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HomeMy WebLinkAbout1992-2249.Gabriel et al.93-11-10 -" ;. i'" ',,-,- /'~ EMPLOYES DE LA COURONNE . ONTARIO ., CROWN EMPLOYEES DE L'ON TA RIO 1111 GRIEVANCE COMMISSION DE , , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TELEPHONEITI!LI!PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 1 2249/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gabriel et al) Grievor - and - The Crown in Right of ontario (Ministry of Revenue) Employer BEFORE H. Finley Vice-Chairperson E. Seymour Member J. Miles Member FOR THE E. Mitchell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE C Peterson EMPLOYER Counsel Filion, Wakley & Thorup Barristers & solicitors HEARING May 14, 1993 , 1< ....,~...--."'"I":"'"-'-. --';:-.'-' ..... -.... .....;~....T"'-"!;"".,.": -~;- '. ,v GaB 2'249/92 D E C I S I o N ) The issue before this Board is whether the time spent by Tax Auditors travelling to their various work sites outside of regular working hours is work time or travel time The Tax Auditors are Financial Officers with the Ministry of Finance! and are assigned to Schedule A The Union contends that this travel should be treated as travel time and that Article 23 should apply, while the Employer takes the position that it should be treated as wor,k and that therefore, Article 23 would not apply The parties chose to call no evidence and following opening statements and the filing of documents, Counsel, Ms Elizabeth Mitchell for the Union, and Mr Carl Peterson for the Employer, proceeded directly to argument The Board was referred to the following Grievance Settlement Board Decision~ representing the Board Jurisprudence with respect to the issue of the characterization of time spent travelling out of regular working hours The Board considered them during its deliberations and they are cited and summarized below to provide an overview of the precedents OPSEU (Marcotte) and The Ministry of Correctional Services, GSB n 54/78, April 27, 1978, Adams [The Grievor, a Correctional Officer who, with a colleague was assigned the responsibility of transferring prisoners to another institution and alone, of driving the vehicle for which he completed { the log and turned over the keys on return, was found, by the Board, to be workiriq during the time he spent returning without the responsibility of inmates, outside of regular working hours ] OPSEU (Cowie) and The Ministry of Correctional Services, GSB # 99/78, May 3, 1979, Adams [The Grievor, a Correctional Officer was assigned to '. /l pick up an inmate and return him to the institution and to do this he initially travelled, with the institution driver, to the pick-up location outside of regular working hours and during this time had no escort duties or responsibility for the Ministry vehicle The Board determined that during this per iod of time the Grievor was responsibility free and could not be said to be workinq ] OPSEU (Buchanan) and The Ministry of Correctional Services. GSB # 34/78, October 29, 1980, Kennedy [ 'I'he Board found that the Grievor, a Correctional Officer in uniform an<;l with restraints, and with some minor responsibilities for the vehicle, who travelled as a passenger, outside of regular working hours to pick up and escort an inmate back to the institution, a task he would perform frequently during regular working hours, was not workinq during the time spent travelling when he was not acting as escort ] i OPSEU (Anwyll) and The Ministry of) Government Services, GSB # 406/83, JaI:1uary 19, 1984, Samuels ) [The Grievor, a Fire Alarm Mechanic and membe.r of a team of two, who was a passenger in the Ministry vehicle which contained all the parts and equipment to I carry out his job, was found to be workinq on an out- of-work hours return trip ] OPSEU (Fawcett) and The Ministry of Transoortation and Commu~ications GSB #275/82, Ma y I, 1984, Draper [The Grievor, a Quality Assurance Inspector, with normal hours of work set at 36 25 hours weekly and assigned to Schedule 6 and therefore had no right to overt ime, was found to be entitled to the travel credits set out in Article 23, "for time spent daily during his normal work week in travelling outside the greater of 7 1/4 hours or the number of hours actually spent in performing his job duties, when authorized by the ministry "l l) OPSEU (Pileggi) and The Ministry of Transportation and Communications, GSB # 992/86, July 5, 1988, Forbes- Roberts 1 2 i , , j ; p....e. - fl [ 'l'he Grievor, a Senior Construction Technician, drove each work day to an