P/925/84

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mr. R.J. Mootoo, et al

Grievor

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

The Honourable Walter Little

Chairman

FOR THE GRIEVOR

Ms. N.A. Talvila Fraser & Beatty

FOR THE EMPLOYER

Ms. L. McIntosh Crown Law Office Civil Ministry of the Attorney General

HEARING

June 13, 1984

Decision on Preliminary Objection

The Statement of Facts filed on behalf of the parties sets forth the background to this arbitration. The twelve grievors are employed by the Audit Branch of the Ministry, five being Audit Supervisors, five - Senior Auditors and two, Auditors. All positions are classified in the Financial Administration Module within Schedule 6 to Regulation 881 under the Public Service Act. All positions are outside the bargaining unit.

On January 6, 1984 Mr. J. Solymos, the Director of the Audit Services Branch, introduced new travel policy guidelines for the Branch. Attached to his memorandum on the change was an illustration of the application of the travel policy to one trip made by the grievors.

Paragraph (5) of the Guidelines was:

Audit Hours - Travel Assignments

• Minimum work week is 36¼ hours (Schedule 6)

• Minimum number of audit hours required per person will be calculated and specified by Manager as follows:

• 36¼ hr. min. wk. less ½ (one-way travel minus 1 hr.)

• one-way travel time minus 1 hr. not to exceed ½ day per week.

• Shall conform as closely as possible to working hours of units being audited.

The example of the application of this Travel Policy to Cornwall is as follows:

Mileage to Cornwall - 442 km,

Travel time @ 80 km. per hour 5½ hours

Calculation of Travel absorbed by Branch

Travel time 5.5 hours

Less 1.0 hour

2/4.5 hours

Travel time absorbed by Branch 2.25 hours

Audit hours required 36.25 hours

Less absorbed by Branch 2.25 hours

34.00 hours

Illustration of working hours in Cornwall:

Leave 6:30 a.m. START FINISH AUDIT HOURS

M 1:00 p.m. 5:15 4 ¼ 34

T 8:15 6: 15 9 11

W 8:15 6:l5 9 45

T 8:15 5: 15 8 36 ¼

F 8:15 12:00 3 ¾ 8 ¾

TOTAL 34

Arrive 6:30 p.m.

On January 11, the grievors protested the travel policy's "dramatic changes” and suggested discussions.

On January 16th, Solymos replied and referred to, and enclosed, copy of memorandum to the audit staff dated December 14, 1983 on Hours of Work and Travel Time. In essence it was stated that "the travel policy of the Provincial Auditor's Office will apply to the Audit Services Branch”.

It was agreed that prior to January 1984 the travel policy of the Branch was loosely governed being largely at the discretion of the Audit Supervisor, within the guidelines prescribed by the Director from time to time.

An example is found in a memorandum dated August 1, 1972 which states the following:

Mileage will commence and terminate at 18 King Street, East. Audit team will use own discretion on departure and arrival time on allowable weekend travel.

On January 14th the Audit Branch was given a choice of hours of work from stated starting times (7¼ hours daily). Finally, it was agreed that the hours of work for civil servants of the classifications set out in Schedule 6 "vary in accordance with the requirements of the classification but shall not be less than 36¼ hours” per week.

On January 16, the grievors filed a grievance with the managers reading:

We, all being Schedule 6 employees, and excluded from the Bargaining Unit, request that you kindly accept this as formal notice of the institution of a Grievance Procedure in accordance with the Public Service Act, Regulation 881, Section 50(1).

Attached thereto was a document headed "To whom it may concern" which reads:

Our dissatisfaction is based on the grounds that it is unfair, and though the policy claims to be consistent with that of the Provincial Auditor, it in fact bears little similarity.

The reply of the audit managers dated January 17, 1984 reads:

Without Prejudice

This will acknowledge your grievance dated January 16, 1984 that the travel policy of the Audit Services Branch is unfair and not consistent with the policy of the Provincial Auditor's Office.

Regulation 881 of the Public Service Act contains no provisions respecting travel time for employees in positions allocated to classifications set out in Schedule 6. There has, therefore, been no violation of the above regulation, and your grievance is accordingly denied.

Travel policy is, however, determined by the employer. In this regard, the Director of the Audit Services Branch has this date advised the writers that the policy of the Provincial Auditor with respect to travel will be implemented as written.

From time to time, it is to be anticipated that the policy of the Provincial Auditor's Office with respect to travel will require interpretation or clarification, and we shall provide you with same as requested and/or as required.

The grievors expressed their dissatisfaction with the reply and the matter was reviewed by Glenn H. Carter, General Manger.

On February 2, 1984 Mr. Carter reiterated the previous position of the Ministry's jurisdiction, made reference to discussions which had taken place, and that further confirmation was to be obtained.

