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HomeMy WebLinkAbout1998-0249.Herskovits.00-07-20 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L '()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 249/98 OPSEU # 98B219 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Emplovees Uruon (HerskovItS) GIievor - and - The Crown m RIght of Ontano (Mimstn of Fmance) Employer BEFORE RandI H. Abramsk" Vice ChaIT FOR THE Peggy Srmth GRIEVOR Counsel Ehot, Srmth Bamsters & SohcItors FOR THE Fateh Sahm EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING March 6, 2000 Ma, 15 2000 AWARD The gnevor Leo HerskovIts, IS a Semor Tax AudItor wIth the Mimstry of Finance At Issue IS whether he IS entItled to claim travel tIme and expenses from the taxpayer's 10catlOn to hIS reSIdence at the conclUSIOn of the work day rather than from the taxpayer's 10catlOn to the office FACTS The partIes proceeded by way of an agreed statement of facts They are as follows 1 The Gnevor Leo HerskovIts ("Gnevor") IS a Semor Tax AudItor Tax AudItor 5 workmg wIth the CorporatlOns Tax Branch of the Mimstry of Fmance at the North York RegIOnal Tax Office 2 The Gnevor commenced hIS employment WIth the OPS m 1985 3 The AudItorS do most of theIr work away from the office, at the taxpayer's place of busmess ("audIt locatIOn") 4 AudItorS are aSSIgned audIt files from the office or theIr reSIdence as mdIcated by the OngmatIOn of FIeld ViSItS mformatIOn on the FIeld ASSIgnment Sheet. Travel expenses are paid based on the FIeld ASSIgnment Sheet. 5 After the Hayford decIslOn, a polIcy was mstItuted requmng AudItor'S (who were aSSIgned files from the office) to report to the North York office pnor to and after workmg at theIr audIt locatIOn. The memo, dated February 6 1989 regardmg "Payment of Travel Time and Kllometnc Rates" states, m pertment part, as follows Further to my memorandum of January 11 1989 the followmg scenanos are mtended to serve as gUIdelInes for the admmIstratIOn of kllometre payment and tIme accumulatlOn as a result of the Hayford deCISIOn. Emplovee Usmg Personal Car 2 1 Employee travels from home to headquarters, remaInS In the office all day and returns home EntItlement No kIlometre payment or tIme accumulatlOn. 2 Employee IS authonzed to travel from home dIrectly to a workplace other than the headquarters and to return home dIrectly EntItlement Full kIlometre payment and full tIme accumulatIOn. 3 Employee travels from home to the headquarters, IS reqUIred to proceed to a workplace other than headquarters, IS later reqUIred to return to the headquarters, and then travels home EntItlement KIlometre payment and tIme accumulatIOn from the headquarters to the workplace and back to the headquarters 4 Employee travels from home to headquarters, IS reqUIred to proceed to a workplace other than the headquarters, and IS authonzed to return home dIrectly EntItlement KIlometre payment and tIme accumulatIOn from the headquarters to the workplace and back to home 6 If and when he IS scheduled to work In downtown Toronto the Gnevor travels approxImately 45 mInutes to the audIt locatIOn (from the North York office) and reqUIres one hour to travel back to the office at the end of the day 7 On of about October 20 1997 effectIve November 12, 1997 the DIrector of the North York ReglOnal Tax Office Issued a memorandum mstructmg the employees that the new office hours were to be from 8 a.m. to 5 p.m. It IS the Employer's pOSItIOn that he office hours were changed for valId busmess reasons The memo In pertment part, states as follows To Improve secunty and ensure conSIstency wIthm the RegIOnal Tax Office, North York 10catlOn, the office hours that staff wIll be allowed access to the 3rd floor at 5 Park Home Avenue, North York are as follows Monday to Fndays - 800 a.m to 5 00 pm. (excludIng holIdays) ThIS change wIll be effectIve November 12, 1997 3 Should staff reqUIre access outsIde these tImes they should consult wIth theIr Group Manager or a manager on duty The alarm system wIll be armed outSIde these set hours 8 