area of construction sites which was 1 5 hours from his home in his own vehicle without any Ministry equipment and during his work day travelled between these sites It was found that travel was an inherent part of his job and that the time he spent travelling to and from the work area outside of normal working hours was work ] ( OPSEU (Eaton) and The Ministry of Transoortation and Communications GSB # 646/83, July 12, 1984, Samuels [The Grievor's out-qf-work-hours return travel from an Occupational Health and Safety Committee Meeting was deemed to be travel time] OPSEU (Clements) and The Ministry of Transoortation and Communications, GSB # 370/84, June 11, 1985, Samuels [The Board concluded that the Grievor, a Party Chief, Soils, who was in charge of a Ministry vehicle for the season, inspecting it daily, and who was responsible for 4 casual employees and all the equipment and clothing necessary for the job was wor k i nq when he was undertaking necessary out-of-hours travel from the work-site to the motel ] OPSEU (Stahl) and The Ministry of Health, GSB # 45/87, February 10, 1988, Samuels [The Board found that the time a Social Worker spent out of normal working hours driving a Ministry vehi~le signed out for the specific assignment to and from authorized community patient visits, was work ] OPSEU (Churchill et all The Ministry of TransDortation GSB # 232/86~ April 22, 1988, Springate [The Grievor, a member of a survey pa r ty, when travelling as a passenger with very minimal responsibilities, in a Ministry vehicle in the care of someone else and containing survey equipment was found to be entitled to be paid at the travel time rate when travelling outside of working hours in a Ministry vehicle] OPSEU (LeBlanc) and The Ministry of Skills Develooment (GSB ,. 2416/86, J_uly 5, 1988, Forbes-Roberts 3 i ___ _..................4'~......_.. ,.....,.. ~ {? [The Board found that, in the case of an Enforcement Officer with the Apprenticeship Branch, there was "no element of work present in th'e gr ievor' s journey" of 4 5 hours on a Sunday to attend a Monday meeting in Toronto The Hoard noted that "Part of his regular duties (i e inspection) involves driving One cannot perform an inspection unless one is at the location This does not, however, mean that every time the grievor gets in his car that he is "working" It concluded that and he was entitled to travel time purusuant to Article 23 ] ~ OPSEU ( Malette) and The Ministrv of. the Environment (GSB # 379/86, July 5, 1988, Forbes Roberts [The Board determined that the Grievor, an Environmental Officer Technician, a Schedule A employee, who' operated a Ministlt"y vehicle dur ing a 125 hour period prior to the commencement of his normal working hours, was workinq during this period ] o P S E U (P i n que eta l) and The M i n i s t r v of the Environment, GSB Its 1355/87,15'65/87,1588-90/87, November 24, 1988, Ratushny [The Board found that in the absence of specific authorization, travel time outside of normal workings hours should not be treated as travellinq time under Article 23 of the Collective Agreement but as hours "built uP" and, therefore subject to "averaging" by virtue of Schedule A", to which the Grievors, Investigators wit~ the Ministry were assigned ] OPSEU (Wriqht) and The Ministrv of Labour. GSB It 0249/89, June 18, 1990, Fisher [The Board found that travel was an inherent part of a Schedule A Environmental Officer's job and that the t i me h e .s pen ton a pub lie car r i e r, f r e e 0 f responsibility for government equipment with the result that he was found to be workinq based on the following rule which the Board formulated for consistency ) The Board determined that the appropr iate rule to establish that out-of-work hours are deemed to be work as opposed to travel time, is that "if either 4 i I I i ,,\.. . I ~, v. .~~. ~ >. I 1/ ( a ) travel during the employee's regular hours of work is an inherent part of. his job, or, (b) there is a continuing responsibility on the part of the employee during the period of travel to care for either Ministry property or other personnel " ] [Emphasis added] OPSEU (Elliot) and the Ministry of Labour. GSB # 1544/89, January 4, 1991, Dissanayake [ 'l'he Board found that the Grievor, a Health and Safety Inspector who travelled to various work sites in his own vehicle with a Ministry pager, briefcase and information as well safety equ ipm~nt, and who as a Schedule 6 employee was ineligible for overtime pay, was workinq when spending time travelling outside normal working hours and had no right