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HomeMy WebLinkAbout2000-1593.Union Grievance.03-09-24 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1593/00 UNION# 00U128 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown III RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION George RIchards Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Sean Kearney Counsel Management Board Secretanat HEARING September 5 2002 2 DECISION ThIS gnevance anses from a change In polIcy at the Mimstry of the Attorney General concernIng the payment of lunches for Heanng Clerks at the Assessment RevIew Board. The Umon provIded me wIth a Statement of Facts, whIch was unchallenged by the Employer as follows 1 ThIS gnevance concerns a change In polIcy applIed to heanngs clerks who work for the Assessment RevIew Board. 2 At the tIme of thIS gnevance the Board employed approxImately 60 clerks The current number IS approxImately 37 They are unclassIfied and employed on an as reqUIred basIs to manage the documents assocIated wIth Board heanngs 3 Some of the clerks are employed In major cItIes and regularly report to the same work place (Type 1) 4 The maJonty of clerks report dIrectly from theIr homes to heanng locatIOns In the assIgned regIOns (Type 2) The SIze of these regIOns dIffer and at tImes reqUIres clerks to travel In excess of 24 km to a heanng locatIOn. 5 The clerks are governed by the provIsIOns of Art OAD 12.2 2 The language of the agreement has been unchanged SInce the collectIve agreement effectIve February 1 1978 and only slIghtly changed SInce the ongInal collectIve agreement between the partIes 6 The past practIce of the employer In admInIstenng thIS provIsIOn IS reflected In 1 September 1997 Management Board Secretanat PolIcy re Travel Management and General Expenses at pp 20/33 21/33 32/33 2 Aug 6 1998 Assessment RevIew Board Guidelines respecting Member sand Hearing Clerks Travel Expenses. 7 Under these polIcIes, the employer dId not pay a meal allowance to Type 1 clerks but the Type 2 clerks typIcally receIved meal allowance If they were reqUIred to travel from theIr homes to a heanng locatIOn more than 24 km away (see exceptIOns In August 6 1998 GUIdelInes, pl0 Art 40 para 4) 8 In March of 2000 the Employer notIfied all clerks that they would only receIve meal allowances If they traveled to a heanng locatIOn outsIde theIr normal areas or regIOns of responsI bIll ty ThIS polIcy came Into effect May 15 2000 As stated above the language of the collectIve agreement has been unchanged SInce the collectIve agreement effectIve Feb 1 1978 and only slIghtly changed SInce the ongInal collectIve agreement between the partIes (January 1976-January 1977) The earlIest provIsIOn appears In the 1996/97 collectIve agreement and reads as follows ArtIcle 14 - Meal Allowances 14 2 1 Cost of meals may be allowed only 142.2 If dunng a normal meal penod the employee IS travelIng on government busIness other than (a) on patrol dutIes, except as provIded under 14.2 3 or (b) wIthIn fifteen (15) mIles of hIS assIgned headquarters or (c) wIthIn the metropolItan or urban area In whIch he IS normally workIng. 3 The next collectIve agreement was amended by changmg the reference to 15 mIles to 24 kIlometers and by the deletIOn of the words or urban area. There has been no matenal change smce then. The gnevance anses from a change m the admmIstratIOn of the Employer's polIcIes whIch IS best explamed by revIewmg the polIcIes and the applIcatIOn of them throughout the relevant years The Management Board of Cabmet GUIdelInes dated September of 1989 stated as follows Meal Costs Meal costs may be reImbursed when, dunng a usual meal penod, the employee IS outsIde the headquarters area on busmess In most cases, thIS area IS wIthm 24 kIlometres by road of the establIshed headquarters That polIcy was replaced by a more detaIled polIcy entItled MGS PolIcIes and Procedures and dated March 1 1990 That polIcy stated, m part, as follows MEALS A, Employees travelIng on Government busmess are entItled to be reImbursed for meal costs The rates shown m AppendIx 1 are the maXImums whIch can be paid WITHOUT RECEIPTS The rates shown are m CanadIan funds and mclude taxes and gratuItIes B Cost of meals IS NOT allowed when (a) travelIng wIthm the metropolItan area m whIch the employee IS normally workmg; or (b) the destmatIOn IS less than 24 kIlometres by the shortest road dIstance from headquarters The next polIcy provIded to me dated September 1997 and referred to above was entItled Travel Management and General Expenses and was Issued by the Corporate PolIcy Branch. It stated that employees were to be reImbursed for meal costs when they were on travel status as defined by the collectIve agreement and, as a footnote, explamed as follows Where meal reImbursements are made for expenses mcurred wIthm the same metropolItan area and mumcIpalIty as the employee's regular place of bus mess, a