';: .; ,...., : ~ ::-; - ; To extend however, that restr~ction " ':'1"-';'': .f'.:,,)/'; (':1 to all circumstances'is to deem that the employee who' is' requjred /tJ :,:~~:-:- ~~~'j ",;'," - 9 - to give service to a client and does not report to her office at the start or the end of the day that has it started and ended her day at her designated office regardless of the Employer's requirements to service its clients. That is not consistent with a reasonable interpretation of the purpose for which a transportation allowance is applied. There is no dispute that such an allowance is not paid for commuting from an employee's place of residence to her office. When however, an employee is required to proceed to deal with a client of her Employer outside of that parameter, we find such travel is for the benefit of the Employer and falls within the term of "business purposes" for which the employee is entitled to compensation under Article 16.01 of this Agreement. That conclusion is consistent with the Employer's practice prior to October 6, 1992. We find that the change to the policy implemented by the Employer after that date was improper as it was inconsistent with the requirements for payment of the travel allowance provided by Article 16.01. Having regard to the foregoing decision, it is not necessary for the Board to deal with the estoppel issue raised by the Association. We find that the Employer's practice as it was with regard to the payment of Transportation Allowance when the collective agreement was entered into was consistent with the terms Article 16.01 and its change of policy in October 1992 contravened those terms by failing to recognize the nature of the travel it - 10 - expected of the employees to carry out 'its normal business functions and responsibilities. It is our award therefore that the grievance is allowed. The Board will retain jurisdiction as to compensation and implementation of this award. DATED AT OAKVILLE, THIS 22ND DAY OFNOVEMB~R, 1994. \ A ~' II - ' , HOWARD is.v 0 ,CHAIRMAN' ~r := ~ 1.1 q .1.. .r JOE E~T, UNION NOMINEE r' :f ..it.. ~ I'{ ROBERT WHIT~AKER, EMPLOYER,NOMINEE . ~ ;-::.. ' ..::'ft . , ,; ,. ,~:..;. : . .., -:J\:" , . ~., , ~ ~>,: ... ')3 ~,:' 'i;' ':' ". : i- '. r:;, ~_. " ; __::. . . '" ,,'.' '0",' ,'. '.."i-,"".,t,- :; :): <..l /~. :; '_ . . ~ ~ ~ f ',~... . -' . ,-l:it~~;[;~,;, .j: . ..t ,""' :;~:::2r>' DISSENT Robert Whittaker, Employer Nominee Re: The Eastern Ontario Health Unit & The Association of Allied Health Professionals Transportation Policy Grievance I must dissent from the majority decision of the Board in an arbitration award with respect to the above referenced grievance, The provisions of the collective agreement are relatively straight forward on the issue in dispute, Employees are entitled to be compensated for mileage that is incurred while on company business, I am fully in agreement with this principle which is articulated several times in the award. My dissenting opinion flows from that portion of the award that would designate as "business travel" that mileage travelled by employees, from their residences, where they do not first travel to their designated office at either end of the work day, For the majority of the employees of the Health Unit, the practice of the employer in calculating mileage is not an issue, as they regularly report to their home office before beginning the days assignment, and return to the office at the end of the work day, Mileage from the office to the various call locations and back to the office is compensated at the applicable rate per kilometre and is truly "business'travel" as anticipated by the provisions of the collective agreement. - The problem arises with those employees who have chosen to live some distance from their home office. More specifically, employees who live in Ottawa and Montreal. Employees living at these distant locations have been permitted by the employer, in many instances, to report directly to the location of their first client call in the morning and return home at the conclusion of the work day after their fmal client call. The award, as currently drafted, will compensate these employees on what is referred to as a "portal to portal" basis. Such a practice would unfairly favour those employees who have chosen to reside a great distance from their home office as well as require the employer to compensate them for greater mileage thanwould be incurred if they were required to report to their home office before beginning the days assignments, ....,2 .... ". , -2- In the alternative, the employer could require all employees to report to their home office at the beginning and conclusion of the work day, While such a practice would alleviate the problem of compensating employees for mileage which is properly personal rather than business in nature, it would cause some employees to spend significantly more time on the road at either end of the work day which is not necessarily a productive use of time, The practice of the employer with respect to employees who are not required to report to their home offices on a daily basis, however, should not result in the employer having to compensate employees for what in my opinion is properly personal business mileage, As an alternative, for those employees who begin the work day at a clients residence rather than their home office it would be more appropriate to provide compensation for mileage incurred starting at the first client in the morning and ending with the last client in the day where the employee returns directly home, rather than home to home as provided for in the award, In my opinion, I do not believe the award will serve the parties welL I further do not believe that the parties intended, by the language of the collective agreement, to have some employees fmancially advantaged at the employers expense through a practice of accommodation, . Respectively submitted, r~-, \. Robert M. Whittaker Employer Nominee RMW:scm STATEMENT OF ACCOUNT ARBSEV LIMITED P.O. BOX 249. 226 LAKESHORE ROAD EAST, OAKVILLE. ON L6,J 5A2 IN THE MATTER OF: TWO ARBITRATIONS BETWEEN: EASTERN ONTARIO HEALTH UNIT AND: ASSOCIATION OF ALLIED HEALTH PROFESSIONALS; ONTARIO AND IN THE MATTER OF THE GRIEVANCE OF PIERETTE GUILBAULT AND ASSOCIATION POLICY GRIEVANCE FOR THE SERVICES OF: HOWARD D. BROWN TO hearing room expense $316.75 TO travel and hearing expenses 851. 00 $1167.75 GST: (7%) 81.75 TO arrangements for and attendance at hearings at Ottawa on June 8, 1994, to consideration and ' preparation of two awards, to receipt and consideration of addendum and dissent and completion with board members, to correspondence, telephone and other expenses in total: GST: (7%) TOTAL FEES AMOUNT 10 BE PAID BY EACH THE EMPLOYER AND THE UNION $4400.00 308.00 $~6~~LO~EES & EXPENSES:$5,957.5S $2,978.7: ACCOUNT NO. 16-85 GST # RlO0245844 November 22, 1994 Please make cheque payable to ARBSEV LIMITED Please indude a=unt number with payment to ensure proper credit