to claim additional pay in the form of travel credits ] OPSEU (Wang et aU and The Ministry of Consumer and Commercial Relations, GSB #s 1888-90, 1898, August 7, ) 1991 I [The Board determined that the Elevator Inspectors, Schedule 6 employees, do not have work-related responsibilities during their travel time outside of normal working hours in spit~ of the fact that they I travel a great deal in their job, and this does not differ if their out-of-normal-hours travel is on a bus, in a taxi, or in their own vehicles It concluded that the Grievors were not workinq during this time ] OPSEU (Hadwen et al) and The Ministry of Revenue, GSB #s 284-5/89, 306-11/89, September 26, 1991, Gorsky [The Board ruled that retroactivity for the Grievors who were Field Auditors, Financial Officer 2s with the Ministry of Revenue could only be applied to the normal 20 days prior to the filing of the respective grievances ] OPSEU (Wanq et aU and The Ministry of Consumer and Commercial Relations. GSB #s 1888-90, 1898, May 1, 1992, Samuels 5 , 1 ..,. _..._'~~~"'.- -- -..--- il [The Board determined that the Elevator Inspectors, Schedule 6 employees, were travellinq rather than \ workinq when they were en route to their work sites outside of their normal working hours, reasoning that they do not have an active responsibility to the Employer during that time, did not have to care for Ministry property and were free to do as they wished provided they arrive at the work-site pn time and that this responsibility does, not constitute work J The Board also referred to the--following recent case OPSEU (McColl) and The Ministry of the EnvirOnment, GSB It 1606/91, ***** Finley , , , [T.he Boar.d concluded that th i.s Environmental Officer was workinq when he travelled outside of normal working hours becaUse travel was an inherent pa;r:t of his job and he had continuing responsibility to the Employer during the period of travel both for Ministry property and to respond to and report environmental spills, for which he was equipped with his tools Even though he was a passenger in a vehicle, he had signed the vehicle ,0 u t , checked it, could have acted as driver, was in contact with the Employer by CB radio, and was expected to respond to environmental problems he might meet along the way or have referred to him by his Employer J The four Grievors are employed by the Motor Fuel and Tobacco Tax Branch in Oshawa and all reside in ScC!rborough They are among 30 tax auditors in this branch who travel frequently to the , , premises of various taxpayers to carry out audits to ensure that taxes on gas, propane and tobacco have been properly remitted They travel throughout Ontario and may spend from one day to several weeks in a single location 75% of their time is spent away from their base in Oshawa Travel amounts to 10-20% of the global hours of their job and the clock runs from the time they leave home until they arrive at the location As Schedule A \ employees, they have varied hours of work but their standard wo~k I day is 7 25 hours of direct audit time from 0800 hours to 1615 6 ( - --_.. ---.;........ ,. ,:... ....-.~ "' v hours However, when they are working at the various work sites, they respect the scheduled hours of that company Although the number of hours in any pne week may vary, it is recognized that the weekly average is 36 25 hours over the fiscal year !, Three of the Grievors use their personal automobiles for road travel while one, Mr Ian Wyse, uses a Ministry vehicle which is supplied for his use while on Ministry business and which he retains over a considerable per lod of time The auditors all carry with them a lap-top computer with printer and ! I" including forms and files They do not carry necessary supp les other Ministry property The question of the application of Article 23 is the focus of their grievance This article reads ~s follows ARTICLE 23 - TIME CREDITS WHILE TRAVELLING 23 1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry 23 2 When travel is by public carrier, time will be credited from one (1 ) hour before the scheduled time of departure of the carrier until one (1 ) hour after the actual arrival of the carrier at the destination 23 3 When travel is by automobil~ and the employee travels directly from his home \ place of or e.m pI 0 ym e nt, time will be credited from the assigned hour of departure until he reaches his destination and from the assigned hours of 'departure from the destination until he reaches his home or place of employment 23 4 When sleeping accommodation is provided, the hours between eleven (11 00) P m and the regular starting time of the employee shall not be credited 23 5 When an employee is required to travel on his regular day off or a holiday listed in Article 48 ()Hol idays) , he shall be credited with a minimum of four ( 4 ) hours 7 , 1 1 r-._.. -_,,~, -.....