On February 13, the grievors presented their grievances to the Deputy Attorney General and included therein an alternative proposal.

On February 15, Mr. Carter gave his final decision again taking the position that this Board lacked jurisdiction, and without prejudice to this submission, that he had reviewed the practice and concluded there was no basis for the complaint.

The Deputy Attorney General on February 27th gave his reply to the grievance and basically restated the position taken by Mr. Carter.

The Submissions on Jurisdiction

In opening her submission on jurisdiction, counsel for the Ministry stated that in essence the grievors are seeking compensation for travel time which is in excess of what they consider to be a reasonable amount of travel time. The Employer's position was based on three contentions. First, that this Board only has jurisdiction with respect to a violation of Regulation 881 under the Public Service Act. Second, the Regulation makes no provision for compensation for travel time for the grievors. Third, because there is no such provision, there can be no violation, and therefore, the Board has no jurisdiction.

The terms and conditions of employment of non-bargaining unit employees fall into two categories. First, those which are reserved exclusively to management decision and are therefore not reviewable and secondly, those that are subject to the grievance procedure as set out in the Regulation. The Employer contends that the grievors are asking the Board to review the terms and conditions of employment which are exclusively management rights.

The powers of the Board to hear grievances are set forth in Part V of the Regulation. Section 36(d) of Part V reads:

"grievance” means a complaint in respect of dismissal, working conditions, or terms of employment.

and

Section 37(2) reads:

Two members of the Board may hear and dispose of a grievance under this Part.

It was contended that this Board is a creature of statute and has no more authority than that conferred by statute (The Public Service Act) and Regulation 881 enacted under the powers provided in the Act.

Section 30(1) of the Act says "The Commission (Civil Service Commission)... may make regulations.

(f) determining employee benefits;

(h) prescribing the hours of work;

(i) defining overtime work and providing for compensation;

(r) providing for ...grievance boards, . . , and prescribing their jurisdictions, powers and duties...

Under Part V, Section 36(d) supra, this Board is empowered to hear complaints related to "dismissal and working conditions or terms of employment.

Section 49(1) of Regulation 881 under the heading "Working Conditions and Terms of Employment" says

Subject to subsections (2) and (3) sections 50 to 57 apply to persons who are employed in the public service under the jurisdiction of a deputy minister...

(Subsections (2) and (3) do not apply to this grievance).

Section 50(1) reads:

Any person may present a complaint in respect of working conditions or terms of employment ...

The issue herein is as to what working conditions and terms of employment can be included in a grievance. The Employer's contention is that it is only those included in the Regulation. Nothing in the regulation circumscribes the right of management to schedule hours of work for Schedule 6 employees nor to provide compensation for the travelling time of the grievors.

First, counsel compared the Act and the Regulation to the terms of the collective agreement. In the former there is no provision for compensation for travel time except when it is related to overtime. Counsel for the grievors disclaimed that overtime was involved in this grievance. The reason for this concession is obvious. Schedule 6 employees have no maximum working hours, only a minimum of 36¼ hours with the maximum depending on circumstances. All others may include travelling time when computing vacations under the situations set forth in Section 5(5) of the Regulation. In the collective agreement, however, working conditions are listed in the index. Article 23, deals specifically with "Time credits while traveling”. These provisions no doubt resulted from the compulsory bargaining between the parties. No such bargaining takes place with non-bargaining unit employees. Schedule 6 employees are not included in the overtime provisions. Section 11 includes only Schedules 3, 4 and 5 employees and Section 12 refers only to those classifications set out in Schedule 7. Therefore, it was submitted that as Schedule 6 employees do not get overtime pay, they cannot grieve with respect to travel compensation.

Finally, Schedule 6 employees are professionals. They have an obligation to do what is necessary to meet the requirements of the job and this does not include the “counting of hours”. They vary as the Regulation says “in accordance with the requirements of the classification".

The submission on behalf of the grievors is based on a request to give a broad meaning to the term “working conditions and terms of employment”. From April 1982 annual memoranda were received by the grievors until 1983 and all gave the audit team discretion on departure and arrival times on allowable week-end travel. Using a trip to Cornwall as management had done, counsel argued that prior to the changed policy to audit, team would leave Metro about 6:30 a.m. Monday and arrive in Cornwall at noon, and on the return trip would leave in time to reach Metro between 5:00 and 6:00 p.m. Friday. The new formula required 34 audit hours weekly and 11 hours travelling a total of 45 hours. The former total time was 38:75 hours so the change was a dramatic one.

