GSB# 1593/00
UNION# 00U128
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
BEFORE
Loretta Mikus
Vice-Chair
FOR THE UNION
George Richards
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER
Sean Kearney
Counsel
Management Board Secretariat
HEARING
September 5, 2002.
DECISION
This grievance arises from a change in policy at the Ministry of the Attorney General concerning the payment of lunches for Hearing Clerks at the Assessment Review Board. The Union provided me with a Statement of Facts, which was unchallenged by the Employer, as follows:
This grievance concerns a change in policy applied to hearings clerks who work for the Assessment Review Board.
At the time of this grievance 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 hearings.
Some of the clerks are employed in major cities and regularly report to the same work place (Type 1).
The majority of clerks report directly from their homes to hearing 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 hearing location.
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 original collective agreement between the parties.
The past practice of the employer in administering this provision is reflected in:
September 1997 Management Board Secretariat Policy re Travel Management and General Expenses at pp. 20/33, 21/33, 32/33
Aug 6, 1998 Assessment Review Board Guidelines respecting Member’s and Hearing Clerks Travel Expenses.
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 hearing location more than 24 km away (see exceptions in August 6, 1998 Guidelines, p10, Art 40, para 4).
In March of 2000 the Employer notified all clerks that they would only receive meal allowances if they traveled to a hearing location outside their normal areas or regions of responsibility. 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 original 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:
14.2.2 If during a normal meal period 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.
The next collective agreement was amended by changing the reference to 15 miles to 24 kilometers and by the deletion of the words or urban area. There has been no material change since then.
The grievance arises from a change in the administration of the Employer’s policies which is best explained by reviewing the policies and the application of them throughout the relevant years.
The Management Board of Cabinet Guidelines dated September of 1989 stated as follows:
Meal Costs
Meal costs may be reimbursed when, during a usual meal period, the employee is outside the headquarters area on business. In most cases, this area is within 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, in part, as follows:
MEALS
A, Employees traveling on Government business are entitled to be reimbursed for meal costs. The rates shown in Appendix 1 are the maximums which can be paid WITHOUT RECEIPTS. The rates shown are in Canadian funds and include taxes and gratuities.
B Cost of meals is NOT allowed when:
(a) traveling within the metropolitan area in which the employee is normally working; or
(b) the destination 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, explained as follows:
Where meal reimbursements are made for expenses incurred within the same metropolitan area and municipality as the employee’s regular place of business, a taxable benefit will result. This means that employees who travel from home designated as office to meetings at their designated ministry office and who receive compensation for parking and meals would have to pay a taxable benefit.
Travel status in 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 conducting approved government business.
The August 1998 Assessment Review Board Guidelines Respecting Members’ and Hearing Clerks Travel Expenses provided the following with respect to meal allowances:
Where a Member or Clerk residing in the new City of (Metropolitan) Toronto is assigned to ARB business in the new City of (Metropolitan) Toronto meal costs will not be paid, no matter the distance to the Hearing or other ARB business to 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 daily 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 of lunch 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 12.2.2 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 Manitoulin and Sudbury.
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 Union, 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 11 is 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 12.2.2.
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 override 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 à vis the collective agreement as a whole and gives effect to the plain or common meaning 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 defining 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 12.2.2 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 definition found in Article 11 and gives some guidance to the intentions of the parties when they put their minds to the meaning to be given the term headquarters.
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 Union’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 Union. 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 unilaterally 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
Dated at Toronto this 24th day of September, 2003.