~... ~ .....,.'. .,.,...-'\' .-'.;'1.0','. O:'......1I'",-:.~.; ,~....~ ,- -,. r ,;,:" "1""'- ,r -- --- - v 23 6 All travelling time shall be paid at the employee's b,a sic hourly rate or, where mutually agreed by compens~ting leave Article 23 has not a 1 ways been applied to these Tax Auditors Its application to them began in February/March, 1989, and during the time it applled, the Tax Auditors recorded their travel separately and then exercised their rights under Article 23 6, supra, the option of compensation or lieu time being , arranged with the appropriate supervisor From 1989 to 1992, the Employer agreed that the time spent travelling from home to the taxpayer's premises and back were travel hours and that Article 23 applied However, the practice of toe Employer changed in July, 1992 The memoranda below set out the revised practice July 3, 1992 MEMORANDUM TO All Field Audit and Inspection Staff FROM \ Richard Gruchala Director St}BJECT Travel Time/Work Time - Schedule "A" Staff The Ministry has been reviewing the travel requirements \ of the field audit and inspection staff who are presently under the provisions of Schedu:J,.e "A" of the Collective Agreement This review was undertaken in light of a number of Grievance Settlement Board decisions, wherein the issue of the time spent travelling should be treated as work time where travel I is deemed to be an inherent part of an employee's duties or where an employee has a continuing responsibility for Ministry property, (eg , vehicle, equipment) or personnel (eg , co-workers) As a result, effective August 1, 1992, the time spent travelling by field audit and inspection staff in the Motor Fuels and Tobacco Tax Branch, will be considered to be an inherent part of their duties and treated as work time 8 -.- -_. - --- .--- ._--~-- ~ / I All time authorized to be applied to the staff's duties are [sic]to be incorporated- into averaging of hours as outlined in Schedule "A" to the Collective Agreement The, "averaging of hours worked" as outlined in Schedule "A" I to the Collect i ve Agreement provides for staff to work irregular hours, as the si tuationrequires, and recognizes an average weekly requirement of 36 1/4 hrs averaged over a one year fiscal period Whenever the employee's buildup of hours become-s excessive, he/she may be required to take time off on an hour-for-hour basis, in order to bring the hours accumulation into line with the hours requirement for the averaging period Should this situation occur, the staff will be given reasonable notice of the requirement to take such time off The a p p 1. i cat ion of Article 23 qf t'he Collective Agreement will no longer be applicable I wish to point out that the above will be applied consistently across the taxing branches in the Tax Revenue and Grants Program July 30, 1992 I MEMORANDUM TOI All Audit Staff FROM L C Sheehan Senior Supervisor Audit j SUBJECT TRAVEL TIME/WORK TIME I ~ SCHEDULE "A" STAFF 1 I I :j Further to Mr Gruchala's letter of July 3, 1992, on the above issue; Sabah Thomas and I had a meeting with ., Corporations Tax and Retail Sales Tax representatives to ensure that we were as uniform as possible in our applicat~on of the new policy The following guidelines will apply effective August 1, 1992 1 Audit staff are expected to spend 7 1/4 hours per day direct audit time at the taxpayer's premises j 2 On the weekly time sheets (AU-GOG), there is no u ~1 requirement to show travel time separately, since ej a 11 time is now classified as work time I j 9 i ! --- -. -----_.._,.~ ._.~.. .~"r -......':".,":;...~~~.. .,.-...