Because of the change m office hours the Gnevor began to claim travel expenses from office to taxpayer and return to hIS resIdence mstead of claImmg return back to the office 9 It IS the Mimstry's polIcy that travel IS to be restncted to wIthm workmg hours However an AudItor WIth management's concurrence, can elect to receIve compensatmg tIme for travel tIme A memo dated November 30 1993 to "All field AudIt Staff' regardmg "Travel Time/W ork Time" stated m pertment part, as follows As a result of gnevances filed by field audItors m the MFTT Branch, the Gnevance Settlement Board (GSB) has recently released an award on the Issue of whether tIme spent travellIng to audIt SItes outSIde workmg hours IS work tIme or travel tIme In essence, the GSB deCIded that tIme spent travellIng should be treated as travel tIme under ArtIcle 23 of the CollectIve Agreement, and not as work tIme, as travel IS not deemed to be an mherent part of a tax audItor's Job Pendmg a reVIew of the ImplIcatlOns of the GSB's deCISIOn and, gIven current fiscal constramts, It has been deCIded that all travel wIll be restncted to wIthm workmg hours effectIve December 1 1993 However should any mdIvIdual employee elect to receIve compensatmg tIme for travel tIme, and management concurs (per ArtIcle 23 6) the above-noted restnctlOn need not apply lOOn of about December 16 1997 the Gnevor filed a Statement of TravellIng Expenses for the penod December 1 1997 to December 15 1997 wherem the Gnevor claimed travel expenses from the audIt locatIOn to hIS home at the conclUSIOn of the work day 11 The total expense was for $23639 whIch covered travel claims for SIX separate occaSIOns 12 On January 23 1998 the Gnevor filed a gnevance 13 On or about January 23 1998 the Employer reJected the Gnevor's claim on the baSIS that the travel claim as filed by the Gnevor IS contrary to the polIcy mstItuted per paragraph 5 above The Employer's polIcy proVIdes that when audIt files are assIgned from the office all travel claims are to be made and wIll be reImbursed to and from the office and not the employee's reSIdence 4 14 The Gnevor re-filed hIS travel claim, thIS tIme claImmg reImbursement from the taxpayer's place of busmess to the North York RegIOnal Office 15 The Employer reImbursed the employee based on the re-filed claim 16 The Gnevor claims the dIfference between the ongmal claim to hIS resIdence and the re-filed claim ARGUMENTS OF THE PARTIES The UnIon asserts that the gnevance reqUIres the board to reconcIle a number of pnor GSB deCISIOns concernmg travel tIme It contends that under a proper readmg of the cases, the gnevor IS entItled to be paid for travel tIme to hIS home at the end of the work day The UnIon submIts that m OPSEU (Gabriel et al.) and MinistlY of Revenue (1993) GSB No 2249/92 (Fmley), the board determmed that travel was not an mherent part of a tax audItor's Job and that travel outSIde of work hours IS "travel tIme" not work tIme Accordmgly ArtIcle 23 (now ArtIcle 14) would apply ArtIcle 14 m relevant part, states as follows ARTICLE 14 - TIME CREDITS WHILE TRA VELLING 14 1 Employees shall be credIted WIth all tIme spent m travellIng outSIde of workmg hours when authonzed by the mInIstry The UnIon further relIes on the fact that the gnevor's "work tIme" as an audItor IS 7V4 per hours day 36V4 hours per week and the fact that the gnevor IS a Schedule A employee Because of the nature of an audItor's Job an audItor regularly works excess hours (over 7V4 per day and 36V4 per week) dunng certam pen ods of the year and the hours of work for thIS group of employees IS averaged pursuant to Schedule A of the 5 collectIve agreement. Under Schedule A, as mterpreted m OPSEU (Union Grievance) and Ministry of Revenue (1993), GSB No 802/91 et al (Watters), an employee IS allowed to self-schedule up to a maXImum of 1411z excess hours wIthout pnor authonzatlOn. In the Umon's submIsSIOn, the Employer cannot, under these cases, reqUIre the gnevor to travel back to the office dunng "work tIme" for to do so would result m less than 7V4 hours