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Home My WebLink About1987-2116.Kosnaskie.88-07-05EMPLOY.3 DE LA COURONNE oE“ONTAR,O CQMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS Between : Before: IN THE MATTER OF AR ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIBVANCE SETTLEMENT BOARD For the Grievor: OPSEU (Kosnaskle) - and - The Crown in Right of Ontario (Ministry of Revenue) D.H. Kates Vice-Chairman G.A. Nabi Member P.D. Camp Member I. Roland Counsel Gowling & Henderson Barristers & Solicitors For 'the Emolover: D. Daniels Staff Relations Officer Ministry of Revenue Hearino(sk: March 24. 1900 Grievor Employer . . ; ‘, -. Decision The grievor cltiiims that the employer improperly denied his claim for a travt-rl allowance contrary to Article 22.1 in using his automobile Lo travel to and from his headquarters at Pembroke, Ontario to have lunch, The parties are joined on the issue in dispult~ ad have agreed that. Lhe grievance turns on the Ilr(.erl"etaLi.ott ur Lhe ph~'ase in Artj.cle 22 .l pertaining to whether a,, 'I. . .e~~~pluyee ir I-equired to use his own automobile on the Employer's busiJress" . The facts pwxi pi tal..ir~g this grievance are straightforward ad Ilorl-coll~L~uv~~si;11. The grievor is employed as a Proper~ty Assesnur wl1ose I~c:ucl~lua,r.ters are i.11 Pemb.~oke, Ontario. While d~ischavg!iIlg his work fonctiolls the grievor is required at lunch time Lo use his owl, autou~obile to travel to and from his . headquarters at Peulbroke. While travelling to and from headc~uarI.ers Lu ~10 "field wo~:k" at the start and end of his tour of duty the g:,.j.evoll is reimbursed Tar the use of his automobile Ian accoida~lce wj 1.11 A~.Licle 22.1 of the collective agreement. In 0Lher worcls, there is no dispute that in those circumstapces he is -equired. LU use llis auLwnub.ile on the employer's business and he is paid a travel allowance izr ac~ordu~rce with .the applicable ra.te . Article 22.1~ veads as follows: 22.1 If a,r elupl~,yee is required Lo use his own automobile on the Etnploy~er's busi~~~ess the fol.lowic~g rates shall be paid effecLive April 1, 1985: Iiilomct~es Dl:i.v,,u sou Llle~rll 011 Lario Northern Ontario G - 4 ,000 km 27 . k/km 28 .Gc/km 3,GGl-10,700 kill 22. Oc/km 22.5c/km 10,701-24,000 ICI,, 1.8.Oc,‘hm 18.5c/km ovet- 24, 000 kill 1 5 . 5 c ,’ k I” lG.Oc/km ._~ ..,.... .,.... ~.~.~ :\ ‘\ -2- It is also common ground that tl ie grievor is entitled to a lunch break of for,ty-~five minutes. In circumstances where his work duties require the grievor to use his automobile to travel twenty-four (24) kilometres or more from his headquarters at Pembroke, he is entitled to claim a meal allowance pursuant to Article 17 of the collective agreement. We were advised that at all malerial ti~mes the meal allowance was set at $7.00. Article 17 .2.1 reads as follows: 17.2.1 Cost; of meals may be allowed only: 17.2.2 I.f during a normal meal period the employee is travelling on government business other than: (a) on patrol duties, excep~t as provided under subsection 17.2.3, or (b) within twenty-four (24) kilometres of his assigned headquarters, "1 (c) within the metropolitan area in which he is normally working. IL follows rronl the foregoing that where the grievor is required to travel w~ithin twenty-four kilometres of his headquarters he txceives no meal allowance. In the particular circumstances leading to the grievor's dispute he was required to use his automobile to travel to the Town of Pettawawa to perform "field duties". And he was paid the appropriate mileage allowance to and from his work site. Nonetheless, because those du.ties were performed within twenty-Pour kilometres of his headquarters at Pembroke he could claim no meal allowance. The grievor. was reluctant to take a prepared lunch with him because of the undesirable environment in which he foujrrl himsel~f for purposes "T eating and enjoying -3- his lunch period. Accordingly, the grievor resolved to drive his automobile from l%t~tawawa.tu his headquarters at Pembroke for lunch. Then, after lunch he returned to Pet~tawawa to complete his day's work . At headquarters .Lhe employer maintains an appropriate lunchroom facility~ equipped with a refrigerator to conserve a prepared lunch. The g~rievor submitted a mileage allowance for the trip to alid Prom headquarters for lunch at the appropriate l-a Le. Tbnt claim was rejected by the employer., The ~trade union's argument in support of the grievor's travel claim is premised on our accepting .the notion that the grieve? was rerluired to use his automobile on the employer's business in urder to have lunch at headquarters in Pembroke in the circumstances that were described. And in order for that argument to be app~reciated the Board was asked to interpret ArLicle 22.1 i.n the context of Article 17.2.1.2. As hitherto indicated Article 17.2.1.2 restricts the payment of a meal allowance to instances where an employee must travel a distance from headquarters uf twenty-four kilometres or more in order to per~form work-related duties. It Pollowed from that situation that the grievur wht?n required to travel within twen,ty-four kilometres from headquarters to perform work related assignments be is intended to be treated with respect to lunch period benefits no differelllly