Ontario Public Service Employees Union (Herskovits) v. The Crown in Right of Ontario (Ministry of Finance), 2000 CanLII 20499

GSB # 249/98

OPSEU # 98B219

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Herskovits)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Finance)

Employer

BEFORE Randi H. Abramsky Vice Chair

FOR THE Peggy Smith GRIEVOR Counsel Eliot, Smith Barristers & Solicitors

FOR THE Fateh Salim EMPLOYER Counsel Legal Services Branch Management Board Secretariat

HEARING March 6, 2000 May 15, 2000

AWARD

The grievor, Leo Herskovits, is a Senior Tax Auditor with the Ministry of Finance. At issue is whether he is entitled to claim travel time and expenses from the taxpayer’s location to his residence at the conclusion of the work day, rather than from the taxpayer’s location to the office.

FACTS

The parties proceeded by way of an agreed statement of facts. They are as follows:

1. The Grievor, Leo Herskovits (“Grievor”), is a Senior Tax Auditor, Tax Auditor 5, working with the Corporations Tax Branch of the Ministry of Finance at the North York Regional Tax Office.

2. The Grievor commenced his employment with the OPS in 1985.

3. The Auditors do most of their work away from the office, at the taxpayer’s place of business (“audit location”).

4. Auditors are assigned audit files from the office or their residence as indicated by the Origination of Field Visits information on the Field Assignment Sheet. Travel expenses are paid based on the Field Assignment Sheet.

5. After the Hayford decision, a policy was instituted requiring Auditor’s (who were assigned files from the office) to report to the North York office prior to and after working at their audit location.

The memo, dated February 6, 1989, regarding “Payment of Travel Time and Kilometric Rates”, states, in pertinent part, as follows:

Further to my memorandum of January 11, 1989, the following scenarios are intended to serve as guidelines for the administration of kilometre payment and time accumulation as a result of the Hayford decision.

Employee Using Personal Car

1. Employee travels from home to headquarters, remains in the office all day and returns home.

Entitlement: No kilometre payment or time accumulation.

2. Employee is authorized 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 authorized 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 Grievor 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 Regional Tax Office issued a memorandum instructing 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 business reasons.

The memo, in pertinent part, states as follows:

To improve security and ensure consistency within the Regional Tax Office, North York location, 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 Fridays – 8:00 a.m. to 5:00 p.m. (excluding holidays)

This change will be effective November 12, 1997.

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 in office hours the Grievor began to claim travel expenses from office to taxpayer and return to his residence instead of claiming return back to the office.

9. It is the Ministry’s policy that travel is to be restricted to within working hours. However, an Auditor, with management’s concurrence, can elect to receive compensating time for travel time.

A memo dated November 30, 1993 to “All field Audit Staff”, regarding “Travel Time/Work Time”, stated in pertinent part, as follows:

As a result of grievances filed by field auditors in the MFTT Branch, the Grievance Settlement Board (GSB) has recently released an award on the issue of whether time spent travelling to audit sites outside working 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 inherent part of a tax auditor’s job.

Pending a review of the implications of the GSB’s decision and, given current fiscal constraints, it has been decided that all travel will be restricted to within working hours effective December 1, 1993. However, should any individual employee elect to receive compensating time for travel time, and management concurs (per Article 23.6) the above-noted restriction need not apply.

10. On of about December 16, 1997, the Grievor filed a Statement of Travelling Expenses for the period December 1, 1997 to December 15, 1997 wherein the Grievor claimed travel expenses from the audit location to his home at the conclusion of the work day.

11. The total expense was for $236.39 which covered travel claims for six separate occasions.

12. On January 23, 1998, the Grievor filed a grievance.

13. On or about January 23, 1998, the Employer rejected the Grievor’s claim on the basis that the travel claim as filed by the Grievor is contrary to the policy instituted 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.

14. The Grievor re-filed his travel claim, this time claiming reimbursement from the taxpayer’s place of business to the North York Regional Office.

15. The Employer reimbursed the employee based on the re-filed claim.

16. The Grievor claims the difference between the original claim to his residence and the re-filed claim.

ARGUMENTS OF THE PARTIES

The Union asserts that the grievance requires the board to reconcile a number of prior GSB decisions concerning travel time. It contends that under a proper reading of the cases, the grievor is entitled to be paid for travel time to his home at the end of the work day.