of audIt tIme per day and elImmates the gnevor's nght to schedule hIS hours as reqUIred to fimsh the Job It also m ItS VIew Improperly treats travel tIme as "work tIme" contrary to OPSEU (Gabriel et al.) supra The Umon submIts that gIven the fact that the office now closes at 5 00 p.m. the gnevor would have to leave the audIt locatIOn at 400 p.m. to be able to return to the office In lIght of the gnevor's stIpulated travel tImes (45 mmutes m the mornmg to the audIt 10catlOn and one hour return to the office), plus the reqUIred half hour for lunch, that leaves msufficIent tIme for the gnevor to perform hIS audIt work. The Umon asserts that because travel IS not an mherent part of the Job the gnevor IS entItled to be paid for travel tIme at the end of the work day The result, It claims, IS a return to the "lesser than" pnncIple m OPSEU (Hayford) and Ministry of Correctional Services (1988) GSB No 1398/87 (Kates) because the gnevor IS bemg paid only for the travel and kllometres from the audIt 10catlOn to a closed office, rather than to hIS reSIdence 6 The Employer asserts that Its practIce of reqUlnng the gnevor to return to the office dunng the regular work day IS consIstent WIth the collectIve agreement and the GSB case law Accordmgly It contends that ItS actIOns dId not VIOlate the collectIve agreement and the gnevance should be dIsmIssed. The Employer submIts that the collectIve agreement defines "travel tIme" under ArtIcle 14 1 as "tIme spent m travellIng outSIde of workmg hours when authonzed by the mmIstry" It relIes on OPSEU (Downey et al.) and Ministry of Transportation (1990), GSB No 30/89 (Samuels) m whIch the board determmed that the employer could reqUIre employees to travel dunng workmg hours In thIS case, It argues, the gnevor's travel was not "outsIde of workmg hours" nor was It "authonzed by the mInIstry " The Employer further contends that there IS nothmg m OPSEU (Gabriel et al.) supra, whIch changes that result smce what was at Issue there was travel outSIde of the employees' regular work hours Nor It argues, does ItS decIslOn rem state the "lesser than" pnncIple reJected m Re OPSEU f/ayford) The Employer also relIes on Re OPSEU (Botts Prossel) and Ministry of Revenue (1991), GSB No 1525/89 (DIssanayake) for the VIew that the employer may reqUIre employees to leave from and return to the office dunng work tIme DECISION Based upon my reVIew of the facts, the collectIve agreement, the GSB case law and the arguments of the partIes, I conclude that the Employer's reqUIrement that the 7 gnevor travel back to the office dunng work hours - and thus not pay hIm travel tIme from the audIt 10catlOn to hIS home - does not vIOlate the collectIve agreement. The pIvotal Issue IS whether the Employer may reqUIre the gnevor to travel back to the office dunng work tIme In Re OPSEU (Downey et al) and Ministry of Transportation, supra, the board held that the Employer could reqUIre employees to travel for up to one hour dunng workmg hours from 8 a.m. to 5 p.m even though thIS meant they "would be at the Job SIte one hour less each day" (DecIsIOn at p 2) In the past, the employees had been authonzed to travel outsIde of workIng hours and earned travel tIme credIts each day eqUIvalent to all the tIme taken to and from the Job SIte The board dIsmIssed the gnevance, concludIng as follows at pp 3-4 In our VIew the govermng provISIOn IS ArtIcle 23 1 [now ArtIcle 14 1] Travel tIme IS "tIme spent m travellIng outSIde of workIng hours" (emphasIs added) The Mimstry dId not try to balance ItS budget by askIng the gnevors to do somethIng for nothIng. And the Mimstry dId not take away a nght whIch the gnevors had prevIOusly Instead, the Mimstry reduced the workmg tIme at the Job SItes by up to one hour each day but kept the overall "workmg hours" the same as had been prevlOusly In our VIew thIS cost- savmg measure dId not VIOlate the collectIve agreement. The gnevors are stIll reCeIVIng credIt for authonzed tIme spent m travellIng outSIde of workmg hours The Umon, however suggests that Re OPSEU (Gabriel et al.) lImIts thIS nght because It determIned that travel was not an mherent part of a tax audItor's work. In OPSEU (Gabriel et al.) supra the Issue addressed by the board was "whether the tIme spent by Tax AudItorS travellIng to theIr vanous work SItes outSIde of regular workmg hours IS work tIme or travel tIme" (DeCISIOn, p 1) It revIewed the case law and 8 concluded at p 12 that there are "two cntena to be used m determmmg whether tIme spent travellIng outsIde normal workmg hours IS work." These were (1) Travel dunng the employee's regular hours of work must be an mherent part of hIS or her Job andlor (2) There must be a contmumg responsIbIlIty on the part of the employee dunng the penod of travel to care for eIther Mimstry property or personnel The board, based on the facts presented, concluded that travel was not an mherent part of the tax audItor's Job In so rulIng, It relIed on the followmg facts (a) The audIt functIOn Itself (7.25 hours per day) does not mvolve dnvmg or travel (b) The Tax AudItorS travel to theIr assIgned work-SIte and stay there for theIr normal workmg day (7.25 hours) (c) The Tax AudItorS do not travel to numerous work-SItes dunng the normal workmg day (d) Dunng the tIme spent travellIng they do not remam m potentIal contact of the Employer eIther by a commumcatlOn system or by pen OdIC reportmg. (e) They have no on-gomg responsIbIlIty to the Employer dunng the tIme they are dnvmg to the work-SIte The board concluded as follows at p 14 Result The Board has determmed that travel dunng the Tax AudItorS' regular hours of work IS not an mherent part of theIr Job Therefore, the tIme spent m travel outSIde workmg hours must be treated as travel tIme, not work tIme, and ArtIcle 23 applIes It IS pOSSIble, as the Umon suggests, to read Gabriel as establIshmg that the Employer cannot treat travel tIme as "work" tIme or mclude travel tIme m the calculatIOn of hours worked for "averagmg" purposes under Schedule A But m my VIew that IS an 9 unduly broad readmg of Gabriel The Issue m Gabriel was whether tIme spent m travel "outsIde workmg hours" must be treated as travel tIme or work tIme, It dId not address the Issue m thIS case - whether the Employer may reqUIre employees to travel during regular workmg hours Further Gabriel IS factually dIstmgUIshable The audItors there were reqUIred to perform 7 1J4 hours of "audIt functIOn" whIch dId not mclude travel or dnvmg tIme and they were expected to remam at the audIt locatIOn for the full 71J4 hour day In the present case, the gnevor was not expected to work 71J4 hours at the audIt 10catlOn. The SItuatIOn m thIS case IS very SImIlar to Re OPSEU (BottsProssel) and Ministry of Revenue (1991) GSB No 1525/89 (DIssanayake) In that case, the Employer m order to save travel costs, dIrected audItors to report to the office at the start and end of the work day rather than authonze the audItors to travel dIrectly from home Thus, the employees were reqUIred to report to the office at 8 15 a.m pnor to travellIng to the audIt 10catlOn and then return to the office at 4 30 p.m rather than travel dIrectly between theIr reSIdence and the audIt 10catlOn. The tIme from 8 15 a.m. untIl the audIted busmess opened at 9 00 a.m and the tIme from 4 00 when they left the audIt 10catlOn, to 430 pm. was treated as "audIt" tIme for pay purposes, even though no productIve work was accomplIshed. In the two SItuatIOns at Issue there, the audIt locatIOn was a "few blocks" to one kIlometre away from the office The board upheld the employer's deCISIOn, even though "whether authonzatlOn was to travel dIrect from home or to travel from the office depended on whIch was less costly to the employer m the partIcular case" 10 (DeCIslOn p 4-5) The Board determmed at p 19 that "[t]here IS no nght under the collectIve agreement for travel to be authonzed." In ItS vIew the decIsIOn whether or not to authonze travel tIme was a management deCISIOn, and ArtIcle 23 (now ArtIcle 14) applIed only when travel had been authonzed. The board also dIsagreed that the effect