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HomeMy WebLinkAbout1984-0772.Afful et al.85-11-22IN THE MATTER OF AN ARBITRATION Under THE CROWN Eh4PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (William Afful, Ron Hume, C. L. Hume and S. 5.. Ahluwalia) and The Crown in Right of Ontario (Ministry of Transportation and Communications) Before: Prof. K. Swinton Vice-Chairman I. Freedman Membei C. Milley Member For the Griever: P. A. Sheppard Grievance Officer Ontario Public,Service Employees Union For the Employer: D. W. Brown, Q .C. Crown Law Office Civil Ministry of the Attorney General Hear* May 30, 1985 Grievors Employer This is one of a long line of cases involving payment of an employee's expenses for the use of a personal vehicle in travelling to work and for the payment of meal allowances. Entitlement to such allowances depends on the distance between an employee's headquarters and job site. The present grievors all object to the headquarters to which they have been assigned for the purposes of payment of travelling expenses and wish to have . their headquarters designated on the basis of proximity to their homes. To understand the dispute in this case, it is necessary to consider the many cases which have gone before. The collective agreement between the Ministry and the~union provides for payment of meal allowances (Article i7), compensation for the use of a personal vehicle (Article 22), and time credits while travelling (Article 23). Article 22 sets out the mileage rates to be paid for personal use of an automobile by an employee, but it does not state the points to be used in calculating the mileage travelled. The employees involved in these cases work on the field staff of the Ministry. They work on construction sites, and the location of their employment varies.- that is, they often work -along a stretch of highway under construction, and they move from I one job site to another, as a project is completed. They are -2- paid travel and meal allowances to compensate for the-distance which they may have to travel to work on a particular site. T h e collective agreement does not state the points to be used in - calculating travel allowances. .At one time, the practice was to use the distance between the employee's home and the place of work. This was changed to the distance between the employee's designated headquarters and the job site, with the headquarters chosen which was closest to the employee's home. The headquarters can be seen as an artificial place, since the employee does not report there each day before work; normally, the employee reports directly to the job site. An earlier arbitration award between these parties, the Howes case (356/92 - Verity), d'etermined that the interp're- tation of Article 22 was governed by the Ministry's Travelling and Living Expense Accounts Manual,, which provided that a stated headquarters must be designated as the point of departure of an employee's operations. The Manual states that the headquarters should be at the place considered most convenient for the conduct of the Ministry's business, and the location should be periodi- ‘tally reviewed to determine whether the arrangement is "equitable" to the employee and the Ministry. In the Howes case, the Board determined that the redesignation of an employee's headquarters must be equitable to both the employee and the -Ministry within the meaning of the Manual. This decision. was upheld by the Divisional Court on judicial review, and leave to - 3 - appeal to the Court of Appeal was denied. The Howes case was done of many precipitated by a decision of the Ministry to reorganize the headquarters system inthe Central Region in 1982. The Ministry was concerned about the heavy financial burden caused by the payment of travelling expenses, and a decision was made to reduce the number of headquarters from which employees would be paid travelling expenses from fourteen to nine. Only two remained in the Niagara region: Burlington and Beaver Dams, near St. Catharines. Employees like Mr. Howes and those involved in many of the other grievances which came to this Board were adversely affected, by the consolidation of headquarters, for the expenses which they had beenreceiving were reduced without any change in the location or nature of their , work. This Board, in a number of cases, held that,the Ministry could not unilaterally change the employees' headquarters where it was not equitable to do so. Ultimately, a consent award was issued by this Board in May of 1984 (145/82 - Brent), which provided that the Ministry would reassign all field staff adversely affected under Articles 37, 22 . and 23 of the collective agreement as a result of the change in headquarters contrary to Ministry policy to their headquarters as of May 1, 1982, unless the change in headquarters was made by mutual consent or was employee initiated. Ministry initiated changes in an employee's location in the future would occur only where a change in the employee's location occurs. The result of the consent award is to revive.the fourteen headquarters existing prior to May of 1982 for some employees. However, for new employees and for employees transferred to a new region, the Ministry is using only the consolidated headquarters which it adopted after 1982. The grievors in this case all voluntarily~transferred to the Central Region from Southwestern Region in April ~of 1983. Three are Senior Construction Technicians and one is a Technician. They are ~a11 on the Ministry field staff. When they transferred to the Central Region, they were all assigned to the Burlington Patrol yard as a headquarters, one of the two consolidated headquarters in the Niagara region. , This Board heard detailed evidence from one of the grievors, Larry Lowe. He sought a transfer to the Central Region for two xeasons: the lack of work in the Southwestern region, which would mean layoffs in the future; and a desire to be closer to family in the St. Catharines area. He testified that his supervisor in the Southwestern Region told him that there were only two headquarters in the Niagara area, Burlington and Beaver Dams, and he testified that he.did not know which one would be assigned $0. - -5- Mr. Waller, the supervisor, said that he clearly told Mr. Lowe that the work at Beaver Dams was coming to an end within two to three years and that. the long term work would be in the Hamilton area. - On April 5, 1983, Mr. Lowe started.work in the Niagara region. He was told that his expenses would be .paid from Burlington to his old headquarters at Reece's Corners temporarily until his family relocated. He testified that no one told him that his permanent headquarters would be,.in Burlington until April 11. He then approached theeconstruction