The Union submits that in OPSEU (Gabriel et al.) and Ministry of Revenue (1993), GSB No. 2249/92 (Finley), the board determined that travel was not an inherent part of a tax auditor’s job, and that travel outside of work hours is “travel time”, not work time. Accordingly, Article 23 (now Article 14) would apply. Article 14, in relevant part, states as follows:

ARTICLE 14 – TIME CREDITS WHILE TRAVELLING

14.1 Employees shall be credited with all time spent in travelling outside of working hours when authorized by the ministry.

The Union further relies on the fact that the grievor’s “work time”, as an auditor, is 7¼ per hours day, 36¼ hours per week and the fact that the grievor is a Schedule A employee. Because of the nature of an auditor’s job, an auditor regularly works excess hours (over 7¼ per day and 36¼ per week) during certain periods of the year and the hours of work for this group of employees is averaged pursuant to Schedule A of the collective agreement. Under Schedule A, as interpreted in 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 14½ excess hours without prior authorization.

In the Union’s submission, the Employer cannot, under these cases, require the grievor to travel back to the office during “work time”, for to do so would result in less than 7¼ hours of audit time per day and eliminates the grievor’s right to schedule his hours as required to finish the job. It also, in its view, improperly treats travel time as “work time”, contrary to OPSEU (Gabriel et al.), supra.

The Union submits that given the fact that the office now closes at 5:00 p.m., the grievor would have to leave the audit location at 4:00 p.m. to be able to return to the office. In light of the grievor’s stipulated travel times (45 minutes in the morning to the audit location and one hour return to the office), plus the required half hour for lunch, that leaves insufficient time for the grievor to perform his audit work. The Union asserts that because travel is not an inherent part of the job, the grievor 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” principle in OPSEU (Hayford) and Ministry of Correctional Services (1988), GSB No. 1398/87 (Kates) because the grievor is being paid only for the travel and kilometres from the audit location to a closed office, rather than to his residence.

The Employer asserts that its practice of requiring the grievor to return to the office during the regular work day is consistent with the collective agreement and the GSB case law. Accordingly, it contends that its actions did not violate the collective agreement and the grievance should be dismissed.

The Employer submits that the collective agreement defines “travel time” under Article 14.1 as “time spent in travelling outside of working hours when authorized by the ministry.” It relies on OPSEU (Downey et al.) and Ministry of Transportation (1990), GSB No. 30/89 (Samuels), in which the board determined that the employer could require employees to travel during working hours. In this case, it argues, the grievor’s travel was not “outside of working hours” nor was it “authorized by the ministry.”

The Employer further contends that there is nothing in OPSEU (Gabriel et al.), supra, which changes that result since what was at issue there was travel outside of the employees’ regular work hours. Nor, it argues, does its decision reinstate the “lesser than” principle rejected in Re OPSEU (Hayford). The Employer also relies on Re OPSEU (Botts/Prosser) 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 during 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 grievor travel back to the office during work hours – and thus not pay him travel time from the audit location to his home – does not violate the collective agreement.

The pivotal issue is whether the Employer may require the grievor to travel back to the office during 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 during working 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 authorized 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 grievance, concluding as follows at pp. 3-4:

In our view, the governing provision is Article 23.1 [now Article 14.1]. Travel time is “time spent in travelling outside of working hours” (emphasis added)….

The Ministry did not try to balance its budget by asking the grievors to do something for nothing. And the Ministry did not take away a right which the grievors had previously. Instead, the Ministry reduced the working time at the job sites by up to one hour each day, but kept the overall “working hours” the same as had been previously. In our view, this cost-saving measure did not violate the collective agreement. The grievors are still receiving credit for authorized time spent in travelling outside of working hours.

The Union, however, suggests that Re OPSEU (Gabriel et al.) limits this right because it determined that travel was not an inherent 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 various work sites outside of regular working hours is work time or travel time.” (Decision, p. 1) It reviewed the case law and concluded at p. 12 that there are “two criteria to be used in determining whether time spent travelling outside normal working hours is work.” These were:

(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 during the period of travel to care for either Ministry property or personnel.

The board, based on the facts presented, concluded that travel was not an inherent part of the tax auditor’s job. In so ruling, it relied on the following facts:

(a) The audit function itself (7.25 hours per day) does not involve driving or travel.

(b) The Tax Auditors travel to their assigned work-site and stay there for their normal working day (7.25 hours).

(c) The Tax Auditors do not travel to numerous work-sites during the normal working day.