taxable benefit wIll result. ThIS means that employees who travel from home desIgnated as office to meetmgs at theIr desIgnated mImstry office and who receIve compensatIOn for parkmg and meals would have to pay a taxable benefit. Travel status m thIS Corporate DIrectIve was defined as the employee's status whIle away from home and headquarters and outsIde the metropolItan area where he or she normally works and conductmg approved government busmess The August 1998 Assessment RevIew Board Guidelines Respecting Members and Hearing Clerks Travel Expenses provIded the followmg wIth respect to meal allowances Where a Member or Clerk resIdmg m the new CIty of (MetropolItan) Toronto IS assIgned to ARB busmess m the new CIty of (MetropolItan) Toronto meal costs will not be paid, no matter the dIstance to the Heanng or other ARB busmess to 4 whIch the Member or Clerk has been assIgned wIthIn the new CIty of MetropolItan Toronto Where a Member or Clerk resIdes In the CIty of (MetropolItan) Toronto and IS assIgned to ARB busIness elsewhere In the Toronto Census MetropolItan Area meal costs will be paid pursuant to the dally maXImums establIshed, If the HearIng or ARB busIness attended by the Member or Clerk IS at least 24 kilometres one way from hIs/her home Where a Member or a Clerk resIdes In the Toronto Census MetropolItan Area but not wIthIn the new CIty of (MetropolItan) Toronto and IS assIgned to ARB busIness wIthIn the CIty of (MetropolItan) Toronto or to another part of the Toronto Census MetropolItan Area other than that part of the Toronto Census MetropolItan Area In whIch the Member or Clerk resIdes, meals costs will be paid If the dIstance traveled from the Member's or Clerk's home IS greater than 24 kilometres one way It IS wIthout dIspute that, to that pOInt In tIme, the Employer Interpreted the polIcIes to mean that If a HearIngs Clerk reported dIrectly to the hearIng locatIOn from hIs/her home and the dIstance Involved was In excess of 24 kIlometres, he/she was paid for hIs/her lunch costs Even after the amalgamatIOn of the CIty of Toronto WIth the five surroundIng boroughs, the 1998 polIcy contInued to reqUIre repayment oflunch costs If the HearIng Clerk traveled 24 kIlometres from hIs/her place of resIdence to the locatIOn of the hearIng so long as the hearIng locatIOn was not sItuated wIthIn the CIty In whIch he/she lIved, I e MetropolItan Toronto Then, In a memo dated May 13 2000 the Employer advIsed the HearIng Clerks that the new gUIdelInes for HearIng Clerks were to be applIed In conJunctIOn wIth the OntarIo Government's Corporate Management DIrectIves on Travel Management and General Expenses and were to replace all other prevIOUS gUIdelInes That memo ObvIOusly raised questIOns about some aspects of the polIcy namely travel and meal allowances A memo dated June 21 2000 clarIfied those questIOns, at least wIth respect to meal allowances by repeatIng the rIght to meal reImbursement If on travel status as defined earlIer and by reproducIng ArtIcle 12.2 1 and 122.2 of the collectIve agreement. It then went on to state as follows Therefore only In those CIrcumstances where you have been assIgned outsIde your normal areas or regIOns of responsIbIlIty or when you are on pre-approved travel status wIll the cost of meals be reImbursed. In other words the Employer has lImIted the reImbursement of lunch expenses to sItuatIOns In whIch a HearIng Clerk IS reqUIred to travel outsIde of hIs/her regIOn of responsIbIlIty Those regIOns of responsIbIlIty are determIned by geographIcal locatIOn and encompass much larger areas than the prevIOUS desIgnatIOns For example, the HearIng Clerk who lIves In FournIer IS assIgned to the areas of Prescott-Russell, Stormont, Dundas and Glengarry The HearIng Clerk lIvIng In Almonte IS assIgned to the Lanark, Leeds and GrenvIlle area. The HearIngs Clerks In the Toronto area are consIdered to be responsIble for Toronto North York, Scarborough, East York and EtobIcoke The HearIng Clerks In the northern regIOns of the proVInce have even larger areas of responsIbIlIty Thunder Bay covers Kenora, RaInY RIver and Thunder Bay the entIre Algoma regIOn IS another desIgnated area as are Cochrane and TemISkamIng and MamtoulIn and Sudbury 5 What IS ObVIOUS from thIS new polIcy IS that some HearIng Clerks travel In excess of 24 kIlometres on a regular basIs and are never elIgIble for meal allowance That IS the effect of the new polIcy Mr Richards, for the Umon, argued that thIS new polIcy vIOlates the collectIve agreement and must be rescInded. He took the posItIOn that the word "headquarters" In ArtIcle 12.2 2 should be Interpreted to mean the HearIng Clerk's home That IS the InterpretatIOn that has been applIed by the Employer In the past and IS most consIstent WIth the Intent of the collectIve agreement. Although the word IS not specIfically defined as It relates to unclassIfied employees, Mr Richards urged me to have regard to