A grievance may be lodged with respect to "working conditions or terms of employment" (Section 36(1)(d)) but these words are not defined in either the Act or Regulation. Furthermore, it is not stated in either the Act or Regulation that working conditions and terms of employment are only those enumerated therein. Finally, neither the Act nor Regulation states that the Board may only hear a grievance alleging a breach of the provisions of such Act and Regulation.

The grievance relates to working conditions and terms of employment and is the only way to compel negotiations as to what they should be. That right should not be taken away or "watered down" when this is not required by Statute. Counsel supported her argument by reference to several cases Re Damphin - Oshue School Area and Damphin - Tech Division Association No. 33 of the Manitoba Teachers' Society et al 21 D.L.R. – 82 (Manitoba Court of Appeal), Rolling River School Division No. 39 V. Rolling River Division Association No. 39 of Manitoba Teachers' Society (1980) 2 W.W.R. - 187, Re Town of Dryden and Dryden Police Association (1973) 1 O.R. 619, Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association 5 O.R. (2d) - 285 (Divisional Court) and 57 D.L.R. (3d) - 161 (Court of Appeal).

In the Damphin case the Court held that the “language terms and conditions of employment” included attempts to amend the salary continuation plan.

In the Rolling River case it was decided that the subject of lay-off fell within the authority of a Board of Arbitration to decide issues relating to "terms or conditions of employment of teachers”. The Public School Act referred to contained no reference to such terms and conditions including the question of lay-off. At p. 190 the Court said "the concept of lay-off”, clearly and easily comes within the scope of such terms and conditions”.

In the Town of Dryden the Court held that the expression "working conditions” was broad enough that an arbitrator could include in his award a provision that two men be assigned to cruiser cars at certain hours. At p. 62 O’Driscoll J. said “Working Conditions" include...the circumstances in which the work will be performed”.

In the Metro Toronto the arbitrator followed the Dryden decision and the Divisional court denied an application for judicial review by the Employer. The Court of Appeal dismissed an appeal from that decision. It should be noted, however, that in his judgement Jessup J A . said at p. 163 "In my opinion the Legislature has expressly recognized and provided for such unavoidable conflict between the results of collective bargaining and the powers and responsibilities of a Board. Section 29(2) of the Statute (rep. and sub. 1972, c. 103, s. 2) provides that by regulation the Lieutenant-Governor in Council may exclude from the collective bargaining and arbitration area “such working conditions as are governed by regulation. It is for the Government to determine when the inevitable conflict between bargaining and policing is intolerable and to eliminate the conflict".

The terms of employment of the grievors herein have been established by practice, by the job description, by the accumulated annual memoranda, by the Administrative Manual and various Orders-in-Council and Management Board directives. A change in any of these should be grievable. The Board should not give a restrictive meaning to the terms and conditions when the Regulation does not define them. In any event, Schedule 6 employees should have as many rights as bargaining unit employees.

In essence, Regulation 881 is to provide an avenue for non-bargaining unit employees to grieve with respect to any and all terms of employment on the broadest basis.

Counsel referred to Heustis & New Brunswick Electric Power Commission 1979 CanLII 26 (SCC), 98 D.L.R. (3d) 622 in which Dickson J. (as he then was) in delivering the unanimous decision of the Supreme Court of Canada dealt with the remedial powers of an arbitration board with particular reference to disciplinary action under the terms of a collective agreement. In it the Court approved a decision of the New Brunswick Court of Appeal in Re Zolondek (1976), 1976 CanLII 1608 (NB CA), 15 N.B.R. (2d) 665. There it was held that because Section 92(1)(b) of the Public Service Labour Relations Act made a suspension arbitrable, the duration of the suspension must also be arbitrated. Likewise, in Heustis the Court approved a substitution of suspension for discharge. Dickson J. at p. 631 said the Zolondek decision "represents the recognition, and exercise of a in the language of the collective agreement”. The learned justice later added also at p. 631 "there is a very good policy reason for judicial restraint in fettering adjudicators in the exercise of remedial powers”.

Reference was also made to the equitable decision of this Board in Grievance No. 800/74 - Noble which concluded as follows:

The Board's decisions in this case do not relate specifically to any contract, act or regulation but rather constitute a decision as to what appears to the Board, in quite unusual circumstances, to be an equitable basis for settlement of a salary dispute between an Employer and an Employee".

Finally, counsel argued that because in the case of Fawcett 275-82 the Grievance Settlement Board assumed jurisdiction to adjudicate upon the question of travelling time this Board should do likewise. It was conceded, however, that the grievance in Fawcett claimed a violation of Article 23(1) in the collective agreement which deals specifically with time credits while travelling, while Regulation 881 has no provision dealing with such credits.