- ..,' ~ 'T. , ...... ~... ~ " -- . -,/ 3 If there is a requirement to work excess hours, especially on out of town trips, it can be done with your supervisor's approval I f your supervisor is not available you may work the hours and justify them after the fact 4 You may aCfumulate up to a maximum of two weeks in excess hours 5 Time off in lieu will be taken with your supervisor's approval subject to work schedules All excess time accumulated must be taken by March 31, of each year 6 Subject to work schedules and with your supervisor's concurrence, excess time accumulated may be taken off on a weekly basis ( I "- If there are any other issues I have not covered, please let me know cc;: S S Thomas As of August 1, 1992 Article 23 no longer applied Where travel and direct audit work ( 7 25 hours per day) were previously recorded separately, they are now recorded as a single figure Further, a ceiling has been introduced It is the Union's position, as put forward by Counsel, that \ the Employer's practice as outlined in the memoranda is incorrect and this has resulted from a mistaken interpretation of the Grievance Settlement Board decisions The Employer was correct, the Union maintains, in its interpretation in 1989 when it extended travel credits to the Tax Auditors and applied Article ( 23 Counsel for the Employer explained that the Employer changed its pract,ice in response to the Wriqht Decision, supra Mr Peterson indicated as well, that Schedule A employees who work in excess of 1885 hours in the period of one year are entitled to overtime at time and a half However, it is the Employer which has the option of paying or applying lieu time and its decision 10 / \ . .J! would depend primarily on the demands of work The excess of lieu time at the end of the fiscal year must be treated as overtime, and the Ministry tr ies to put procedures in place to minimize these I Counsel for the Union submitted that the Tax Auditors must travel to a place of work usually, outside of normal working hours and remain there There is only one Grievor who does not travel in his own vehicle and in his case, it is not a question of turning the vehicle over to someone, rather, he has exclusive work-day use of a Ministry vehicle During the time s peryt travelling, they do not have a continuing responsibility to their Employer other than keeping the equipment which they take home, secure Something more is required to make this time constitute work time under the Grievartce Settlement Board parameters If simply being in possession of a Ministry computer and/or a briefcase creates ttle responsibility, then the Grievors and many others, would, Union Counssel submitted, be working 24 hours a day The Ministry cannot, Ms Mitchell submits, unilaterally deem travel to be an inherent part of a job, such a determination must be objective And, she argues, no rationale under the Grievance Settlement Board decisions warrants a change to the practice which was in place prior to July, 1992 Further, Counsel for the Union submitted that the Employer is; estopped from changing its policy until the next set of I negot iat ions She notes that the practice began in 1989; the \ Wriqht decision was made in 1990; the Collective Agreement for January 1992 - 1993 was signed in March, 1992, and the change took place in August, 1992 The Employer submitted that should the Board determine that the Tax Auditors' travel amounts to work, then at I a minimum, the Ministry should maintain its former practice until the next round of bargai~ing 11 ) -- - ), The Grievance Settlement Board jurisprudence has arrived at two criteria to be used in determining whether time spent travelling outside normal working hours is work These are ( 1 ) Travel during the employee's regular hours of work must be an inherent part of his or her job, and/or (2) There must be a continuing responsibility on the part of the employee dur ing the period of travel to care for either Ministry property or personnel This Board accepts the conclusion in the Wriqht Decision, that only one of these criteria need be satisfied for the time spent to be considered work IS TRAVEL AN INHERENT PART OF THE TAX AUDITOR'S JOB? This Board has concluded that it is not "Travel is not "work" merely because the employee in question does a lot of travelling " (Wanq et aL August 7, 1991), supra In arriving at its conclusion, the Board considered the following with respect to the partic~lar situation under review ( (a) The audit function itself (-7 25 hours per aay) does not involve driving or travel ., (b) The Tax Auditors travel to thei'r assigned work-site and ) stay there for their normal working day (7 25 hours) (c) The Auditors do not travel to numerous work-sites during the normal working day (d) During the time spent travelling they do not remain in the potential contact of the Employer either by a communication system or by periodic reporting (e) They have no on-going responsibility to the Employer during the time they are driving to the work-site, such as the Environmental Officer (McColl, suora) who would be required to respond to spills if he carne upon one or was contacted by his Employer 12 , ____ - _0_.. . ,_ .,.,_..... _ .. . ._.