other provIsIOns of the collectIve agreement that do define headquarters, ArtIcle 11 applIes to employees who do not attend to a regular or permanent facIlIty In the course of theIr dutIes and another place IS desIgnated by the Employer as a "headquarters" for purposes of attendIng at work. Although Mr Richards conceded that ArtIcle Ills not Included In the lIst of artIcles that IS to apply to unclassIfied employees, he took the posItIOn that I should look at that provIsIOn as an aid to InterpretIng ArtIcle 122.2 Mr Kearney for the Employer submItted that the partIes specIfically excluded ArtIcle 11 from the artIcles that were to apply to unclassIfied employees and thIS Board should not ovemde theIr clear IntentIOns They are SOphIstIcated negotIators who knew what they were dOIng and thIS Board does not have the JUrISdIctIOn to rewrIte the collectIve agreement to reach a contrary end. AddItIOnally ArtIcle 11 reqUIres that the Employer desIgnate an alternatIve headquarters and the Employer has not done that In thIS Instance therefore, even If thIS Board were to look at ArtIcle 11 as an aid to InterpretatIOn, It would not apply In InterpretIng a collectIve agreement ArbItrators are to be gUIded by certaIn rules of InterpretatIOn. The first IS to attempt to ascertaIn the IntentIOns of the partIes who drafted the provIsIOn at Issue In dOIng so an arbItrator must read the words of the agreement In a manner that allows for the most consIstent applIcatIOn VIS it VIS the collectIve agreement as a whole and gIves effect to the plaIn or common meamng of the words used unless an absurd or unreasonable result would occur In thIS case we have a provIsIOn of the collectIve agreement that has been vIrtually unchanged SInce ItS InCeptIOn In the late 1970's DUrIng that tIme It has consIstently been Interpreted In a manner that meant that HearIng Clerks who travel more than 24 kIlometres to a hearIng from theIr homes would be reImbursed for meal costs The earlIest memos from the Employer are proof of that applIcatIOn and InterpretatIOn of the polIcy Those documents make reference to headquarters wIthout defimng what that term should mean. However the Employer by ItS actIOns, has told us that the headquarters for HearIng Clerks who travel from theIr homes to hearIng locatIOns has always been theIr home Even If there has never been an officIal desIgnatIOn, It IS clear that the Employer has de facto defined headquarters as the HearIng Clerk's home It cannot escape the provIsIOns of ArtIcle 122.2 by refusIng to formally desIgnate a headquarters when for all Intents and purposes, It has Informally done so Although I do not have to consIder ArtIcle 11 In determInIng the InterpretatIOn to be gIven to "headquarters" I am of the VIew that the Employer's InterpretatIOn IS consIstent WIth the defimtIOn found In ArtIcle 11 and gIves some gUIdance to the IntentIOns of the partIes when they put theIr mInds to the meamng to be gIven the term headquarters 6 HavIng determIned that the Employer IS oblIgated under ArtIcle 12,2,2 (b) to pay meal allowances to HearIng Clerks who travel more than 24 kIlometres from theIr home to a hearIng locatIOn, the next Issue to be determIned IS the Umon's submIssIOn that the Employer has, In essence, redrafted the polIcy In respect of the payment of lunch costs so that It vIOlates the collectIve agreement. It alleges that the Employer has redefined the metropolItan area as set out In ArtIcle 12,2,2 (c) to mean regIOnal desIgnatIOns of responsIbIlIty whIch are far broader than the orIgInal areas desIgnated and applIed over the years I agree wIth the Umon. For years the Employer paid HearIng Clerks for lunch costs whenever they traveled more than 24 kIlomtres to a hearIng locatIOn from theIr home Even when the CIty of Toronto was amalgamated wIth the five Boroughs, the provIsIOn for meals allowances was explaIned but unamended. If you were assIgned to a hearIng wIthIn the CIty or metropolItan area In whIch you lIved, even If It was more than 24 kIlometres away from your home, you were not entItled to claim compensatIOn for your lunch. Now accordIng to the new polIcy the HearIng Clerks can travel consIderably In excess of the 24 kIlometres and never be elIgIble for compensatIOn because the areas they are responsIble for have been expanded. The Employer cannot umlaterally define the areas to Include In the catchment area for meal allowances wIthout regard to the collectIve agreement. It cannot redefine the areas In whIch a HearIng Clerk IS "normally workIng" to SUIt ItS own purposes The grIevance therefore succeeds The HearIng Clerks at the Assessment RevIew Board are entItled to be reImbursed for meal allowances If they travel more than 24 kIlometres from theIr home to a hearIng locatIOn outsIde the metropolItan area In whIch they resIde I remaIn seIzed In the event the partIes have dIfficulty ImplementIng thIS award nto thIS 24th day of September 2003