than an employee who is actually statiorled at headquarters at Pembroke. Aud that employee, it was conceded, IS given a "viable" choice with respect to his or her luoclr period benr:fiLs. The choice extended employees at - 4 - headquarters involves taking advantage either of the employer's lunch room facility UP of a restaurant in Pembroke. Accordingly, by implication of Article 17.2.2 that very same choice that is extelcded employees at headquarters is also intended to constitute a viable choice for the grievor. It is implicit in the application of Article 22.1 so it was argued that. the parties in making that choice viable required the grievor to use his au,tomobile to travel ,Lo and from headquarters to take advantage of the lunch period benefits. Implicit in the trade union's argument is the notion .that in order for the choice to be viable the employer was expected to subsidize or absorb the expense (ie., the mileage allowance) of the grievor's travelling costs to and from headquarters. Or, from a different perspective. it must be assumed, owing to the arbitrary line of the twenty-four kilometre distance Prom headquarters before a' meal allowance becomes opera~tive, that ,the same lunch period benefits that are extended employees situated at headquarters are intended to apply to employees who are required to use their automobiles to travel "within twenty-four kilometres of hendqunrters". As a :result the requirement. for travel that renders the grievor's choice viable must be deemed to occur "on the employer's busioess" for purposes of claiming the approprixte mii.eag!e allowance under Article 22.1 of the oollective ngl-e:emenI.. 111 dealing with the trade union's argument we find no merit in the implicit assumptions tba~t are made to justify charactecizing the grievor's "requirement" to travel in order to . - 5 - have the same lunch period benefits as an employee stationed at headquarters ~to be a requirement .to travel on the employer's business. IudeeJ, we question whether there is imposed any "requirement" at all to travel in order to exercise the same "c,,oice" of lunch peri.oil benefits allegedly extended employees stationed a.t headquarters. Or, at best, the requirement to travel is a requ~iroment that appears to us to represent a self-imposed election arrived at by the grievor in order to give eFPect to his alleged choice. At the heart of the trade union's argument is the assumption that the Ministry agreed to incur the travelling costs as being 011 the employer's business pursuant to' Article 22.1 in order to render the grievor's choice of lunch period benefits "viable". We simply disagree with that assumption. Rather, we are of the opinion that the pal:l;i.es hitherto established "the viability" of the choice when they ag:r~.eed to draw the line where the meal allowance provisions of the collective agreement become operative at twenty--four or more kilometres from headquarters. We were nol; ~told why the line was drawn at twenty-four kilometres. ,Tt may very well have been an imprudent point for purposes of invoh~ing the meal allowance benefit. And, indeed, from the grievor's perspective, that line may have proved impractical or unrcz~~iistic for purposes of taking advantage of the same 1u11ch peri,od benefits extended employees s.tationed at headquarters. NorteLlleleZis, iu our view that is exactly what the parties must be presumed to have considered to constitute the "viabie" i;hoice at4 the only way to correct any alleged . '. i. r. -G- deficiency in t.1lei.r assumptions with rqspect to the practicality of the choice is 4; Lhe bargaining table where a more appropria,t.e line cue be negotiated. We quite agree I;haL the trade union's suggestion that the employee who ~travels within twewty-four kilometres from headquarters is i~~t.ended to share the same lunch period benefits as the employee sLnLioned aL headquarters. But employees stat.ioncd ir~t I~endqunrLers are not subsidised in any manner for Lime spent taking ndvnnLage of the employer's lunch room flrcili~ty and/or of w,joying a meal at a commercial establishment it, the vicini~l;y of Lendquarters. They are not subsidized when eligaged in lunch period activities because they ace on their own time ad are not involved in Lhe employer's business or other work-related act,iviLies. And ) from LhaL j)erspective, we agree with the employer's submissior1s. The choice given the grievor is the same choice extended employees stationed nt headquarters. Like employees at headquarters the grievor while engaged in his lunch break is free to exercise I;hc choice that has been extended to him. To repeat, it is clroi.cr thn.L hns not been imposed unilaterally by the employer but HUS negotiated by both parties to the collecLive agreement. And should Lhe grievor elect to drive his car for a JisLancc: uf twenty-.four kilometres to headquarters to have lunch then 1,~ Lravels on his own time and not while on the employer's 5usilncss. And for that reason we are of the view that the choice, when exercised, was intended to be at his own expense i.r:rrspecLi~ VB of the obvious shortcomings described in - 7 - the trade union's submissions. nor all. the foregoing reasons the grievance is denied. Dated this 5th day wr July; 1388. David H. Rates G.A. Nabi - Iknk~