(d) During the time spent travelling they do not remain in 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…

The board concluded as follows at p. 14:

Result

The Board has determined that travel during the Tax Auditors’ regular hours of work is not an inherent part of their job… Therefore, the time spent in travel outside working hours must be treated as travel time, not work time, and Article 23 applies.

It is possible, as the Union suggests, to read Gabriel as establishing that the Employer cannot treat travel time as “work” time or include travel time in the calculation of hours worked for “averaging” purposes under Schedule A. But in my view that is an unduly broad reading of Gabriel. The issue in Gabriel was whether time spent in travel “outside working hours” must be treated as travel time or work time; it did not address the issue in this case – whether the Employer may require employees to travel during regular working hours.

Further, Gabriel is factually distinguishable. The auditors there were required to perform 7 ¼ hours of “audit function” which did not include travel or driving time and they were expected to remain at the audit location for the full 7¼ hour day. In the present case, the grievor was not expected to work 7¼ hours at the audit location.

The situation in this case is very similar to Re OPSEU (Botts/Prosser) and Ministry of Revenue (1991), GSB No. 1525/89 (Dissanayake). In that case, the Employer, in order to save travel costs, directed auditors to report to the office at the start and end of the work day, rather than authorize the auditors to travel directly from home. Thus, the employees were required to report to the office at 8:15 a.m. prior to travelling to the audit location and then return to the office at 4:30 p.m., rather than travel directly between their residence and the audit location. The time from 8:15 a.m. until the audited business opened at 9:00 a.m. and the time from 4:00, when they left the audit location, to 4:30 p.m. 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 authorization was to travel direct from home or to travel from the office depended on which was less costly to the employer in the particular case.” (Decision p. 4-5) The Board determined at p. 19 that “[t]here is no right under the collective agreement for travel to be authorized.” In its view, the decision whether or not to authorize travel time was a management decision, and Article 23 (now Article 14) applied only when travel had been authorized.

The board also disagreed that the effect of the employer’s action was to continue the “lesser of” principle rejected in Hayford, supra. It stated at p. 18:

The Hayford decision presupposes that the travel for which a claim is made is authorized by the Employer. It holds that when authorized travel is undertaken by an employee, he or she is entitled to be paid on the basis of actual distance and time. Hayford does not deal with in any way the question of when or how the Employer may or may not authorize travel.

A few things are clear from a review of these cases. First, under Re OPSEU (Botts/Prosser), supra, the Employer has the right to decide whether or not to authorize travel time and may do so based on cost considerations. Second, under Re OPSEU (Downey et al.), supra, the Employer may require employees to travel during the regular work day as a cost-savings measure, even though it means less time at the work-site. Third, Re OPSEU (Gabriel et al.), supra, established that travel outside working hours must be treated as travel time, not work time; it did not address whether the Employer could require employees to travel during regular working hours.

Although Botts/Prosser preceeded the Board’s decision in Gabriel, the decision in Gabriel does not change the result. Gabriel does not state that an auditor’s work day must include 7¼ hours of pure audit time or that it cannot include travel time. If the Employer chooses to have employees engage in less actual audit time during work hours, 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 location 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 ½ hours of audit time per day. Just as in Botts/Prosser, the time it takes for the grievor 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 grievor’s travel time is significantly longer than the travel required in Botts/Prosser, the principle is the same.

The fact that the grievor is a Schedule A employee with the right to self-authorize additional hours to a maximum of 14½ hours also does not change the result. There is nothing in Schedule A which limits the Employer’s right to require employees to travel during work hours. The Employer may still require travel time as part of the work day; the travel time would be included in the total number of hours for averaging purposes.

Finally, in 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 building. An employee’s work hours may be earlier than the building opens, or may extend beyond the building’s closing.

Nor, for the reasons stated by the board in Botts/Prosser, does the employer’s action result in a return to the “lesser than” principle rejected in Hayford, supra. As the board stated in Botts/Prosser, supra at p. 18: “[Hayford] holds that when authorized travel is undertaken by an employee, he or she is entitled to be paid on the basis of actual distance and time. Hayford does not deal with in any way the question of when or how the Employer may or may not authorize travel.” In this case, the Employer did not authorize the grievor to travel outside of the work day, nor from the audit location to his residence. It required the grievor to travel back to the office during work hours. Its decision to do so does not reinstate 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 grievor to travel back to the office during regular work hours, and did not violate 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. Accordingly, the grievance is dismissed.

Dated at Toronto, this 20th day of July, 2000.