~' ~"__ , '," w _... ~ --:""\ ....-.....~--.""I"';~ .....-..~, -'n.-.....~ -- -_. . ~ /' - IS THE EMPLOYEE RESPONSIBLE FOR MINISTRY PROPE~TY DURING THE TIME SPENT TRAVELLING OUTSIDE NORMAL WORKING HOURS ? The Tax Auditors carry a lap-top computer with printer, a briefcase and forms and files - all Ministry property The Employer submits that the computer is sophisticated and valuable equipment and therefore there is a responsibility to the Employer during this time The Union takes the position that the Auditors carry this equipment with them at most times and usually have it in their residences overnight and that it, would be unreasonable to conclude that they are working 24 hours a day With respect to the vehicles, it is the finding of the _. Board that the use of the Ministry vehicle which is provided to Mr Wyse, is analogous to a company car situation such as that referred to in Marcotte, supra, and therefore is not in the same category as the vehicles referred to in prior decisions which have found that responsibility for a Ministry vehicle consituted work Therefore, Mr Wyse's situation will be vie we d no differently from that of the other Grievors who use their own vehicles for travel If the Tax Auditors are scheduled to go directly to the premises of a company, on the following day, they will carry this property with them from their location of the previous day to their residence or temporary quarters They are then responsible ) for this equipment 24 hours a day, at whatever location they happen to be working, when they are sleeping, when it is in their car or wi th them i-n another travel setting If the property is sighed out to them for a year, they are then responsible for it for that period This is in contrast to an employee who signs out equipment such as a vehicle, ! and who must return it following the specific, assigned duty as in Stahl, supra Further, during the drive to the work location, there is no likelihood that, as in the i of the Environmental Officer in McColl, the case supra, 13 - --- . c/. . Tax Auditor would be required to respond to an audit situation and use the Government property of which he or she is in . \ possesslon The evaluation of responsibility to the Employer for Ministry property during time spent travelling must take into ! account the level of responsibility, and assignment of the res p 0 n sib i 1 i t'y It is t.he linking of the possession of the property to the assignment of responsibility which must be , evaluated to determine whether or not, and if so, to what degree, the possession of Ministry property creates a responsibility in the employee to the Employer which in its turn constitutes work The signing out of a Ministry vehicle, the driving of such a vehicle and the supervision of personnel have all been found to create a responsibility to the Employer and consequently to be work The ongoing possession and use of a Ministry vehicle have been distinguished from the time-l imi ted use of a vehicle for specifically assigned duties The value of the property has not been a determining factor The computers are, in the opinion of this Board, in this situation, analogous to the "co~pany car" situation They do not create a responsibility which can be characterized as work Result The Board has determined that travel during the Tax Auditors' regular hours of work is not an inhe.rent part of their , job It has also concluded that the possession of a lap-top computer, files and briefcase during travel time outside of regular working hours does not create the Hwe 1 of responsibility which would constitute a continuing responsibility to care for Ministry property or personnel in the parameters set by the current Grievance Settlement Board jurisprudence Therefore, the time spent in travel outside working hours must be treated as travrel time, not work time, and Article 23 applies 14 - --.- ..--....'";....~ -- , --. . ,.-= .- -~---_..,~- - ~ - .- -- -- -- -, -- ----- --. -- --.-- -- ,. ~ fI' The Board is not persuaded that tp.e changes required as a result of the above finding should be applied retroactively, nor that the current practice should continue until the expiry of the current Collective Agreement It has concluded that the out-='of- hours travel should be treated as travel time commencing with travel on and after December 1, 1993 The Board will remain ( seised of this matter in the event that the parties have difficulties in implementing its decision this 10th day of November, 1993. --'-- ~c!l: E Seymour, Member 1~-~ Milesl, Member 15 - ~._~+"'-~-_.._~_.- ..' ~.