Counsel lastly referred to an old decision of this Board No. 470/69 Arnold and Hale dealing with transportation as a condition of work. There the Board assumed jurisdiction when both parties agreed there had been a unilateral change in a term of employment, and the employer had refused to negotiate. Despite the Board's statement that the grievance “had status, both as to jurisdiction and substance” it did not proceed to deal with the issue. It merely said "negotiation is indicated" but concluded that it "expresses no opinion as to its merits".

In reply, Counsel for the Ministry agreed with two of the three issues raised by the grievors. First, it was conceded that the grievances are related to a change in the number of hours the grievors are required to work and secondly, that such a change is a change in working conditions and terms of employment.

The only issue is that whether all working conditions and terms of employment are reviewable by the Board. Counsel repeated her contention that this Board cannot expand its jurisdiction. Neither the Act nor the Regulation gives the Board such broad powers. Prior to such legislation all working conditions and terms of employment were unilaterally fixed by management. This Board can only use the power given to it. Bargaining unit employees cannot grieve a change in all working conditions or terms of employment, only those referred to in the collective agreement. The Act and the Regulation are to non-bargaining unit employees what the collective agreement is to bargaining unit employees. There is nothing in the Regulation or Act to give Schedule 6 employees the same rights as bargaining unit employees and the Board has no power to grant such rights.

The Result

The issue herein is clearly related to Conditions of Employment and in particular “hours of work”. Section 30(1)(h) of the Act authorizes the making of regulations relating to “hours of work". Regulation 881 Part II Section 9(1) deals specifically with the "hours of work" required of each employee. Schedule 6 employees must work a minimum of 36¼ hours but there is no maximum. The only reference to travelling time is found in Section 10.

In opening her submission counsel for the Ministry said the grievors seek compensation "for travel time which is over and above what they consider to be a reasonable amount of travel time". Counsel then added that if there could be a claim for travel time it had to be related to “overtime”.

On the other hand, counsel for the grievors disclaimed that the grievance was related to “overtime” as she conceded that as no maximum hours for Schedule 6 employees was established, they clearly could not claim “overtime".

The grievors in their grievance made no claim for either travel time compensation or overtime. They merely expressed dissatisfaction with the new travel policy guidelines “on the grounds that it is unfair". They have not said what remedy they are seeking. Is it monetary compensation? "Is it a total roll-back to the previous policy? Is it a partial roll-back based on this Board's notion of fairness? Is it an order compelling negotiations? These would appear to be the only possible positions, and if so, have we the power to grant any of these remedies?"

Counsel agreed, and we agree, that the grievances are related to hours of work and terms and conditions of employment. By its action management changed a working condition related to travel time from a loose arrangement involving the discretion of the employees to a definite one using the formula outlined on page 2. In the Cornwall example used, the grievors would be required to perform 34 hours of audit work each week. This is 2¼ hours less than the minimum required by the Regulation for Schedule 6 employees as 2¼ hours is absorbed by management in calculating travel time. In an effort to settle the grievances, the grievors suggested prior to the hearing (letter of February 13) that the Employer and Employee should each bear travel time equally. This was refused. We accordingly must conclude in an answer to the questions posed by us, that the grievors are asking the Board to assume jurisdiction to hear evidence relating to the issue of compensation for travel time and decide what is just and reasonable.

It is our conclusion that we do not have jurisdiction to do what the grievors ask. In her argument counsel for the grievors suggested that the grievors should receive at least the same treatment as members of the bargaining unit. In effect, we were being invited to make such a finding. We can find no authority in either the Act or Regulation for so doing. Working conditions including travel time have been negotiated by bargaining unit employees. If changes are made they could grieve but would have to show a breach of the collective agreement to succeed.

The Act specifically deals with a deputy minister’s powers to suspend, remove from employment, dismiss and release from employment (Section 22(1)). This section circumscribes the management rights of the Employer to the extent indicated. The Employer has the right to fix hours of work and has done so (Section 9 of the Regulation). That too circumscribes management’s rights. The same applies on the subject of "overtime". Section 10 of the Regulation deals with “overtime” and "stand-by time" and also with the matter of travel time compensation. That too limits the Employer's rights. But it is agreed we are not dealing with “overtime”. There is no allegation that either Section 9 or 10 have been breached. Counsel for the Employer asks that we find that the only working conditions or terms of employment which may be reviewed by this Board are those specifically dealt with in the Act or Regulation. It is not necessary that we make such a finding in dealing with these grievances. We have no hesitation, however, in finding, that on the facts herein, we do not have jurisdiction to amend the travel policy guidelines by accepting either the grievors' views as to what is fair or to impose our own views on the subject on the parties. Furthermore, we have no right to find they are either fair or unfair. If they are to be changed it can only be done by negotiations but we have no authority to order that this be done.

For all the above reasons, we find we have no jurisdiction and the grievances are dismissed.

Dated at Kingston this 28th day of August, 1984.