of the employer's actlOn was to contmue the "lesser of' pnncIple reJected m Hayford, supra It stated at p 18 The Havford deCISIOn presupposes that the travel for whIch a claim IS made IS authonzed by the Employer It holds that when authonzed travel IS undertaken by an employee, he or she IS entItled to be paid on the baSIS of actual dIstance and tIme Havford does not deal WIth m any way the questIOn of when or how the Employer mayor may not authonze travel A few thmgs are clear from a reVIew of these cases First, under Re OPSEU (Botts Prossel) supra, the Employer has the nght to deCIde whether or not to authonze travel tIme and may do so based on cost consIderatlOns Second, under Re OPSEU (DoYf,ney et al.) supra, the Employer may reqUIre employees to travel dunng the regular work day as a cost-savmgs measure, even though It means less tIme at the work-SIte ThIrd, Re OPSEU (Gabriel et al.) supra, establIshed that travel outside workmg hours must be treated as travel tIme, not work tIme, It dId not address whether the Employer could reqUIre employees to travel during regular workmg hours Although Botts Prosser preceeded the Board's deCISIOn m Gabriel the deCISIOn m Gabriel does not change the result. Gabriel does not state that an audItor's work day must mclude 7V4 hours of pure audIt tIme or that It cannot mclude travel tIme If the Employer chooses to have employees engage m less actual audIt tIme dunng work hours, 11 that IS a chOIce It may make and the wIsdom of that IS not for the GSB to decIde In Botts. Prosser the employees were reqUIred to travel to the audIt 10catlOn from the office and return to the office even though It meant less actual "audIt" tIme In fact, the actual audIt tIme was from 9 00 a.m. to 4 00 p.m. presumably less a half hour lunch, for a total of 6 1Iz hours of audIt tIme per day Just as m Botts. Prosser the tIme It takes for the gnevor to travel from the office to the audIt locatIOn and return, IS treated as "audIt" tIme, even though no productIve audIt work has been done Although the gnevor's travel tIme IS sIgmficantly longer than the travel reqUIred m Botts. Prosser the pnncIple IS the same The fact that the gnevor IS a Schedule A employee wIth the nght to self-authonze addItIOnal hours to a maXImum of 1411z hours also does not change the result. There IS nothmg m Schedule A whIch lImIts the Employer's nght to reqUIre employees to travel dunng work hours The Employer may stIll reqUIre travel tIme as part of the work day the travel tIme would be mcluded m the total number of hours for averagmg purposes Finally m my VIew the closure of the office at 5 00 P m. IS not relevant. It IS the employee's work day that matters, not the office hours of the bUIldmg. An employee's work hours may be earlIer than the bUIldmg opens, or may extend beyond the bUIldmg's closmg. Nor for the reasons stated by the board m BottsProsser does the employer's actIOn result m a return to the "lesser than" pnncIple reJected m Hayford, supra As the board stated m Botts Prosser supra at p 18 "[Havford] holds that when authonzed 12 travel IS undertaken by an employee, he or she IS entItled to be paid on the basIs of actual dIstance and tIme Havford does not deal wIth In any way the questIOn of when or how the Employer mayor may not authonze travel" In thIS case, the Employer dId not authonze the gnevor to travel outSIde of the work day nor from the audIt locatIOn to hIS reSIdence It reqUIred the gnevor to travel back to the office dunng work hours Its decIsIOn to do so does not remstate the "lesser than" approach In Hayford and does not vIOlate the collectIve agreement. CONCLUSION For the foregoIng reasons, I conclude that the Employer properly reqUIred the gnevor to travel back to the office dunng regular work hours, and dId not vlOlate the collectIve agreement when It dId not pay hIm travel tIme from the audIt locatIOn to hIS reSIdence at the end of the work day Accordmgly the gnevance IS dIsmIssed. Dated at Toronto thIS 20th day of July 2000 !-I, 1.10nntE/c RandI H. Abramsky Vice-Chair 13