Supervisor and told him that he would probably be living in St. Catharines. The response was that would be fine, but Mr. Lowe's headquarters would be in Burlington. , Mr. Lowe would like to have his headquarters in 'the St. Catharines area at the old Homer.Patrol Yard, as he purchased his home in St. Catharines. The Burlington Patrol Yard is significantly closer to the job site at which he works - one kilometre, rather than the 63-64 kilometres from the Beaver Dams headquarters. Nevertheless, Mr. Lowe feels that he has been unfairly treated in his assignment to the Burlington Patrol Yard: because he is working from the Burlington Yard, he has not been paid~ for travel and meals despite the fact that he must travel from St. Catharine.s to.work. In contrast, several other employees who had transferred from the Southwestarn Region were -6- working in St. Catharines, although they were also-assigned to the Burlington headquarters. They were being paid travel and meal allowances for travel from Burlington (or their homes, if these were closer) to-the job site, while he was ~paid only from Burlington to the job site. It is the Ministryis position that it has the power to designate job headquarters, and the only constraint on this power is- the obligation to act .equitably when an employee's headquar- ters is changed without any alteration in work location. In this case, we are dealing with several employees who voluntarily transferred to a new region, thus necessitating a change in their headquarters. It is the Ministry's position that the %rent consent award and the Ministry Manual's equitability criterion . are not applicable in these circumstances. If one returns to the Brent award, one finds the following words: 1. All field staff where they have been adversely affected under the provisions of Articles 17, 22 and 23 of the Collective Agreement as a result of a change in headquarters outside of the Ministry policy . . . will be reassigned to their headquarters as they were on May 1, 1982, or as at a later date effected, save and except where headquarters were changed by.mutual consent, or were employee initiated. The award.then goes on to speak of retroactive entitlements for allowances. -,- - This provision is not designed to deal with the grievers' situation. It deals with field staff adversely affected "as a result of a change in headquarters outside of the Ministry policy" - that is, wrth an employee whose headquarters was changed without taking into account,whether he was adversely affected by the change. The consent award makes clear that the headquarters of an employee is not to be changed where he is inequitably treated, and that only a change in employment location justifies a change in headquarters by the Ministry (paragraph 3). Employees who were not adversely affected by the consolida- tion in headquarters in 1982 have continued to use the consoli- dated headquarters for purposes of calculating expenses. The present Ministry directive dealing with headquarters continues to provide that the headquarters of an employee shall be at the place considered "most convenient for the efficient conduct of the Ministry's business". It then goes on to discuss changes in headquarters initiated by the Ministry, which will occur only where a change in the employee's employment location occurs. The grievors do not come within the terms of the consent award, as they were not adversely affected by the change in headquarters outside of Ministry policy. They are not employees who found their headquarters unilaterally changed by the employer, with serious financial' repercussions for them, as in r -8- the Howes case. The grievors chose to transfer to the Central Region, with the knowledge at the time of the transfer that there were only two headquarters in use in the Niagara area at that time - Burlington and Beaver Dams. According to Mr. Wailer, they had some warning that the likely headquarters was Burlington. From the evidence of both Mr. Lowe and.Mr. Ahluwalia, there was knowledge that Burlington would.be the headquarters before they made decisions as to where to relocate their families. In these circumstances, where we are dealing with a voluntary transfer by an employee,the employer has the right to determine the headquar- ters most convenient to the efficient conduct of its business in accordance with the Manual and past awards off this Board. Mr. Lowe chose to locate in St. Catharines for personal reasons, while 'other employees chose the Stoney Creek and Hamilton area. In the circumstances, he and the other employees were not adversely affected by the designation of their headquar- ters in Burlington.- they had notice of their work headquarters and could have located so as to reduce their personal travel costs. While Mri Lowe felt it'was unfair that some employees living in the Hamilton or Stoney Creek area were paid to travel to work in St. Catharines, while he was not paid to travel to the Burlington area, the cost which he had to bear was a result of his decision to locate in St. Catharines. While he would have preferred to work in the St. Catharines area, his skills were need elsewhere, and he was aware of this when he made his I I -9- decision where to live. The concern of the other panels of this Board in the cases decided on travel allowances was the unfairness to employees who had made a decision as to their place of residence based on . certain expectations about travel costs and then found their expectations disappointed because of a unilateral decision by the employer. It is the employees' reliance that the Board sought to protect. The grievors here were relocating to a new region, and they had no established expectations about their headquarters on which they had made decisions, about location. While they might preferto. have their headquarters close to their home, with the increase~in travel allowances that would often occur, they'have no claim to such a designation of headquarters under the Brent consent award nor under the collective agreement, as interpreted using the Ministry Manual. What the grievors seek to do here is to freeze the headquar- ters locations which the Ministry uses. If they were to succeed in these grievances, the Ministry would be forced to maintain the . fourteen headquarters which existed prior to 1982 and could change those headquarters only when the change was equitable to the employee. To uphold. the grievances would be contrary to earlier decisions of this Board, which acknowledged the ,employer's right to designate headquarters, subject to the . criterion of equity. .- 10 - Fsr these reasom, the grievances are denied. DATED at Toronto, Ontario this 22nd day of November, 1985. % ‘,’ I. Freednian, Member’ a YJbL.+ C. Milley, Member